Insurance Dispute Lawyer Blog

When handling frozen embryos, as previously discussed, there is a specific duty of care owed by the hospital to the parents to maintain the embryos properly and sufficiently so as to preserve them from harm and maintain them for usage by the donor couple. In Louisiana, lawyers have been filing lawsuits regarding a mixup at Ochsner Hospital Elmwood in which a mislabeling matter led to what may end up being a complete disposal of a number of embryos because of a lack of screening that also occurred.

ABC recently profiled a series of mishaps, including that in Louisiana, occurring in the world of in vitro fertilization. With loose regulations, there is a huge possibility of error, as is the case here.

Louisiana law clearly stipulate facets involved in the adoption or change of possession regarding frozen embryos. It does this to try to protect families from the improper transfer of an embryo to another individual, among other reasons. The law states

The news has widely covered the story of how one woman, Carolyn Savage, of Toledo, Ohio, found out during her pregnancy that the embryo she had been impregnated with was, in fact, from another couple. Mrs. Savage gave birth to that child and, in an act of extreme charity and kindness, turned it over to its biological parents, Shannon and Paul Morell. The story, found here, has received so much attention because of the extreme amount of compassion it would take for a couple like the Savages, who are themselves looking to have their own child, to give birth to a child that is not theirs, let alone readily hand that child over upon birth. It also shows the possibility for mistakes that recently occurred in New Orleans most recently.

In the case of the Morells and Savages, a name-error may have caused the mislabeling, or incorrect usage, of the embryo that was used to impregnate Mrs. Savage. The American Chronicle reports

In an interview with The Blade yesterday afternoon, Carolyn’s husband, Sean Savage, said it’s possible the error occurred because the mothers share a name, and when it was mentioned that it seems to be a very odd coincidence, he commented “which makes it probably not a coincidence.”

A recent twist to Ochsner Elmwood’s recent embryonic disaster regarding the mislabeling and invalidation of an unknown number of frozen embryos complicates the matter even further. It is now alleged that the individual responsible for the mixup may not have even been an employee of the hospital and, further, even certified to be working in the professional capacity he was working in.

While contracting out medical specialists is not new for hospitals, this new kink adds fuel to the fire of the argument some have regarding the lack of concrete regulation in regards to fertilization and embryonic storage.

The Times-Picayune reports

In order to help readers understand more about the embryo debacle and ensuing lawsuits that recently occurred at Ochsner Hospital Elmwood, outside New Orleans, an explanation of relevant Louisiana statutory law is a helpful tool. The Louisiana law provides a specific comprehension for lawyers and citizens to understand regarding embryos frozen at facilities and does not fail to mention the proprietary rights that go with the storage. While a couple may freeze embryos and store them with a hospital, they do not give up any of their rights over those embryos and they are handled as if they were never removed from the woman.

Louisiana law states

La. Rev. Stat. Ann. § 9:126 An in vitro fertilized human ovum is a biological human being which is not the property of the physician which acts as an agent of fertilization, or the facility which employs him or the donors of the sperm and ovum. If the in vitro fertilization patients express their identity, then their rights as parents as provided under the Louisiana Civil Code will be preserved. If the in vitro fertilization patients fail to express their identity, then the physician shall be deemed to be temporary guardian of the in vitro fertilized human ovum until adoptive implantation can occur. A court in the parish where the in vitro fertilized ovum is located may appoint a curator, upon motion of the in vitro fertilization patients, their heirs, or physicians who caused in vitro fertilization to be performed, to protect the in vitro fertilized human ovum’s rights.

While the embryo mixup that occurred in the Louisiana hospital outside New Orleans was bad news for families who had stored there, recent news makes the situation worse. The unfortunate reality, it appears, for those couples whose embryos were kept at Ochsner Hospital Elmwood is that, even if they could be identified after being mislabeled, a failure to screen them for sexually transmitted diseases when freezing took place makes them inviable to implant. The suit filed a couple earlier this month is the second filed against the hospital after another couple found that the embryos they had frozen at Ochsner Hospital Elmwood went missing. That the mislabeled embryos are not even viable even if identified is a harsh addendum to an already tragic and sad event.

The hospital has shut down its in vitro program indefinitely so as to attend to the problems that obviously exist before continuing. Ochsner CEO Pat Quinlan has stated the problem and shutdown arrives from a “significant labeling issue, which makes us unable to account for all the frozen embryos in our IVF center.”

What this means to New Orleans residents is simple: any couple or woman who has had embryos frozen at Ochsner Hospital Elmwood needs to contact the hospital immediately to find out the status of their frozen embryos. The hospital has stated any patients concerned with the status of their embryos should call concerns can contact Ochsner by calling 866.631.9783 or send e-mails or questions to questions@ochsner.org. As both of these appear to be public manners of contact, an important next step for patients would be to attain legal counsel.

It is hard to think of something that could be more traumatic or concerning for families looking to in vitro for pregnancy options beyond what seems to now be the reality many are facing today. In New Orleans, Louisiana, Ochsner hospital has shut down their in vitro fertility program after realizing that their Elmwood facility is currently facing a huge mismanagement issue of embryos. As embryos are an integral part of in vitro pregnancy for families looking to have children, the fear for some is that this mismanagement has led to terrifying questions that remain to be sufficiently answered.

The Times-Picayune reports that the facility has shut down its program indefinitely in light of a recent discovery that its embryos have been mislabeled.

In her feature, Michelle Hunter reports