Lawsuit accuses Newport Beach fertility clinic of poisoning embryos
For two weeks in January, a Newport Beach fertility lab had a 0% rate of successful implantation, allegedly because 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 nonviable when the lab, Ovation Fertility, implanted them into the would-be mothers, said the lawsuit, which accuses the lab of negligence.
The “catastrophic error” occurred between Jan. 18 and Jan. 30, according to the plaintiffs’ lawyers, though Ovation allegedly waited a month to tell the patients’ physicians that something went wrong. The normal success rate for high-grade embryos of this type, the lawsuit says, is about 80%.
Ovation used hydrogen peroxide, rather than distilled water, during the incubation process and relied on “inexperienced, cheap, unqualified, and untrained employees to cut corners and maximize profits,” the suit says.
Once the company learned it had a problem, the lawsuit alleges, it attempted to trick patients into signing away their legal claims in exchange for about $6,000 as reimbursement for lab and clinic fees.
“We wish you our very best and apologize for any inconvenience to you,” read one of the letters from Ovation, which was included in the lawsuit. The letters were followed by repeated calls from an Ovation lab manager to the couples, urging them to sign the release but offering no explanation for what happened.
Ovation’s website describes the company as “a results-driven national network providing leading-edge treatment through the hands and minds of the world’s foremost reproductive experts.” The website lists 22 labs across the country.
In a statement Tuesday, Ovation said it has “protocols in place to protect the health and integrity of every embryo under our care.”
Ovation called the alleged wrongdoing “an isolated incident related to an unintended laboratory technician error that impacted a very small number of patients,” adding:
“As soon as we recognized that pregnancy numbers were lower than our usually high success rates, we immediately initiated an investigation. We did not knowingly transfer nonviable embryos for implantation. We have been in close contact with these few impacted patients since the issue was discovered. We are grateful for the opportunity to help patients build a family and will continue to implement and enforce rigorous protocols to safeguard that process.”
One of the plaintiffs, Brooke Berger, 37, of Fullerton, said a physician harvested her embryos three years ago in Colorado, though the process resulted in an ectopic pregnancy and the loss of a fallopian tube. She moved to California with her husband last year, and they transferred her last two embryos to Ovation.
She recalled that her physician told her there was a better-than-50% chance the implantation would be successful.
“We waited on pins and needles for 12 days,” she said. “When we got the negative [test result], that was really devastating.”
The lawsuit alleges that the embryos were already nonviable when Ovation implanted them Jan. 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 went wrong, she said, the answers from an Ovation lab manager were vague.
“We should not have to hire lawyers to find out what happened to our embryos,” Berger said. “That is just completely wrong. ... That could very well have been our last chance to have children.”
She said the lab called her again Monday morning trying to get her to sign the waiver. She said she hopes to try again for children with a company besides Ovation.
“I wanted to have kids for a long time. I just want one kid. I don’t need a whole bushel of kids. I just want one,” she said. “I’m three years older than when we did this process the last time, and generally these odds do not improve as you get older.”
Rob Marcereau, an attorney representing the plaintiffs, said he believes hydrogen peroxide is the culprit in the death of the embryos because of what the patients’ physicians told them.
One of the goals of the lawsuit, which asks for unspecified damages, is to get answers, he said.
He said he has handled dozens of fertility cases, and most settle with conditions of confidentiality before a lawsuit is filed.
“As a consequence, a lot of these egregious things that are happening never see the light of day,” he said.
Last week, two other couples filed suit against Ovation Fertility, also alleging that hydrogen peroxide destroyed their embryos.
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