Hospital delays 13 years in disclosing frozen embryo to patient

Jeff Catalano, a longtime client of ours, is one of Massachusetts’s leading medical malpractice / products liability / personal injury attorneys.  He recently wrote about this unusual (and distressing) case for his firm’s occasional email newsletter, and he has graciously consented to our request to reprint it here. 

Hospital delays 13 years in disclosing frozen embryo to patient  

One of my cases recently received a great deal of media attention, including on Good Morning America.  It is a sad case of what happens when an IVF clinic fails to appreciate the importance of informed consent and transparency in freezing embryos.

Marisa Cloutier-Bristol first learned in August 2017 that a hospital fertility clinic had been preserving her frozen embryo in storage since 2004, the year she underwent in vitro fertilization treatments with her husband, and that they were going to start charging her $500 per year to store it.  They offered that she could discard it, donate it, or have it put back into her.

This shocking news devastated Ms. Cloutier-Bristol, then 44, who for 13 years had assumed that four embryos she and her husband produced had been destroyed and discarded after being told by her physician that they were "abnormal" and none should be implanted in her uterus.

However, the hospital actually froze one of the embryos without her knowledge or consent.  Unaware of another chance at having a baby, the couple decided to stop attempting to conceive through in vitro fertilization.

The hospital never asked the woman and her husband to sign a consent form indicating each partner's wishes on what to do with the embryo in the event of divorce or death.  The woman's husband died unexpectedly in 2006 of a heart attack.  Absent the consent form, the hospital is ethically and legally prohibited from doing anything with the embryo.  It must remain frozen ... for eternity.

Learning that a viable embryo has remained in storage was devastating to Ms. Cloutier-Bristol.  She was robbed of the chance to have another child who would have been a part of her deceased husband, and a sibling for their only son who is now off to college.  Now knowing it must be frozen forever causes her to "grieve the loss of a child she was never able to have."

Since the 1990s the standard of care has been to have couples agree in writing before undergoing in vitro fertilization treatments as to what will be done with embryos that are frozen should one of them pass away.

Hopefully, this highly publicized lawsuit will serve as a reminder to IVF clinics everywhere that they have tremendous responsibility not only to their existing patients, but to the thousands of potential lives they are storing.  They are not just preserving an embryo, they are preserving a couple's hope and desire for a child for them to love.  Nothing could be more delicate.

For her full story, please see her video on YouTube.

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