Medicolegal Issues

Embryo mix-up debacles: Is there liability?

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A discussion of IVF-related injuries and the evolving legal considerations



CASE Embryo mix-up with 2 couples

A lawsuit was recently filed in California by a couple after the woman carried and gave birth to “the wrong child.” This was the second full-term pregnancy for the couple. The couple had undergone an unsuccessful in vitro fertilization (IVF) cycle in October 2018. The next IVF cycle in 2019 led to the birth of a daughter on September 24, 2019, who is the subject of this case.1

At the time of birth, the couple suspected something was wrong because the baby had “jet-black hair and a complexion that was darker” than their complexions. The couple eventually obtained a DNA test, which confirmed in November 2019 that this was not their biological child.1

A few weeks later, they learned that another woman who went to the same IVF clinic gave birth to a female baby 1 week after their daughter was born. Similarly, that baby did not resemble the parents, and DNA testing confirmed the baby belonged to the first couple. The couples ultimately exchanged the babies.1

The legal claim filed against the IVF center and its owner (an obstetrician) was for breach of contract, medical malpractice, and infliction of emotional distress, including experiencing “disassociation” on the part of the couple(s). Each couple felt they did not get to experience the birth of their biological child, and, of course there was considerable distress in the process of learning that the child was not theirs and exchanging the birth child for the biological child. In addition, the couple who filed the suit had another child (now age 7 years), who begged them to keep the baby to whom they gave birth. The couple also reported experiencing panic attacks as a result of the events.1

Medical considerations

As of 2018, more than 8 million IVF babies had been born, with the first in 1978 in the United Kingdom.2 Advances in science and technology have improved the process. Storage tanks now have alarms and several safeguards to monitor the level of liquid nitrogen and immediately notify key personnel if levels are low (FIGURES 1 and 2). Preimplantation genetic testing is also readily available to assess the embryo prior to transfer into the uterus and identify various genetic problems.

Guidelines for embryo straw labelling are provided by the College of American Pathologists and the Centers for Disease Control and Prevention. The American Society for Reproductive Medicine (ASRM) also provides guidelines. When an error occurs, disclosure is recommended and ethical and legal counsel should be involved. Failing to disclose can lead to professional penalties.4

Unfortunately, despite these advances and guidelines, embryo mix-ups like the one in the above case do occur and receive public notice (See “Cross country embryo mix-up cases”).5,6 A report from the University of Nevada assessed liability for embryo mix-ups in US fertility practices from 2000 to 2020.7 They evaluated 184,015 IVF cycles with 176 claims. Payments were made to plaintiffs in 21 cases, resulting in $15 million of awarded damages (average award was $199,188).7 The most common problem was in the embryology laboratory with an overall incidence of 0.03% of the total number of IVF cycles.7 To avoid damages, the authors emphasized the importance of following labeling guidelines when storing embryos, considering a 2-step read-back method prior to embryo transfer, and offering genetic testing when a discrepancy is noted in the record (TABLE).7

Other medical liability considerations

Embryo mix-ups are not the only source of problems and potential liability in IVF. At the 2021 Association of Sexual and Reproductive Medicine Annual Meeting, Applebaum et al presented results from a comprehensive review of malpractice litigation involving IVF in the United States.8 Using the legal database NEXIS Uni they identified 50 cases between 1986 and 2020 (32% of which were filed in New York state). Common thematic elements among patient allegations were embryology errors (eg, lost or destroyed embryos or incorrect sperm or egg donor), errors in preimplantation genetics, surgical or medical errors/complications, or misdiagnosis (eg, sexually transmitted disease screening or malignancy).8 Overall, the most common plaintiff complaint was negligence (26 cases) due to informed consent–related issues (9 cases), wrongful life or birth (9 cases), or negligent or intentional infliction of emotional distress (5 cases).8

In 48% of cases, the verdict was in favor of the defendant; it was for the plaintiff in 36% of cases and ongoing proceedings or partial judgement accounted for the remaining cases.8 Damages ranged from $4,171.45 to $50 million. The authors emphasized specific defense strategies, including the importance of careful labeling and handling of embryos, prompt disclosure when an error does occur, and awareness of the specific state statute(s) of limitations for medical malpractice claims.8

Continue to: Legal considerations...


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