Loss of embryos leads to lawsuits

Changing technology can complicate negligence lawsuits. For instance, in a recent situation, Ohio courts will need to rule on whether the destruction of thousands of eggs and embryos at University Hospitals is a personal negligence or medical malpractice case, which can limit the award of extra punitive damages.

Reports indicate that four thousand specimens were rendered unviable at UH during the weekend of March 3 and 4. UH recently released a statement to patients attributing the loss of over 400 eggs and embryos, impacting 950 patients, to temperature fluctuations involving higher temperatures. A remote alarm system installed to alert staff members to rising temperatures was not turned on.

The tank that stored the tissue also needed maintenance because the mechanism that was supposed to automatically refill the tank was inoperable. UH had trouble with the automatic fill nitrogen device for several weeks and staff members refilled the storage unit directly instead of using the hose intended to add liquid to the reservoir.

So far, there are 26 lawsuits brought by 62 couples and individuals. UH asked for consolidation of these cases with a judge in Cuyahoga County. After that is decided, some plaintiffs may seek certification of a class action case.

Because of these problems, particularly the failure of the automatic refill system, plaintiffs are considering punitive damages. These damages are designed to financially penalize defendants for egregious behavior in addition to any compensation damages for harm that are awarded.

These punitive damages are limited to twice the amount of compensatory damages in malpractice cases under Ohio law. However, some of the plaintiffs' attorneys said that they will argue that these caps should be eliminated. Other lawyers believe that judges will restrict damages. This depends on whether the courts rule that these are personal injury or medical malpractice cases.

State tort law, however, may restrict the amount of compensatory damages if a judge rules that the loss of the eggs and embryos was a non-catastrophic injury. These caps would be $250,000 to $350,000 for each case. Catastrophic injury damages are not capped if these involve permanent and substantial physical deformity, loss of the use of a limb or bodily organ system or other physical permanent injuries.

Victims of physician or hospital malpractice may need assistance to deal with the legal and technological issues involving their cases. An experienced attorney may be able to help them pursue their rights in court.

Source: The Plain Dealer, "New information from University Hospitals raises stakes in fertility clinic lawsuits, lawyers say," James F. McCarty, March 31, 2018

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