Woman Sues Fertility Clinic for Loss of her Stored Eggs

Qi Zhang (“Zhang”) has commenced a lawsuit against ReproMed, ReproMed’s medical director, unidentified staff members, the U.S. manufacturer, and the Canadian distributor of the cryogenic tank (the “Defendants”), claiming that these parties are responsible for the loss of dozens of her stored eggs.

Zhang alleges that she spent $10,000 to have 65 of her eggs removed and stored at the ReproMed clinic earlier this year.

Zhang’s eggs were destroyed as a result of the malfunction of a cryogenic storage tank in May 2018. The temperature in the tank was permitted to rise likely destroying all of the embryos, sperm, and eggs contained within it.

Zhang is claiming for $27.5 million in damages for alleged negligence, breach of contract, and breach of statutory duties.

Zhang alleges that the clinic failed to inspect, monitor or test their storage tanks and failed to alert staff of tank malfunctions, amongst other alleged infringements.

Zhang’s lawsuit also alleges that the Defendants “failed to exercise the skill, knowledge and judgment of ordinary and prudent health-care professionals working with irreplaceable biological material in a fertility clinic setting”.

According to Zhang, ReproMed offered to retrieve more eggs for free. However, given that the process of egg retrieval is so incredibly invasive, involving weeks of daily drug injections, blood tests, and other examinations, Zhang does not believe that she is physically or emotionally prepared to begin the process all over again.

WHAT IS A CLASS ACTION LAWSUIT?

This lawsuit has been filed as a proposed class-action lawsuit on behalf of Zhang and other potential plaintiffs who have also been affected by these circumstances.

This unfortunate incident is likely to have affected many other individuals with dreams of having a baby. The cryogenic storage tanks can hold thousands of eggs and embryos. This particular clinic is also one of the major repositories in Canada.

A class action lawsuit is a civil lawsuit commenced by one or more representative plaintiffs on behalf of a larger group of individuals (the class members). This type of lawsuit attempts to have common claims resolved in a single proceeding with the result binding upon all class members and the defendants.

A class action lawsuit is advantageous in certain situations in order to eliminate the need to participate in repetitive and costly hearings and individual lawsuits.

In Ontario, a lawsuit which is started as a class proceeding requires an Order for Certification from the Court certifying it as a class action. In order to certify the lawsuit as a class action, the court must consider the following:

• whether there is a cause of action;
• whether there is an identifiable class;
• whether common issues are raised;
• whether a class action is preferable for the resolution of the common issues; and
• whether there is a suitable representative plaintiff.

If the Court is satisfied that a class action is appropriate, it will certify the action. Certification does not determine the merits of the case, it is simply a procedural matter to ensure that a case is appropriate to be dealt with as a class proceeding.

If a settlement cannot be reached, a class action lawsuit will proceed in the same manner as a traditional lawsuit with the common issues to be determined by a trial before a judge.

REGULATION IN THE FERTILITY INDUSTRY

This lawsuit emphasizes the need for better regulation in the fertility industry. This industry is frequently criticized for lacking supervision and accountability as there is no federal oversight regarding fertility care in Canada.

Fertility services that take place in hospitals are subject to the hospital’s policies and procedures, whereas fertility services that take place outside of the hospital develop their own guidelines regarding fertility care. The fertility clinics that are run outside of hospitals often lack accountability. Therefore the standards are not consistent across the province.

As it stands today, the College of Physicians and Surgeons of Ontario only has the ability to inspect out-of-hospital fertility facilities if they use specific forms of anesthesia or sedation. This means that the egg retrieval component of the IVF procedure may be inspected and monitored as it requires anesthesia or sedation. However, the process of storing sperm, eggs or even embryos is not subject to any form of inspection or monitoring by the College of Physicians and Surgeons of Ontario.

On the federal level, Health Canada has the authority to inspect facilities that collect, store, test or preserve semen donations, but their focus is to reduce the risk of infectious disease to women who are receiving donated semen. The federal government does not have any regulatory requirements in place to inspect the facilities that deal with donated eggs.

The Canadian government is currently working on drafting regulations regarding the assisted reproduction field. However, it is unknown at this time when these new regulations will be in force.

We will continue to follow any developments that occur in the Zhang class action lawsuit and any developments in the legislation regarding the fertility industry and will provide updates on this blog as they become available.

The personal injury lawyers at Jasmine Daya & Co. have many years of experience litigating claims on behalf of accident victims. We provide free consultations for new clients to review your case and discuss potential options. Contact our office today online or call 416-967-9100 to make an appointment.