Lawsuit frequency and claims basis over lost, damaged, and destroyed frozen embryos over a 10-year period

Gerard Letterie, Dov Fox, Gerard Letterie, Dov Fox

Abstract

Objective: To review the claims, claims basis, and frequency of lawsuits over lost or damaged frozen embryos and to estimate their frequency over a 10-year interval.

Design: Retrospective analysis of case law.

Setting: Private in vitro fertilization clinic and school of law.

Patients: None.

Interventions: Case law identified using Bloomberg Law, Westlaw, and Lexis Nexis databases for coverage of court dockets regarding allegations and claims.

Main outcome measures: Lawsuits brought and settled in state and federal court, with data extracted included claims basis and location in federal or state courts.

Results: We reviewed case law from January 1, 2009, to April 22, 2019, using the terms frozen, discarded, lost, and damaged embryo/s, and calculated clinical cases using frozen embryos from Centers for Disease Control and Prevention data. We identified 133 cases: 122 and 11 lawsuits in the state and federal court dockets, respectively. Of these, 87 cases involved alleged freezer tank failure in California and Ohio in 2018-2019. In the remaining 44 cases, the majority (37 cases) were brought for personal injury, breach of contract or warranty, product liability, professional negligence, unfair business practices, and miscellaneous tort. A minority (7 cases) were brought for medical malpractice. During this interval, a total of 398,256 embryo-thaw procedures were reported nationally.

Conclusions: Allegations range from business practices to product liability and are seldom for medical malpractice. Our results suggest that best practices in storage of frozen embryos should include not only improvements in hardware and monitoring of storage conditions of specimens but also setting standards for communications among patients, providers, and embryology laboratories regarding disposition of embryos.

Keywords: Lost embryos; lawsuits over cryopreserved and damaged embryos.

© 2020 The Authors.

Figures

Figure 1
Figure 1
Lawsuits for lost, damaged, and destroyed frozen embryos: cases by incident category.
Figure 2
Figure 2
Lawsuits for lost, damaged, and destroyed frozen embryos: causes of action in closed cases.

References

    1. Friedler S., Giudice L.C., Lamb E.J. Cryopreservation of embryos and ova. Fertil Steril. 1988;49:12–18.
    1. Maheshwari A., Pandey S., Amalraj Raja E., Shetty A., Hamilton M., Bhattacharya S. Is frozen embryo transfer better for mothers and babies? Can cumulative meta-analysis provide a definitive answer? Hum Reprod Update. 2018;24:35–58.
    1. Cohen I.G., Fox D., Adashi E.Y. Losing embryos, finding justice: life, liberty, and the pursuit of personhood. Ann Intern Med. 2018;169:800–801.
    1. Basile N., Garcia-Velasco J.A. The state of “freeze-for-all” in human ART. J Assist Reprod Genet. 2016;33:1543–1550.
    1. Sha T., Yin X., Cheng W., Massey I.Y. Pregnancy-related complications and perinatal outcomes resulting from transfer of cryopreserved versus fresh embryos in in vitro fertilization: a meta-analysis. Fertil Steril. 2018;109:330–342.
    1. Fox D. Birth rights and wrongs: how medicine and technology are remaking reproduction and law. Oxford University Press; Oxford: 2019. Procreation deprived; pp. 100–112.
    1. Snow K., Gardella R., Edwards E. NBC Today; March 27, 2018. University Hospitals fertility clinic failure affects more patients than thought. Available at.
    1. Cha A.E. Washington Post; March 14, 2018. Class action lawsuit filed against Pacific Fertility for loss of up to a thousand embryos and eggs. Available at:
    1. Letterie G. Outcomes of medical malpractice claim and assisted reproductive technology over a 10-year period from a single carrier. J Assist Reprod Genet. 2017;34:459–463.
    1. Daar J., Mutcherson K. Intersections in reproduction: perspectives on abortion and assisted reproductive technologies. J Law Med Ethics. 2015;43:174–178.
    1. Wendy and Rick Penniman v . Court of Common Pleas; Cuyahoga County, Ohio: March 30, 2018. University Hospitals Health System, Inc. Available at:
    1. Centers for Disease Control and Prevention Assisted reproductive technology success rates. Available at: Accessed October 1, 2019.
    1. Ethics Committee of the American Society for Reproductive Medicine Disclosure of medical errors involving gametes and embryos: an Ethics Committee opinion. Fertil Steril. 2016;106:59–63.
    1. Micaelson Z.P., Bondalapati S.T., Amrane S., Prosser R.W., Hill D.M., Gaur P. Early detection of cryostorage tank failure using a weight monitoring system. J Assist Reprod Genet. 2019;36:659–660.
    1. Feinberg R. Out of the freezer and into the policy fire: quandaries in reproductive cryopreservation. Hastings Cent Rep. 2019;9:6–7.

Source: PubMed

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