For two weeks in January, a Newport Beach fertility lab had a 0 percent successful implantation rate, allegedly because the embryos were exposed to hydrogen peroxide or another caustic chemical, according to a lawsuit filed this week on behalf of nine couples.
More than a dozen embryos were already not viable when the Ovation Fertility laboratory implanted them into the expectant mothers, says the lawsuit, which accuses the laboratory of negligence.
The “catastrophic error” occurred between Jan. 18 and 30, according to the plaintiffs’ attorneys, even though Ovation allegedly waited a month to notify the patients’ doctors that something was wrong. The normal success rate for high-quality embryos of this type, according to the lawsuit, is about 80 percent.
Ovation used hydrogen peroxide, rather than distilled water, during the incubation process and relied on “inexperienced, cheap, unskilled and untrained employees to save money and maximize profits”, indicates the pursuit.
Once the company learned it had a problem, according to the lawsuit, it attempted to deceive patients into giving up their legal claims in exchange for approximately $6,000 in reimbursement for laboratory fees and clinic.
“We wish you the best and apologize for any inconvenience,” reads one of Ovation’s letters, included in the lawsuit. The letters were followed by repeated calls from an Ovation Lab official to the couples, urging them to sign the waiver but offering no explanation for what happened.
Ovation’s website describes the company as “a results-driven national network, delivering cutting-edge treatments from the hands and minds of the world’s leading reproductive experts.” The website lists 22 laboratories across the country.
Attorney Michelle Hemesath speaks at a news conference announcing a lawsuit against Newport Beach fertility clinic Ovation Fertility.
(Allen J. Schaben / Los Angeles Times)
In a statement Tuesday, Ovation said it has “implemented protocols to protect the health and integrity of every embryo in our care.”
Ovation called the alleged wrongdoing “an isolated incident related to an inadvertent error by a laboratory technician that affected a very small number of patients,” adding:
“As soon as we noticed that the number of pregnancies was lower than our usually high success rates, we immediately opened an investigation. We did not knowingly transfer non-viable embryos for implantation. We have been in close contact with these few affected patients since the problem was discovered. We are grateful for the opportunity to help patients start families and will continue to implement and enforce rigorous protocols to safeguard this process.
One of the plaintiffs, Brooke Berger, 37, of Fullerton, said a doctor collected her embryos three years ago in Colorado, although the process resulted in an ectopic pregnancy and loss of a fallopian tube. She moved to California with her husband last year and they transferred her last two embryos to Ovation.
She remembers her doctor telling her there was a better than 50 percent chance the implantation would be successful.
Attorney Benjamin Ikuta, right, listens to Brooke Berger and Bennett Hardy at a news conference announcing a lawsuit against Newport Beach fertility clinic Ovation Fertility.
(Allen J. Schaben / Los Angeles Times)
“We waited 12 days for tingling,” she said. “When we got the negative test result, it was really devastating. »
The lawsuit alleges that the embryos were already not viable when Ovation implanted them on January 25.
“A month later we found out there was no chance: the embryos had been destroyed,” Berger said. “We were just shocked to hear that.”
When she and her husband tried to find out what was wrong, answers from an Ovation lab manager were vague, she said.
“We shouldn’t have to hire lawyers to find out what happened to our embryos,” Berger said. “This is completely false. … This could very well have been our last chance to have children.”
She said the lab called her back Monday morning to try to get her to sign the waiver. She said she hopes to try again for children with a company other than Ovation.
Attorney Rob Marcereau speaks at a news conference announcing a lawsuit against Newport Beach fertility clinic Ovation Fertility.
(Allen J. Schaben / Los Angeles Times)
“I’ve wanted to have children for a long time. I just want a child. I don’t need a whole bushel of children. I just want one,” she said. “I’m three years older than the last time we did this process, and generally those odds don’t improve with age.”
Rob Marcereau, a lawyer representing the plaintiffs, said he believed hydrogen peroxide was responsible for killing the embryos, because of what the patients’ doctors told them.
One goal of the lawsuit, which seeks unspecified damages, is to get answers, he said.
He said he has handled dozens of fertility cases and most of them have confidentiality terms settled before a lawsuit is filed.
“As a result, a lot of these egregious things that happen never see the light of day,” he said.
Last week, two more couples filed a lawsuit against Ovation Fertility, also alleging that hydrogen peroxide destroyed their embryos.
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