Going through fertility treatments can be one of the most anxiety-inducing, expensive, time-consuming, and devastating experiences of a couple’s lives.

When partners turn to a fertility specialist or a particular fertility clinic in order to conceive, that couple likely has a history of infertility, or trying unsuccessfully to conceive.

Once a couple decides to seek help from a fertility specialist or a fertility clinic, that couple already knows that fertility procedures are likely to cost tens of thousands of dollars.

Furthermore, partners need to be prepared for unsuccessful fertility treatments that are not the result of a medical error or mistake. Yet in some cases, unsuccessful fertility treatments, patient injuries, or other undesired outcomes do result from a fertility clinic’s negligence or a fertility doctor’s malpractice.

To be clear, there are many different types of harm or legal injury that can result from negligence at a fertility clinic.

If you suffered a legal injury due to negligence or a mistake at a fertility clinic, you may be eligible to file a fertility clinic lawsuit.

It is important to learn more about how these claims work and what your options might be for seeking compensation. An experienced fertility clinic lawsuit attorney can begin working with you on your case today.

About Infertility Clinics & IVF Treatment

In order to understand why fertility clinic lawsuits occur, it is important to learn more about infertility and the role of fertility specialists and clinics in managing infertility.

According to the U.S. Centers for Disease Control and Prevention (CDC), infertility is defined as not being able to get pregnant after at least one year of unprotected sex.

Since fertility declines with age, infertility may be defined as an inability to conceive after six months or more of trying for women aged 35 and older.

A couple dealing with infertility will often see a reproductive endocrinologist, which is “a doctor who specializes in managing infertility.” Typically infertility results from a problem at one of the following stages of pregnancy according to the CDC:

  • Egg is released from one of a female’s ovaries, which is a process known as ovulation.
  • Sperm from a male must fertilize the egg, which is a process that involves the sperm joining with the egg.
  • Fertilized egg then must go through the female’s fallopian tube toward the uterus or womb.
  • Fertilized egg must attach to the inside of the female’s uterus, which is a process known as implantation.

Infertility clinic errors can involve mistakes made or negligence in fertilizing or implanting the egg, as well as other types of errors that can occur in the process of fertilizing or implanting an egg.

Fertility clinics can also be held accountable in some circumstances for errors that occur in the tests designed to determine what is causing infertility for a particular couple.

Types of Fertility Treatment

There are a wide variety of fertility treatments reproductive endocrinologists and fertility clinics use to help couples conceive.

The following are some of the most common types of fertility treatments and, often, the bases for lawsuits against fertility specialists and clinics:

Intrauterine insemination (IUI): According to the American Pregnancy Association, intrauterine insemination (or IUI) is a particular type of fertility treatment that “involves placing sperm inside a woman’s uterus to facilitate fertilization.” With IUI, practitioners are aiming to “increase the number of sperm that reach the fallopian tubes and subsequently increase the chance of fertilization.” As the American Pregnancy Association clarifies, “IUI provides the sperm an advantage by giving it a head start but still requires a sperm to reach and fertilize the egg on its own.” In most cases, IUI is one of the early options for fertility treatments since it is less invasive than IVF and costs significantly less money.

In vitro fertilization (IVF): The Mayo Clinic defines in vitro fertilization (or IVF) as “a complex series of procedures used to help with fertility or prevent genetic problems and assist with the conception of a child.” To be clear, IVF is not a single process like IUI. Rather, it involves the retrieval of eggs from a woman’s ovaries and the fertilizations of those eggs in a lab. It also involves a doctor prescribing a woman with certain drugs to increase the chance of implantation. Once the eggs are fertilized in a lab setting, they are then transferred to the woman’s uterus. To do a full IVF cycle takes approximately three weeks. Depending upon the specific needs and preferences of a patient, IVF can use the eggs and sperm of the parties involved in the pregnancy, or it can use donor eggs and/or donor sperm. In some cases, IVF involves the implantation of fertilized eggs into a gestational carrier. As you can see, there are numerous steps involved in IVF, and mistakes can occur at nearly any stage of the process.

Intracytoplasmic sperm injections (ICSI): This type of fertility treatment, according to UCSF Health, “involves injecting a single live sperm directly into the center of a human egg.” It is typically used in couples with severe male factor infertility, and/or in couples that have been unable to conceive through IVF. This procedure requires the woman to use fertility medications leading up to the procedure, then having her eggs aspirated with a vaginal ultrasound. Those eggs are then incubated in the laboratory while the semen sample is prepared through centrifugation. Then, “the embryologist . . . picks up the single live sperm in a glass needle and injects it directly into the egg.”

Embryo genetic testing: This procedure, which is also known as preimplantation genetic testing (PGT), is a procedure that occurs during IVF to check for genetic problems. According to Brown University, it is designed to prevent an embryo with a genetic defect from being transferred to a woman’s uterus and ultimately to avoid a pregnancy with an embryo that has a serious genetic defect. Common defects tested for include but are not limited to Down syndrome and other defects that involve a missing or extra chromosome, sickle cell anemia and other single gene disorders, and defects that result from the rearrangement of genes.

Surgical sperm retrieval: This procedure is also known as sperm harvesting, and it can vary depending upon individual factors. According to Johns Hopkins Medicine, the procedure “may involve a simple aspiration for men who have a blockage or require much more extensive sample of the testis for men who have a sperm production problem.” When there is a significant issue, the man typically must be anesthetized and surgical equipment is necessary. Specifically, in situations where men do not have sperm in their ejaculate, a doctor must retrieve a sperm sample directly from the man’s testes or epididymis. Sperm harvesting is often a necessary component of IVF.

Common Errors with Fertility Clinics

Given the complexity of infertility diagnoses and fertility treatments, there are many different causes of action in lawsuits against fertility specialists and clinics.

The particular cause of action in your case will depend upon the specific facts of the case and the way in which the provider’s negligence or the facility’s error caused your harm. A number of recent articles address the many causes of action in fertility negligence claims.

We have collated information from the American Society for Reproductive Medicine (ASRM), the CDC, and a Columbia Law Review article on reproductive negligence. Examples of common causes of action in fertility clinic claims include but are not limited to the following:

• Mismanagement of sperm sample, including failure to maintain the chain of custody, improper disposal of sperm specimen, spoilage of specimen, use of sperm without consent, and mislabeling of sperm sample resulting in implantation mix-up;

• Fertility diagnostic test error resulting in improper fertility treatment or procedure.

• Misconduct by a healthcare provider.

• Fertility medication error, including filling the wrong prescription or filling the wrong amount of the prescription.

• Fertility clinic losing a patient’s harvested eggs.

• Fertility clinic exposing eggs to a disease.

• Negligently switching samples, resulting in the wrong implantation of fertilized eggs (sometimes known to patients only as a result of the baby having features of a different race).

• Eggs fertilized by the wrong sperm.

• Failure to identify a defect during IVF prior to implantation and conception.

• Improperly identifying a fertilized embryo as having a defect and destroying it, resulting in the couple never getting pregnant.

• Physically injuring a patient during implantation, or botched implantation procedure.

• Physically harm to a patient during sperm retrieval, or botched sperm retrieval procedure.

Can I Sue an Infertility Clinic for Medical Malpractice?

Fertility centers are shockingly free from regulation, and there are no specific laws in place — either state or federal — that specifically govern requirements for how facilities handle samples and how they manage fertility treatments.

Accordingly, fertility centers do not always act in the best interests of patients, and many patients file negligence claims. Who can be liable in a fertility lawsuit? Many different parties may be negligent in such a claim depending upon the nature of the case, including but not limited to:

  • Primary care physician
  • Reproductive endocrinologist
  • Embryologist
  • Obstetrician/gynecologist (OBGYN)
  • Anesthesiologist
  • Fertility clinic itself
  • Nurse at a fertility clinic or other healthcare facility where a test or procedure is performed
  • Laboratory where a test or procedure is performed
  • Laboratory technician
  • Pharmacist who prescribes fertility medications

General theories of liability involving one or more of the parties listed above may include but are not limited to the following:

  • Fertility clinic mixed up a sample and fertilized an egg with the wrong sperm, resulting in a baby that is not the biological child of both parties.
  • Fertility clinic improperly stored embryos or eggs, making them unusable and preventing the woman from ever conceiving.
  • Fertility clinic or embryologist failed to properly identify a defect in an embryo and implanted it into the woman, resulting in a baby with a serious birth defect.
  • Pharmacist improperly filled a fertility medication, resulting in a woman failing to conceive through expensive IVF treatments.
  • Physician made an error during a sperm retrieval or egg retrieval process, resulting in a serious injury to the patient and permanent infertility.
  • Reproductive endocrinologist made an error in diagnosing the reason for infertility, resulting in extraneous procedures.
  • Fertility clinic failing to improperly screen egg donors or sperm donors for genetic defects or other diseases.
  • Fertility clinic improperly using sperm without consent from the donor.
  • Laboratory made a mistake in fertilizing the egg during an IVF procedure, resulting in subsequent IVF cycles at significant monetary expense.

As the Columbia Law Review article underscores, most fertility negligence claims involve an error or misconduct that results in one of the following:

  • Creating unwanted pregnancy or parenthood (such as using eggs or sperm without consent, or imposing a pregnancy despite the existence of a serious birth defect).
  • Depriving a part (or parties) of a pregnancy or parenthood (such as an error that prevents a fertility treatment from working as intended).
  • Preventing or inhibiting a party’s efforts to have a baby with particular traits (such as fertilizing an egg with the wrong sperm).

Examples of Other Cases Around the Country

The following are a sampling of recent fertility negligence claims around the country:

• In 2011, a New York couple gave birth to a daughter with cystic fibrosis, according to an article in The Daily Gazette. The couple alleged that the fertility clinic in Syracuse failed to perform a “crucial genetic test” to test for a cystic fibrosis genetic marker prior to implantation. The New York Supreme Court upheld a $7.5 million verdict that found in favor of the couple.

• Two couples gave birth to children with the same rare genetic defect known as Fragile X, and they linked the defect to the New York fertility clinic. According to an article in the New York Law Journal, the parents alleged in 2017 that the fertility clinic and the fertility doctor failed to properly screen egg donors, and as a result they gave birth to children with a serious genetic defect.

• Couple from Queens spent more than $100,000 for IVF procedures at CHA Fertility Center in California and eventually got pregnant, only to give birth and discover that their children were not the biological product of either of them, according to a Today article. More specifically, despite the fact that the parties believed their own eggs and sperm had been used for IVF, “the children did not share their Asian descent.” They indicated that they were “shocked to see that the babies they were told were formed using both of their genetic material did not appear to be.” The couple relinquished custody of the two children and filed a lawsuit against the facility.

• Oregon doctor sued a fertility clinic in October 2019, according to a report from CBS News, for using his donated sperm to create 17 children without his consent.

• Large-scale lawsuit involving University Hospitals in Cleveland, Ohio alleges negligent equipment manufacturers and delivery services “led to the loss of thousands of eggs and embryos at UH’s fertility clinic last year,” according to a report from CBS News 5 Cleveland. The complaint alleges that errors were made as far back as 2011, and the lawsuit includes allegations that “UH stored eggs and embryos in a single tank despite knowing eggs and embryos should be divided up and stored separately to guard against a possible catastrophic failure—a failure that would later lead to the loss of around 4,000 eggs and embryos.”

• Connecticut lawsuit against a fertility clinic and fertility doctor for mixing up a sperm sample, according to an article in The Patch. The lawsuit alleges that the Trumbull, Connecticut fertility clinic failed to use the husband’s sperm and that the mixed-up sperm resulted in a baby that “appears to be a different race than the father” and is not the father’s biological child.

• Colorado lawsuit against fertility doctor involves more than a dozen parents and children who allege that the doctor used his own sperm rather than anonymous donors to inseminate patients, according to an article in The Denver Post. The lawsuit was amended in December 2019 to include more families with the same allegation against the fertility specialist. Evidence to support the claims was revealed through DNA tests conducted by the families. The doctor has since surrendered his medical license.

Timeline for Filing a Lawsuit Against a Fertility Doctor or Clinic

The statute of limitations for a negligence claim will vary from state to state.

Under Michigan law, for example, the statute of limitations for most medical malpractice claims is two years from the date of injury. Accordingly, if a patient suffered physical harm as a result of a fertility specialist’s or clinic’s negligence, the patient usually must file a lawsuit within two years from the date of the injury.

However, sometimes a patient does not realize that he or she was harmed until much later. For example, if a botched implantation caused an injury to a plaintiff’s internal organ, she may not have signs or symptoms for a number of years. In such cases, the plaintiff may be able to have an extended statute of limitations.

In cases where the plaintiff did not discover the injury until later, the clock starts ticking on the date that the plaintiff discovered or reasonably should have discovered the injury. Then, the claim must be filed within six months from that date. No matter what, a claim must be filed within six years from the date of the initial harm.

For claims against fertility clinics brought under more general theories of negligence, the statute of limitations is typically two years. Accordingly, a plaintiff will have two years from the date of the legal harm to file a claim for compensation.

If a plaintiff fails to file a lawsuit within the time window outlined by the statute of limitations, that plaintiff will then have what is known as a time-barred claim. Once a claim becomes time-barred, a plaintiff is prohibited from obtaining compensation through a civil lawsuit.

Potential Damages and Compensation

Depending upon the specific facts of your case, you may be able to seek both compensatory and punitive damages in a fertility negligence lawsuit.

Compensatory damages include both economic losses and non-economic losses, such as:

  • Cost of IVF treatment and other related procedures.
  • Cost of fertility medications.
  • Bills for doctor’s visits, including visits with specialists.
  • Hospital bills related to fertility treatments.
  • Expenses associated with raising a child with significant medical issues caused by a genetic defect.
  • Cost of care for a child with severe disabilities.
  • Emotional distress.
  • Pain and suffering.
  • Loss of property (such as loss of eggs, sperm, or embryos).
  • Loss of chance at parenthood.

If a fertility clinic acted intentionally or behaved with willful disregard for the patient, punitive damages may be appropriate.

Punitive damages are only awarded in the most egregious cases, and different states have specifically laws concerning punitive damages awards, as well as caps on those damages in some cases.

In Michigan, for example, punitive damages may be awarded where a defendant acts with malice or willful disregard for the plaintiff.

Contact a Fertility Treatment Lawyer to Learn More About Filing a Lawsuit

If you were injured by a fertility clinic or a fertility doctor, it is essential to learn more about the process of filing a claim for financial compensation.

Fertility clinics are not regulated in the same way as other health care providers, and it is more important than ever to hold these facilities accountable when they are negligent.

At Buckfire Law Firm, we have extensive experience representing clients in negligence cases, and we can get started on your fertility clinic lawsuit today.

Contact Buckfire & Buckfire, P.C. for more information about how we can assist with your case.

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