Second lawsuit filed against fertility center

Sacramento couple who stored eight embryos at Pacific Fertility Center are suing after a malfunction of a storage tank

SAN FRANCISCO » A second lawsuit has been filed against a San Francisco fertility center by a Sacramento couple that says their frozen embryos were destroyed by a rare tank malfunction, dashing their hopes of starting a family.

Megan and Jonathan Bauer’s lawsuit says they were planning to transfer one of their eight embryos stored at Pacific Fertility Center next month — and were shocked to be told that something went wrong.

“Their dreams of future children were irrevocably destroyed,” said attorney Adam Wolf of the firm Peiffer Rosca Wolf Abdullah Carr & Kane, which filed the suit Thursday in U. S. District Court, Northern District of California, San Francisco Division. “They entrusted their eggs and embryos after exhausting other avenues to have children.”

The problem was caused when coolant escaped Tank No. 4 at the center’s lab on Francisco Street. It was discovered when the clinic’s laboratory director was performing a routine check of the steel storage tanks and saw that the level of liquid nitrogen in one tank was too low, according to the center.

It’s not known whether the failure damaged all of the tank’s eggs and embryos; even if liquid nitrogen levels fall, the storage tanks are slow to warm. But there’s no way to know until the eggs and embryos are thawed, and, if healthy, they must be used immediately because they can’t be safely re-frozen.

The fertility clinic breakdown was one of two refrig- eration failures — thought to be the first of their type — to happen nearly simultaneously on March 4.

The other clinic, in Ohio’s University Hospitals Cleveland Medical Center, estimates that 2,000 eggs and embryos may have been damaged or destroyed. At least two lawsuits have been filed against the Cleveland clinic, both involving patients who sought care after infertility due to cancer treatment.

The law firm is asking the court to certify the new San Francisco case as a class action, saying that many other people may have been harmed by the incident.

The suit seeks $5 million in compensation for negligence and breach of contract. It also names as a defendant Prelude Fertility, an Atlanta- based private equity- owned reproductive health company which owns a majority stake in Pacific Fertility Center.

The first claim was filed on Tuesday by an unnamed San Francisco woman who was told that all of her stored eggs were in Tank No. 4, and put at risk.

Pacific Fertility Center and Prelude Fertility have not commented on the lawsuits. In a statement issued Sunday, Pacific Fertility apologized for the incident and said it is investigating the breakdown.

“Our patients and the safety of their eggs and embryos are our highest priorities and we are reaching out to inform them of this incident,” according to the statement. “In addition, we have completed a physical inspection of all of the lab equipment and have also thoroughly reviewed all cryo-preservation protocols with staff. We are truly sorry this happened and for the anxiety that this will surely cause.”

The Sacramento couple, who are in their late 30s and had stored the embryos for three years, said that throughout their courtship, they agreed that having children together was a cherished dream.

After marriage, they be- gan trying to conceive, according to the suit. After several years of failed attempts at natural conception, they went to the fertility clinic to get help.

Megan underwent significant and traumatic effort to preserve her ability to have children, they said in the lawsuit. The process of egg stimulation and retrieval “involves weeks of injections, mood swings from hormone changes, uncomfortable bloating, weight gain, and submission to anesthesia during the actual procedure.”

The couple alleges that if Pacific Fertility Center had had an adequately- operating monitoring system to catch the rising temperature, the staff would have been alerted to the problem before the stored embryos and eggs were put at risk.

The potential loss of their embryos “was due to the reckless, negligent, and/or knowing conduct,” according to the suit. They allege that the center’s “preservation procedures were obviously insufficient to guard against the risk of improper loss and destruction of cryopreserved materials.”

The law firm said it is also working with regulators and legislators to create tougher oversight of the lightly-regulated field.

The U.S. Food and Drug Administration requires testing to prevent the spread of infectious disease. The U. S. Centers for Disease Control tracks the success of treatments. California’s Department of Public Health requires that clinics submit policies to obtain a license.

But the major lab oversight comes from professional organizations, such as the American College of Pathologists and the American Society for Reproductive Medicine.

“This industry is selfpolicing,” said attorney Tracey Cowan of the firm Peiffer Rosca Wolf Abdullah Carr & Kane. “And that is not working.”