Legal considerations
The case at the beginning of this article is a “mix-up” case, in which an IVF center implanted the wrong embryo, resulting in the birth parents not being the biological parents.1 As in that case, there may be (but are not always)6,9 2 mix-ups, so that 2 couples have each other’s biological children. These cases may go unnoticed by the birth parent if the physical appearance is not unexpected and the parents never do genetic testing, or if the IVF center does not discover the error and inform the parents. Infrequently the cases make the news or the courts.10,11
News accounts are not trials, and we do not suggest that all the facts discussed in news reports on the case described here are complete—or even accurate in the details reported. They are generally 1-sided, so there are other perspectives. To consider the legal issues, however, we will assume for discussion only that the facts are as they have been reported in the news coverage—with the understanding that the discovery and trial processes would undoubtedly bring to light many other important facts or corrections.
Negligence
Although there are several potential bases for liability (ie, contract or warranty claims, a form of product liability/defect) in mix-up and other artificial reproductive technology (ART), negligence or malpractice seem most likely.12 “Negligence” here is intended to be simple negligence but may also include gross negligence or recklessness.
Although the incidence of errors in ART is unknown, there is limited evidence that suggests it is not a rare event. One study suggested >20% of fertility clinics knew of errors in processing or handling donor samples and embryos for implantation.13 Another study in the United Kingdom found that 1 in 1,000 IVF embryos were implanted in the wrong woman.14
Was there negligence? The first question in a malpractice or negligence-type action is, was there a professional relationship between the plaintiff who is claiming harm and the professional or organization defendant? The next question is whether the defendant was reasonably careful given the circumstances—that is, did the physician meet the “standard of care”? This is sometimes described as whether the professional’s actions would be acceptable (ie, reasonably prudent within the profession or specialty). If there was negligence, then the next question is, did that negligence cause an injury to the plaintiff?15
Determining the standard of care. The nature of the expected standard of care is dependent, in part, on the potential consequences of an error. For example, the care required when there is a significant risk of death from an error would be considerably more cautious than for an error that might result in small property damage. In this case study, a mix-up error is likely to be less severe than death, but is very substantial in terms of emotional harm and disruption. Thus, considerable care and attention would be expected to avoid these errors. They should be a “never” event. Institutions and physicians should give considerable attention to their processes and procedures to avoid the possibility of a mix-up error.16
Where did the negligence occur? There is an old tort doctrine “Res ipsa loquitor” (RIL) that means, “The thing speaks for itself.” Although there are several technical rules around the application of RIL as a presumption of negligence, it comes down to the proposition that some injuries do not occur without negligence. A traditional medical example is the sponge left in a patient during surgery—ordinarily that does not happen without some negligence. For RIL to be applied, usually the mechanism by which the injury occurred had to be under the control of the defendant (or the agents of the defendant).
The “mix-up” of embryos is an example of the kind of error that would not likely occur without negligence.17 But the embryo may not be in the exclusive control of any 1 institution. For example, the mistake could be made by the IVF center (or its employees), a separate facility that has processed or cryogenically stored the genetic materials, and independent physicians (not employees or agents of the center). Therefore, it is necessary to pinpoint where the negligence occurred and who is legally responsible. In some cases, a health care provider must take steps to ensure that its contractors have sufficient safeguards to avoid unnecessary harms. For example, an IVF center that uses an external cryogenic storage facility may have some obligation to know that the genetic material returned to the center is the same material that the center provided the storage facility in the first place and is properly identified.18
Assessing damages
From the facts as we have them, it appears that there must have been negligence that caused the mix-up of the embryos in the original case. It also appears reasonably clear that the negligence resulted in harm to both sets of parents and their families. This would suggest that the families should recover substantial damages. But that, somewhat surprisingly, may not be the case.19 Several legal principles may limit the availability or size of damages in mix-up cases. Also, it is worth remembering that there are differences in how states treat the different types of damages in these cases. Although the case was filed in California, we’ll take a more national view of the damages issue.
Not all harm is treated as equal. The first problem facing plaintiffs in mix-up cases may be the fact that they have suffered only emotional harm, without any physical injury. Traditionally, the courts have been reluctant to allow recovery in negligence for purely emotional injuries. Also “intentional” infliction of emotional distress does permit financial recovery, but generally “negligent” infliction of emotional harm traditionally has not. In part, this was because of the fear of unwarranted (and difficult-to-assess) claims of emotional harm that are not related to a physical harm. Some states developed a “zone of danger” exception (eg, where someone was almost hit by a car) or allowed some emotional injury recovery if there were “physical manifestations” of the emotional harm. In short, depending on the state’s rules, negligence that causes purely emotional harm may not be compensable.20
State-based malpractice “caps.” Another limitation on emotional injuries is the “caps” on malpractice damages enacted by several states (including California, where this mix-up case occurred). Therefore, if a mix-up case is determined to be a malpractice case under state law, emotional suffering damages (which are non-economic damages) may be limited to the cap—$250,000 in California, for example—even if the state allows damages for emotional injuries without physical injuries.
The rare exception. Very careless labeling or handling of the identity of the embryo could at the extreme be considered gross negligence or recklessness. There are relatively inexpensive and easy procedures that could easily avoid what is likely to be significant harm to families (including emotional upset).21 Institutions that callously fail to use those procedures might be seen by some courts as reckless, or in outrageous cases, even intentional. An example would be the University of California Irvine Center for Reproductive Health case, in which physicians intentionally (without consent) used patients’ ova, fertilized them, and then implanted them in other patients, with at least 15 births, many lawsuits, and multimillion dollar settlements.22 In “intentional” cases, limitations on emotional injuries would usually not be major barriers to recovery of damages. However, those are legal stretches, and recovery is the exception rather than the rule.23
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