The list is not exhaustive but I have handled more than one case in each category since I started handling fertility cases almost 20 years ago. My first fertility case arose as a result of the fertility clinic physician who was responsible for the transfer of an embryo created for and by my client transferring someone else’s embryo.  He knew he made this mistake immediately after he transferred the embryo and while the patient was still in his office but he did not tell her.  Instead, he prescribed medication which he told her was intended to increase the odds that the embryo would implant and she would become pregnant.  The medication was actually intended to prevent implantation and pregnancy.  He knew he did this and his staff knew he did this but no one told my client.  She became pregnant and gave birth to a child whom she loved and raised alone until he was two years old.  Suddenly, the dr. and his embryologist appeared at her home and told her the child was not hers but was the child of another couple who had been clients at his clinic.  They gave her this shocking news because a staff member of the clinic had reported the conduct of the physician to the Medical Board after years of feeling guilty about the well-kept secret and the Medical Board was conducting an investigation.  They told her the couple whose embryo she had carried to term had a girl who was the full sister of her son, the boy she had raised and love for two years and that she would love them if she agreed to meet them.  She agreed and they all met in a park.  Right after the meeting, the other couple served her with papers seeking custody of the boy she loved.  I was able to resolve the case against the doctor and the clinic for significant compensation and the doctor lost his license to practice in California.  But the Family Law case handled by a family law lawyer did not have such an appropriate result: the judge in the Family Law case ruled that he considered the baby the result of  a one-night stand case so that the two families would have joint legal custody of the boy who would spend half his time with the couple whose embryo was used and the mother who had given birth to him and raised him!  No one was happy with the result and it created a union of very different families who had not chosen to share a child.

Since that time, I have represented many families with stories of surprise, sadness, loss and distress when all of that was completely preventable:

There was, and is, the sperm bank which promoted a “donor” they said they had completely vetted as handsome, a Ph.D. candidate in artificial intelligence with degrees from the University of Georgia, an IQ of 160 and a clean bill of health.  His sperm was sold and promoted and he was described by the bank on line and on the phone as one of the best donors they had.   The promotion was very successful as, according to the sperm bank, he had at least 36 offspring in 2014.  The bank accidentally copied him on an email to one of the mothers of his offspring who was part of an online group of mothers of his offspring and, within 5 minutes of googling his name on line, she learned that he was schizophrenic, an ex-felon, and had not graduated from college, information that was easily found by her and could have been found by the sperm bank if they had only looked.  I have represented 13 families to date with children of that “donor” and now represent 10 families of another donor with genetic abnormalities passed to his offspring that could have been, but were not, observed by the physician who is charged with examining every “donor” according to the sperm banks website representations.

There was the family that recently learned that their husband and father had multiple children by another woman who found them through 23 and me.  The doctor had “repurposed” the sperm of our client, whether intentionally or negligently, to impregnate a woman who was at the clinic for intrauterine insemination.  Quite a surprise and more than a little distressing.

There is the fertility clinic which, unbeknownst to its patients, was partially acquired by a hedge fund which began to operate the laboratory where eggs and embryos were cryopreserved by staffing it with lay people instead of medically-trained as before the acquisition.  One of the tanks failed and no one noticed in time to save the contents.  Many people lost their future hopes and dreams with the loss of eggs and embryos: couples who had preserved embryos before cancer treatments which destroyed fertility; women who had preserved their eggs to create future pregnancies who were now too old to undergo egg retrieval, people who had preserved embryos to enlarge their families with additional in vitro fertilizations.

These are only a few of the examples of mistakes which were preventable but which lead to loss and distress for the victims of those mistakes.

Litigation has been fruitful and interesting.  In most jurisdictions, the cases have been successfully resolved.  In Georgia which is the home of the sperm bank discussed above, the cases filed in Georgia because of the legal requirement to do so in certain of the cases, have been uniformly dismissed and we have appealed the dismissals. Just this week the Georgia Supreme Court heard one of our cases and the hearing was exciting and gave us hope as the Court examined the attorney for the defendant sperm bank on the matter of why and how they can sell sperm on the basis of misrepresentations relied upon by the purchasers and have no responsibility at all. You can view the argument at gasupreme.us/watch/.

Go to Norman v. Xytex, May 21, 2020. We are holding our breath for the opinion which we hope will open the door to sperm bank liability.  The law is this area has yet to catch up to the technology but it is getting there.  It is an exciting subject area for practice.

Before hiring a clinic, everyone should ask all questions that pertain to the mistakes addressed above. You need to be your own health advocate.

If you or a loved one has been impacted by a fertility clinic mistake, we can help. Contact our law firm to speak with one of our lawyers, experts in the fields of fertility litigation. We can help you assess your legal rights and get the support you need.

Gadolinium is the usual contrast agent and it carries risks. If you have any kidney issues, diagnosed or undiagnosed, it can carry the risk of a condition known as NSF which can be debilitating. It also carries the risk of GDS, or gadolinium deposit syndrome.

The gadolinium does not necessarily clear the body after the MRI but can become deposited in various organs, including the brain, causing problems which can be permanent.

Be sure to be your own health advocate and ask the threshold question: do I need a contrast agent? Can we try without first?

If you or a loved one has been affected by gadolinium toxicity, contact us immediately to discuss your options. Our attorneys are available to answer your questions and are committed to fighting to protect your rights.

Research! Research a few different things, for example:

• Doctors’ Backgrounds: Look online to see if the clinic or any of the doctors have been sued. Do a search on the relevant medical board for each of the doctors’ licenses and for any complaints related to the doctor. Speak to people with experience in the field.
• Costs: Compare costs and find out what is provided for what you are charged.
• Lab Operations: Ask how the lab is run and supervised. Ask whether any other entity is involved in the clinic or lab operations. Ask whether or not any mistakes have been made, e.g. eggs or embryos destroyed, embryos switched, dropped or destroyed, or any damage to tissue.
• Compensation structure: Ask whether or not the doctors’ pay is determined by how many patients they sign up. Ask about the clinic and lab payment structure.
• Risks: Ask about the risks and how often they can occur and how often they have occurred in this particular clinic or lab.

The bottom line is ASK QUESTIONS. Be your own health advocate. Compare and contrast. Be as careful as possible.

1. How they assure that you will receive your embryo and not that of someone else;

2. How they protect your frozen embryos and/or eggs from thawing and becoming unusable;

3. What representations they make concerning successful IUI, IVF, ICSI and egg and embryo freezing;

4. What their rate of success is respecting pregnancy with live birth as outcome;

5. What their failure rate is with IUI, IVF, ICSI;

6. How many clients have made claims against them for anything;

7. How many times they have been sued as a clinic or with respect to an individual physician or embryologist;

8. What are the qualifications of their embryologist;

9. Do they recommend sperm banks or egg donor banks and, if so, do they have a financial interest in the banks they recommend.

There are many other avenues of inquiry. Make sure you are an educated consumer because fertility treatment is extremely expensive, financially and emotionally.

I always encourage people to ask questions, do research and even call me for advice BEFORE undergoing a surgical procedure or taking a particular drug. In my work as San Francisco injury lawyer, I have represented many patients who ultimately became harmed by drugs and procedures they did not know would hurt them. Sometimes they were never informed of the risks involved in taking the medication or having a particular surgical procedure or medical device implant.

Health care providers are required by law to obtain an informed consent whenever they recommend treatment. In California, our supreme court has established that a physician is required to disclose “all information relevant to a meaningful decisional process.” Cobbs v. Grant (1972) 8 Cal.3d 229, 242. That means doctors and other medical practitioners must tell patients what alternatives exist to recommended treatment, what risks are presented by the recommended treatment, and what to expect if they follow the medical advice being given them.

In our law practice, we have represented many clients who have suffered serious injury as a result of having been inadequately informed. At trial involving patient injuries, often the jury instructions we propose which are well-established in California have to do with informed consent, the failure to provide informed consent and related issues that a jury must decide.

When a doctor prescribes a drug, the patient needs to ask the following questions:

First, why are you prescribing this drug and are there other drugs that perform the same or similar functions? Second, is this a new drug on the market? (Doctors are very susceptible to persuasion by drug reps that they should try new drugs which do not have a track record and can be dangerous); Third, what are the side effects of the drug; are there any side effects that can cause death or serious injury?; Fourth, what should I look for when taking the drug to determine whether or not I am suffering ill effects from the drug; what should I do if any changes occur after I begin to take the drug?

After these questions are answered, the patient should go on line and research the drug for side effects. The Food and Drug Administration has a website where one can access adverse event reports pertaining to drugs and medical devices which are on the market. That is also a good resource for information. Taking these steps might well avoid the types of serious injuries that our clients have suffered from drugs prescribed by their physicians.

If you have concerns after asking these questions and researching the drug itself, call your doctor and discuss these with him or her. Do not feel that you are being a “difficult” patient or are outside your rights to be very comfortable about your own health. Do not let your physician or medical staff cause you to believe that you do not have a right to know these things. You do. If you believe that your doctor is not willing to fully discuss and address your concerns, consider finding a physician that is more open and willing to go through this process with you.

The same issues and concerns for patients apply to recommended surgical procedures. Next post, I will share important information about informing yourself about surgical risks.

If you or a loved one has been injured after taking a drug or having a surgical procedure, we can help. Contact our law firm to speak with one of our lawyers, experts in the fields of medical device and defective drug litigation. We can help you assess your legal rights and get the support you need.

If you are involved in a motor vehicle collision and, afterwards, are dizzy, confused, have memory loss, have ringing in your ears, get lost on old routes to and from familiar places, are sensitive to light and noise and have other unusual for you responses to your environment, you might have a concussion or TBI. If the symptoms last beyond three months, you likely have a traumatic brain injury.

Most people recover completely but some, the silent minority, do not recover and while they look normal and people expect them to be themselves, they are contending with confusion, memory loss, ringing in their ears and other problems that affect their home and work lives. These people need neurologist who cares and understands, and possibly a neuropsychologist who can quantitate the damage to the patient’s brain. Don’t feel isolated and alone. Get the appropriate medical care and, if necessary, cognitive therapy and recognize that you have a very real injury.

If you or a loved one have been involved in an auto or truck accident, or any other type of motor vehicle accident and you are experiencing the symptoms described above, you might have sustained a traumatic brain injury. If another person caused the accident to occur, you might be in a position to get help with your medical needs and legal rights. For an evaluation of your situation, please contact our law firm, Hersh and Hersh for a free consultation with one of our experienced attorneys.