Legally Speaking: When two IVF patients 'share' a pregnancy

THE FACTS

The first patient-Mrs. A-presented to the defendant ob/gyn in December 1997 with a history of three prior pregnancies, one of which ended in abortion and two that were ectopic gestations. Both of her fallopian tubes had been removed and she wanted in vitro fertilization (IVF). In April 1998, after superovulation, she had 25 eggs retrieved. Twenty of them were fertilized on April 24, according to the defendant embryologist, and 6 embryos were replaced in Mrs. A's uterus and another 10 placed in frozen storage at the biogenetic laboratory. In May 1998, the ob/gyn notified the patient that the IVF failed and instructed her to return in 1 month.

The second patient-Mrs. B-approached the same ob/gyn about IVF in March 1998. In April, the ob/gyn and the embryologist transvaginally aspirated her ovarian follicles. During the procedure, they obtained 7 eggs and noted minimal bleeding. The next day, the embryologist documented fertilization of 5 eggs. Two days after that, Mrs. B underwent embryo transfer performed by the ob/gyn, with the assistance of the embryologist. The treatment notes indicate "4 embryos were placed in the fundus of the uterus. Following the procedure, the embryologist noted that 1 embryo was left in the catheter. The speculum was replaced and the remaining embryo was inserted into the uterine fundus."

THE ALLEGATIONS

The plaintiffs obviously alleged that the IVF was improperly performed, such that Mrs. A's embryos were inadvertently inserted into Mrs. B. Both women alleged that the error had psychological ramifications, and they claimed economic damages related to the DNA testing and treatment. In fact, Mrs. B began to see a psychiatrist, who diagnosed her with posttraumatic stress disorder, depression, and anxiety. She further alleged that the ob/gyn "kept" the identity of Mrs. A from her, under the guise of physician/patient confidentiality.

DISCOVERY

Mrs. B testified, with a great deal of anger, that the ob/gyn thwarted the return of Mrs. A's biologic child, by failing to reveal the woman's identity under the guise of physician/patient confidentiality privilege. She and her husband claimed that the defendant ob/gyn suggested that the baby either be "raised by you or put up for adoption." Furthermore, Mrs. B contended that the ob/gyn offered to perform amniocentesis and DNA testing for free, in exchange for an agreement not to sue for the error.