Hospital liability in cases of medical fraud: the contractual relationship prevails
In 1988, a gynaecologist used his own sperm during an artificial insemination treatment. More than thirty years later, the Court of Appeal Arnhem-Leeuwarden held that the hospital is contractually liable towards the mother and liable in tort towards the children. Isala's reliance on limitation failed.
Isala hospital liable for 1988 KIE fraud
On 13 January 2026, the Court of Appeal Arnhem-Leeuwarden held that Stichting Isala Klinieken is liable for the loss suffered by a mother and her three children as a result of the conduct of a gynaecologist who, in 1988, used his own sperm during an artificial insemination treatment. This judgment is the appeal from the judgment of the District Court Overijssel of 15 May 2024 (ECLI:NL:RBOVE:2024:2576), in which the district court had dismissed the claims on the grounds of limitation and the absence of a contractual relationship with the hospital.
In 1985, the mother had been referred by her general practitioner to the fertility department of the Sophia Hospital in Zwolle — Isala's legal predecessor. It was agreed that she would be inseminated with the sperm of her then husband (KIE: artificial insemination with the husband's own sperm). The gynaecologist, however, used his own sperm. On 1 November 1988, triplets were born. The mother only became aware of the gynaecologist's actual conduct on or around 8 September 2021, following the publication of the report of the Braat committee.
The district court had held that the claim was time-barred and that the hospital fell outside the contractual relationship. The court of appeal reaches the opposite conclusion on both points.
Court of appeal: contractual relationship with the hospital and limitation period set aside
The first question was whether the mother had concluded a treatment agreement with the hospital, or solely with the gynaecologist in person. Section 7:462 DCC — the central liability of the hospital — had not yet entered into force at the time of the treatment in 1988. The court of appeal assesses liability on the basis of the old Civil Code. What is decisive is whether the mother could legitimately expect that she was also entering into a contractual relationship with the hospital. The court of appeal answers that question in the affirmative: the mother was referred to the fertility department, underwent various examinations within the walls of Sophia, was seen by several practitioners, and the gynaecologist was the only fertility doctor within the hospital.
The second point in dispute concerned limitation. The event causing the loss took place in 1988. The absolute limitation period of twenty years under Section 3:310(1) DCC had therefore expired in 2008 — well before the mother knew what had happened. The court of appeal holds that Isala's reliance on limitation is unacceptable by the standards of reasonableness and fairness within the meaning of Section 6:2(2) DCC. Decisive are: the serious culpability of the covert conduct, the fundamental infringement of personality rights, the fact that the medical file is still largely available, and the circumstance that the claims were brought shortly after the facts came to light.
As regards the children, there was no contractual relationship with the hospital. The court of appeal holds that Isala is liable towards them in tort (Section 1401 of the old Civil Code). The contractual duty of care towards the mother extended also to the interests of the children born later, whose interests were so closely involved in the performance of that agreement that a breach of it also qualifies as a wrongful act towards them.
What does this case teach about liability of medical institutions?
First: the central liability of the hospital for the acts of specialists working within the walls of that hospital is — even without the Medical Treatment Agreement Act (WGBO) — well defensible on the basis of the patient's legitimate expectations. The formal organisational structure does not detract from the question of how the contractual relationship could reasonably be understood from the patient's perspective.
Second: the absolute limitation period is firm, but not inviolable. In the case of covert conduct, where the injured party can by definition only discover the facts at a late stage, Section 6:2(2) DCC leaves room for setting it aside. The Van Hese/De Schelde factors provide guidance, but the outcome is strongly coloured by the facts.
Third: third parties — in this case the children — who are not party to an agreement but whose interests are so closely intertwined with its performance, may have an independent claim in tort. When constructing a liability claim, this always calls for attention to the legal bases for each claiming party separately.
Frequently asked questions
Is a hospital also liable if it knew nothing of the fault itself?
Yes, in principle it is. The gynaecologist's attributable failure counts as the hospital's own failure, given that the mother could legitimately expect a contractual relationship with the hospital. The fact that the hospital itself had no knowledge of the gynaecologist's conduct does not detract from this contractual liability.
Can a claim still succeed after more than twenty years?
In exceptional cases, yes. The absolute limitation period of Section 3:310(1) DCC can be set aside where reliance on it is unacceptable by the standards of reasonableness and fairness. That requires a weighing of all the circumstances by reference to the Van Hese/De Schelde factors. In the case of covert conduct and fundamental infringements of personality rights, that threshold has proved attainable.
Do children born as a result of medical fraud have an independent claim?
The court of appeal confirms that they do. Children who are not party to the treatment agreement may have an independent claim in tort, where their interests are so closely involved in the performance of that agreement that a breach of it also qualifies as a wrongful act towards them.
ECLI:NL:GHARL:2026:127, Court of Appeal Arnhem-Leeuwarden, 13 January 2026
Cited case law
Courts of Appeal: ECLI:NL:GHARL:2026:127
District Courts: ECLI:NL:RBOVE:2024:2576