Page 6 - Cleveland Vol 5 No 3

Catastrophe and
Consequences:
e University Hospitals Fertility Clinic Case
BY BROWNE LEWIS
THE CATASTROPHE
For people who could not conceive the traditional way, the frozen eggs and embryos represented dreams. Over a weekend in March of 2018, those dreams turned into nightmares as a result of a series of avoidable hu- man errors. In several letters sent to the impacted persons and a video on its Facebook page, representatives of University Hospitals (UH) stated, “ ese failures should not have hap- pened, we take responsibility for them---and we are so sorry that our failures caused such a devastating loss for you.” Moreover, UH supplied the
children; (2) a refund of the storage fees they had paid; and (3) a waiver of future storage fees for seven years. UH expressed the hope that these ac- tions would restore the patient’s trust in the facility.
THE CONSEQUENCE
In the dark a ermath of receiving the life-altering news, some of the patients settled their cases with UH for medical services and/or money. Other patients were not interested in repairing trust. ey looked to the law to make them whole. It is unclear if they were motivated by a thirst for
breach of contract. e elements of bailment are met because (1) UH placed the frozen eggs and embryos in their storage tanks; (2) the patients paid storage fees; and (3) the eggs and embryos were destroyed. Moreover, the plainti s will probably be able to convince a jury that UH was neg- ligent. UH had a duty to make sure that the eggs and embryos remained frozen until they were ready to be used. at duty was breached when UH permitted the eggs and embryos to remain in a storage tank that its employees knew was not working properly. e cause of the destruction
potential parents with several impor- tant facts. First, as a result of a storage tank failure, approximately 950 pa- tients lost more than 4000 frozen eggs and embryos. Second, the remote alarm system on the tank that was designed to alert UH employees that the temperature inside of the tank was dropping to a dangerous level was turned o by an unknown person for an unknown amount of time. ird, the liquid nitrogen automatic ll de- vice on the storage tank involved had been malfunctioning for weeks. Fourth, UH employees had failed to transfer the frozen eggs and embryos from the defective storage tank to a replacement storage tank provided by the manufacturer. In addition to its sincere apology, UH o ered the af- fected patients (1) medical services to help them ful ll their desires to have
justice or revenge, but those patients hired lawyers to le suit. e primary causes of action involved in the cases are breach of contract, negligence, bailment, breach of implied warranty of tness and violation of the Magnu- son-Moss Warranty Act. e law fa- vors the plainti s with regards to their stated causes of action.
Prior to the extraction of the eggs and the creation of the embryos, the patients signed Informed Consent (IC) forms and Consent to In Vitro Fertilization (IVF) agreements. e language in those agreements prom- ised that eggs and embryos would be “stored in the in vitro fertilization lab- oratory in the frozen condition” until they could be fertilized or implanted. Because UH readily admitted that the eggs and embryos were pre-maturely thawed out, the plainti s can prove
of the eggs and embryos was UH’s failure to ensure that the storage tank functioned properly. Damages are obvious because UH admitted that the eggs and embryos were no longer viable. UH violated the implied war- ranties of tness when it breached its promise to maintain the frozen eggs and embryos in a viable condition.
Plainti s may be able to use much of the information UH included in its letters to the impacted patients to bolster their cases. Nonetheless, UH’s remorse did not prevent it from hir- ing attorneys to mount a defense. ose attorneys led a motion to dis- miss the cases because the plainti s did not attach a certi cate of merit to their complaints. e certi cate is required to bring medical malpractice cases. UH would have been advan- taged if the court classi ed the cases
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