Family Law

Is Lost Embryo Litigation The New Asbestos?

In this context, attention to detail and meticulous record-keeping should be the bare minimum features of the standard of care.

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Earlier this month, a couple filed suit against a fertility clinic in New York. They claimed negligence, fraud, intentional inflection of emotional distress, and negligent infliction of emotional distress. The complaint tells a story of an especially rough road of fertility treatments. Before their family was complete, the couple, Christopher and Nicole Mooney, went through 13 egg retrievals and 15 embryo transfer procedures. That is a lot!

The couple seeks damages from the clinic and its doctors for, among other things:

  • Transferring a different embryo than intended (instead of a healthy “normal” one, an embryo that had been designated with a “special consideration” status was used).
  • “Losing” an embryo for a year and half (the healthy embryo they thought had already been transferred showed up for transfer 18.5 months later).
  • Transferring a different number of embryos than they were told (they were told two, but medical records showed only one).
  • Prescribing medications to Nicole in amounts inconsistent with medical norms (twice the dosage!).
  • Prescribing medications to their gestational carrier for a time period inconsistent with medical norms (only 7 days, versus the usual month-ish).

The clinic, New York Fertility Institute, denies the couple’s allegations, stating they were surprised by the lawsuit, never lost the couple’s embryos, and never transferred the wrong number of embryos. Sounds like some pretty fundamental factual issues in the case!

What Does The Expert Say?

Colleen Quinn is a Virginia attorney with a strong assisted reproductive technology (ART) law practice and litigation practice — a unique combination, and one well-fitted for the new rising tide of ART litigation. Quinn explained that “embryos are actually pretty easy to lose or mis-identify when clinics do not maintain careful record keeping and accountability.” She described how embryos are stored in tiny little straws “as small as a sewing needle” and each straw has to include identifying information. That does sound tough — and open to human error. And clearly those of us who can’t find our keys most days should steer clear of a profession in embryology.

Making The Grade

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Quinn further explained that embryos are typically graded on their level of viability. However, not all grading is the same, depending on the clinic, or even the person doing the grading. Some may be viable and some may not be viable — or some may even be semi-viable. How they are marked in such teeny-tiny space in the cryogenically preserved minuscule straw, versus what is placed on paper, requires attention to detail and meticulous record-keeping. But in this context, attention to detail and meticulous record-keeping should be the bare minimum features of the standard of care, when each and every embryo, and the viability or “grading” of each, is essential to the patients who have paid so much for the creation of each and every embryo — as well as the hope that the patient has for each embryo to be their future child.

Quinn believes that patients should have access to information as to the exact status of each of their embryos and their viability. How it was graded, where and how it was kept, whether it was kept in the same vessel or straw as other embryos and if so, which ones, as well as which ones were thawed and discarded, and ultimately, which ones were transferred to the patient’s or gestational carrier’s uterus. “As both a litigator and ART attorney, I am seeing more and more of these lost or misplaced or mislabeled embryo cases. This could be avoided with better and more careful record-keeping. I know most reputable clinics and fertility doctors do their absolute best — however, we are talking about super tiny, yet mega-valuable material — that has been created at both a high financial and emotional cost!”

Embryo Transportation

Although the Mooney case does not involve the transportation of embryos from one clinic to the other, Quinn notes that this is a point in the process especially vulnerable and ripe for litigation. When embryos are transported to another clinic, the record-keeping of what got sent and what got received is critical. “I have seen so many mishaps in the transportation and accounting process.”

Time For (More) Regulation

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The Mooneys and their attorney have stated that the purpose of the lawsuit is not just to obtain monetary damages, but also, at least in part, to encourage greater regulation of fertility clinics. Of course, greater regulation often means greater cost, and fertility treatment is already prohibitively expensive for many. But given the devastation and heartbreak caused by missing embryo and mixed-up embryo cases in the United States, it does seem appropriate that there be strict record-keeping requirements. The alternative, for some clinics, will be more lawsuits like the Mooneys. And that just means going to court when tragic losses happens, as opposed to preventing them in the first place.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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