Shocking news rocked many would-be parents in the Bay Area, as a San Francisco fertility clinic found that thousands of frozen eggs may have sustained damage due to a system failure.
Pacific Fertility Clinic reported that a liquid nitrogen failure in a storage tank was the source of the failure, affecting 400 patients. The director of the facility told the press that the company thawed a few eggs and tested their viability. A few tested eggs were viable, but some of the embryos sustained damage in the process. Now, a San Francisco couple wants to seek damages for negligence and the emotional distress of losing their chance at parenthood. Will they have a case? Can the Pacific Fertility Clinic be held accountable for malpractice?
Under California law, the following elements must apply in order to pursue a medical malpractice claim:
A recent news story reported that the couple will pursue damages not only for medical malpractice and negligence, but also for breach of contract. In other words, they claim that the facility failed to provide the services rendered in accordance with the terms of the contract.
The interesting thing about this case is that the couple involved does not know whether their embryos are viable. The only way to determine if the embryos sustained damage is to thaw them for implantation. The couple states they’re not currently in a position to do so, but want damages for the potential harm they suffered.
On the other hand, is there a case if the embryos are indeed viable? If the procedure works, then the defense could make the argument that the couple did not suffer any harm, even if the facility committed negligence. Even if the couple were to argue damages for emotional distress, was the facility’s conduct “intentional or reckless”?
Unfortunately, this is not the only case where a couple received devastating news about their eggs and embryos. University Hospitals in Cleveland reported a similar breach around the same time that affected hundreds of patients.
Egg freezing has become a popular practice, especially in the Bay Area. In a recent attempt to attract the industry’s top talent, a Silicon Valley employer recently started adding egg freezing as a benefit of employment. Facebook and Apple, for example, will pay for women to freeze their eggs if they want to delay childbearing.
Experts estimate that a woman who freezes her eggs has a 30% chance of becoming pregnant if she freezes her eggs at 25 or younger. As the eggs become older, they become less viable.
Egg freezing is still a relatively new concept, as the American Society of Reproductive Medicine only lifted the experimental label two years ago. As time progresses, it will be interesting to see how cases like these develop and set a new precedent for medical malpractice.