Health Care / Medicine

Fertility Clinics, Beware Of Your Flawed Eggs

Clinics should test their donated genetic material, or, at a minimum, be clear with patients what testing they are or are not doing.

By  
on

Recently, I wrote about this case in which parents of children with the “Fragile X” genetic mutation sued their doctor and clinic, because they gave them donor eggs that weren’t tested for Fragile X syndrome, a condition that causes a host of problems.

The clinic which shall not be named — except that it was called Reproductive Medicine Associates of New York — had assured the hopeful parents that they screened the donor candidates for “all known genetic conditions for which testing is available.”

The clinic did not specify which conditions were screened. But, given that Fragile X syndrome is well-known and testing is indeed available for it, clearly the clinic’s statement was not accurate. “Some experts even argue that Fragile X should be a high priority test, because it’s common — the frequency of Fragile X carrier state in women is up to 1 in 100.  It is a genetic condition that can be passed down through the female genetic-contributor alone. Importantly, that means that there’s no worry about any male genetic contribution, such as with other conditions like cystic fibrosis,” notes Dr. Alex Polotsky of University of Colorado Advanced Reproductive Medicine.

It’s All About The SOL. While the case had a lot of interesting aspects, the most recent proceedings involved the dry issue of New York’s medical malpractice statute of limitations. The statute requires that a suit must be brought against the doctor within two and half years of “the act, omission or failure complained of.”

But what that meant made all the difference. Because if you measured from the date of the embryo transfer, the parents missed their deadline. But if you measured from the date of the child’s birth, the plaintiffs could still bring their claim. So the question came down to when the clock started to run.

The Court Has Spoken. In a 5-1 decision, the court sided with the plaintiffs. It held that a narrow exception to the normal statute of limitations exists with respect to the timing of the malpractice-causing act.

Drawing from a 1978 case, the majority argued that the court had previously recognized a “narrow cause of action permitting parents to recover the extraordinary care treatment expenses ‘accruing as a consequence of the birth’ of a child with a disability” in which the breach of duty was the proximate cause of the birth. The majority argued that because the injury is tied to the child, there is no recognizable claim until that child has been born. And therefore, the timer shouldn’t start prior to the ability of the plaintiffs to make a claim.  As I alluded to before, the opposite result might have forced parents to absurdly bring lawsuits long before they could ever know about malpractice issues.

Sponsored

One interesting fact is that the clinic found out about the donor testing positive of the genetic condition after the birth of the children, and did the right thing and informed the plaintiffs of their issue. At that point, the two sets of parents (aka soon-to-be plaintiffs) proceeded to have their children tested. One set of parents found their singleton child tested positive. The other parents found one of their twins tested positive.  This fact is neither here nor there with respect to the legal arguments, but I commend the clinic for at least confessing to their mistake.

It’s Not About Discovery Of The Problem. Of course, an obvious alternative line for starting the clock would be whenever the parents discover that their doctor and clinic screwed up. But New York law disfavors what are called “discovery” rules — no, not discovery like interrogatories and depositions, but rules about when you find stuff out — for malpractice claims. The New York legislature was concerned that such rules would leave medical practitioners on the hook indefinitely.

“Wrongful Birth” Dissent. Only the dissent uses the ominous and controversial term “wrongful birth,” and argues that the majority is creating an unjustified “wrongful birth” exception to the statute. Although the underlying issue isn’t what I’d consider classically political, the lone dissenter was the only Republican on the court.

Losing the SOL issue, of course, is a significant loss for the clinic. It’s also a warning to others. Clinics already know that they should be making accurate representations about the testing of donated genetic material, as a good business proposition. But now it’s even more critical, because lawsuits are definitely going to come their way. So the net result, clinics should test their donated genetic material, or, at a minimum, be clear with patients what testing they are or are not doing.

Sponsored

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

Topics

, , , , , , ,