Legal Review & Commentary

Hospital, couple disagree on embryos’ storage: Confidential settlement reached

By Jan J. Gorrie, Esq., and Blake J. Delaney, Summer Associate
Buchanan Ingersoll Professional Corp., Tampa, FL

News: A university hospital harvested and stored 28 embryos for a couple who had been unsuccessful in conceiving a child. Ten years later, the hospital disposed of the embryos, believing that the failure on the part of the couple to respond to notices that the hospital was going to take such action indicated their concurrence to have the embryos destroyed. When the couple later sought to have the embryos implanted, they were no longer available, and they sued the providers. The case settled in mediation for an undisclosed amount.

Background: Twenty-eight eggs were retrieved from a woman in the hopes that she might bear a child. The eggs were prepared for in vitro fertilization. After being fertilized, some embryos were successfully implanted, and the 15 remaining embryos were cryopreserved and stored, pursuant to a contract with the college of medicine associated with the hospital. Ten years later, the hospital sent a message asking if she and her husband wanted to continue having the embryos stored. The couple claimed that they told the hospital four times that they wanted to keep the embryos. The hospital counterclaimed that it never heard anything back.

After the couple decided to have five embryos implanted and the remaining 10 donated to another patient, they learned that the embryos no longer existed. The couple sued for negligence and breach of contract. The defendants countered that the couple failed to provide instructions for continued storage and that the fees for such storage had not been paid. The parties reached a confidential settlement in mediation.

What this means to you: This could have been remedied at the very beginning by a written contract specifying the terms under which the embryos were to have been kept. "Unfortunately, in the absence of additional information regarding the contract, this case came down to he said, she said,’ and the plaintiffs prevailed," notes Leilani Kicklighter, RN, ARM, MBA, CPHRM, director risk management services, Miami Jewish Home and Hospital for the Aged and past president of the American Society for Healthcare Risk Management.

The case notes do not indicate if the contract was written or implied. "A contract specifying that all notices between the parties are to be sent via certified return receipt mail would have been beneficial to all concerned. This would have provided the hospital with a clear means of communication with the couple, and the couple with the means to contact the hospital. As it was, we really do not how the providers gave notice to the plaintiffs and if there was any record of receipt. The plaintiffs claimed that they did contact the hospital, but it is not clear to whom they talked or wrote. The contract should have given them a specific contact person — hopefully, identified by title, not necessarily name, since people change positions. Further, the contract should provide reversionary terms, so that after a certain time, without notice or storage fee payment from the couple, ownership of the embryos would revert to the facility," she adds.

In the process of entering such contracts, "hospitals and providers would be best served by providing or suggesting that they involve a counselor so that issues of ownership following divorce, viability of the embryos over time, and other ethical considerations would be clearly discussed, explained, and documented," notes Kicklighter.

"Finally, inservicing — facilities and providers offering such services have a moral obligation to follow through on contacts by patients involving these matters," says Kicklighter. "Providers engaged in sensitive issues, like reproductive medicine, should train staff members on how to field various inquiries, for it could have been in this instance that the couple talked to the facility’s telephone operator or a secretary who had no clue where to direct them."


• Harris County (TX) District Court, Case No. 2001-05985.