Nine additional couples have filed lawsuits against an in vitro fertilization provider, alleging that the provider not only destroyed their embryos but also implanted the nonviable embryos, despite being aware of their lack of viability.
In a lawsuit filed jointly on Tuesday, the couples claimed that the employees at Ovation Fertility in Newport Beach, California, exposed the embryos to harmful levels of a toxic substance. The couples had the nonviable embryos implanted between January 18, 2024, and January 30, 2024, but none of the implantations were successful.
According to the lawsuit, the couples experienced feelings of self-blame and body shame following their miscarriages. Some even resorted to medical procedures in an attempt to understand the cause of their failed pregnancies. However, it wasn’t until late February and early March when Ovation Fertility disclosed to their doctors that there had been errors in the laboratory procedures.
According to the lawsuit, Ovation Fertility faced allegations that it only acknowledged a problem when multiple fertility doctors raised concerns about the 0% success rate for thawed embryos over a two-week timeframe, despite the typical success rate being 75%.
Last week, two more couples came forward with a similar lawsuit, claiming that their embryos were destroyed due to a lab employee’s mistake. Instead of using a sterile solution, the employee accidentally used hydrogen peroxide in the incubator.
Nine couples stepped forward on Tuesday to file a lawsuit, presenting multiple grounds for their claim. These grounds include negligence, medical battery, concealment, intentional misrepresentation, negligent misrepresentation, negligent hiring, retention, and supervision, as well as loss of consortium. The couples are seeking a jury trial to address their grievances.
According to a statement from Ovation Fertility on Tuesday, the company has established protocols to ensure the well-being and integrity of every embryo in their care.
Ovation Fertility stated that the incident was an isolated occurrence resulting from an unintended error made by a laboratory technician. This incident affected only a small number of patients. Upon realizing that the pregnancy rates were lower than their typically high success rates, they promptly launched an investigation. The statement further emphasized that the clinic did not intentionally transfer nonviable embryos for implantation.
Ovation Fertility expressed gratitude for the chance to assist the affected patients in their journey to parenthood. The clinic has maintained regular communication with these individuals since the problem was identified. Moving forward, Ovation Fertility is committed to upholding stringent protocols and measures to ensure the safety and well-being of patients during the fertility treatment process.
According to the lawsuit, Ovation Fertility provided physicians with different explanations for the 0% success rate. They attributed it to factors such as temperature levels, pH levels, carbon dioxide and other gas levels, as well as equipment failure in the incubator. However, the patients were informed and held the belief that hydrogen peroxide was used instead of distilled water.
According to the lawsuit, the plaintiffs claim they were informed that Ovation’s operations were plagued by incompetence. Allegedly, the company hired inexperienced, cheap, unqualified, and untrained employees in order to save costs and prioritize profits over the well-being of patients.
The couples claim that Ovation’s embryologist had previously frozen embryos on the wrong device, lost embryos during the biopsy process, and conducted incorrect biopsies, resulting in harm and degeneration of the embryos. The lawsuit alleges that Ovation was aware of these mistakes that led to the loss or destruction of embryos.
The couples have also claimed that Ovation purposely attempted to hide errors made by patients and fertility physicians, as stated in the lawsuit. They argue that Ovation went as far as trying to deceive patients into signing waivers of their claims and non-disparagement agreements.
The plaintiffs are seeking an undisclosed sum of compensation.
‘I was completely shocked’
Brooke Berger, 37, and her husband, Bennett Hardy, 33, are one of the couples included in the recent lawsuit. In an interview with ABC News on Monday, Berger shared their journey of battling fertility issues and opting for IVF treatment while they were residing in Colorado in the summer of 2022.
According to Berger, the initial transfer led to an ectopic pregnancy, which necessitated surgery and the removal of one of her fallopian tubes. As a result, the couple decided to freeze their remaining embryos.
Hardy and Berger relocated to Fullerton, a city located 25 miles southeast of Los Angeles, when Hardy secured a job in Orange County in July 2023. In November 2023, they transferred their embryos to Ovation Fertility, as it is the clinic recommended by their new doctor.
Berger reflected on their previous experience with a small practice that stored their embryos on-site, expressing satisfaction with the level of care they received. However, when transitioning to a larger corporation with more resources, she had assumed that their embryos would be even safer. Now, she realizes that this assumption was naive.
Berger and Bennett, along with the other couples, have filed a lawsuit against Ovation Fertility. They claim that the clinic exposed their embryos to harmful levels of hydrogen peroxide or another caustic agent, resulting in their death. The lawsuit further alleges that the clinic was aware that the embryos were not viable but failed to inform the couples about this crucial information.
Berger and her husband attempted to transfer their last two embryos in January. According to their doctors, there was supposedly a success rate of over 50%. Unfortunately, the implantation was not successful.
According to the lawsuit, Ovation Fertility failed to disclose the details of the patients’ fertility physicians until late February and early March. It wasn’t until a month and a half after the failed implantation that the couple was informed of what had happened by their fertility doctor.
“I was absolutely shocked,” she exclaimed. “I couldn’t believe it. … It was truly surprising to hear what had actually transpired. I mean, I can’t fathom how such a mistake could have occurred.”
Robert Marcereau, the couple’s attorney and the attorney of three other couples in the lawsuit, expressed his hope that the filing would inspire other couples who may have experienced similar mistreatment to step forward and share their own stories.
“Families have placed their trust in Ovation, a reputed leader in the fertility industry,” he informed ABC News. “Unfortunately, we have discovered, in a tragic manner, that this is not the reality… and it is crucial for us to file this lawsuit, not only to assist these families and secure compensations for them, but also to shed light on Ovation’s practices in hopes of bringing about necessary changes.”
Berger recounted how devastated she and her husband were after the last transfer failed. She admitted to wanting to shield her husband from seeing the extent of her distress.
“I retreated to the secluded corner of our house, seeking solace, and let my tears flow uncontrollably. After gathering my composure, I emerged into the kitchen and found him sitting there, his face filled with devastation, as if he carried the burden of it all,” she recalled. “But it wasn’t his fault. The responsibility lies solely on Ovation, and I’m not sure if I can ever forgive them for portraying my husband in such a demeaning manner.”
According to Berger, the couple is currently undergoing ovarian stimulation in their ongoing efforts to have children. They hope to retrieve more eggs and produce additional embryos. Additionally, they are actively searching for a doctor who is not affiliated with Ovation Fertility.
Berger expressed her hope that by sharing her and Hardy’s story, Ovation Fertility will be compelled to implement changes in its lab practices to prevent the occurrence of a similar situation in the future.
“I sincerely hope that Ovation’s lab practices come under scrutiny as a result of this incident, compelling them to implement tangible reforms to prevent such occurrences in the future,” she expressed. “These errors are entirely avoidable, and there is absolutely no excuse for them. Ovation must take responsibility and rectify the situation. If we don’t hold them accountable, I fear that no one else will.”