A New York appeals court has concluded that the accidental destruction of embryos in storage is negligence and not medical malpractice.
The opinion, issued by a five-judge Appellate Division panel of the First Judicial Department of New York's Supreme Court, will allow a couple whose frozen embryos were lost to continue with their claim of negligence against the clinic where they were stored.
'Retrieving the eggs from the ovaries, fertilising the egg with a donated sperm, grading the quality of the embryos, and preparing them for cryopreservation are clear acts of medical science or art requiring a specialised skill set appropriately characterised as medical in nature,' wrote Justice Martin Shulman for the panel.' Once the embryos entered cryopreservation, [the clinic] and its employees merely owed a duty to plaintiffs to maintain the successful operability of the storage tanks.'
'While the cryopreservation storage tanks ... were checked at least twice weekly for leaks and the levels of liquid nitrogen, such acts are more administrative than medical in nature.'
The case was originally brought in 2011 by Dana Bledsoe and Nicholas McKee against the Centre for Human Reproduction after five of their frozen embryos were lost or damaged. Bledsoe was 40 at the time of egg retrieval, and had been diagnosed with breast cancer. They sued for both negligence and medical malpractice.
A New York trial court ruled in 2022 against the couple on both complaints, but the panel reinstated the claims for negligence based on allegations of improper storage, maintenance and preservation of the couple's embryos. One of the issues in that trial was the time limit in which claims of medical malpractice need to be brought, which in New York state is 30 months. The embryos were frozen in August 2008, but the damage was not observed until the embryos were thawed in 2010, and the lawsuit was filed in June 2011, 34 months after they embryos were frozen. However, the time limit for cases of negligence is 36 months.
The ruling now means that a trial can take place to examine the facts. A jury will be required to decide whether the clinic's maintenance of the tanks met the required standard, and whether the loss of the five embryos was a 'substantial' contributor to the reduction of Bledsoe's chances of achieving a successful pregnancy.
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