Nine additional couples have filed a lawsuit against an in vitro fertilization provider, alleging that the provider not only destroyed their embryos but also implanted nonviable embryos despite being aware of their lack of viability.
In a lawsuit filed together on Tuesday, the couples claim that the employees at Ovation Fertility in Newport Beach, California, exposed the embryos to harmful levels of “poison.” 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 took the blame upon themselves and their own bodies following their unsuccessful pregnancies. Some even went to the extent of undergoing medical procedures to determine the cause of their failures. However, it wasn’t until late February and early March that Ovation Fertility disclosed to their physicians that there had been errors at the labs.
Ovation Fertility was accused of only revealing the issue after fertility doctors raised concerns about the 0% success rate for thawed embryos over a two-week period, which is typically 75%.
Last week, two additional couples came forward to file a lawsuit after discovering that their embryos were mistakenly destroyed in a lab. The devastating incident occurred when an employee unknowingly used hydrogen peroxide instead of the required sterile solution in an incubator.
Nine couples came forward on Tuesday, filing a lawsuit on various grounds. These grounds include negligence, medical battery, concealment, intentional misrepresentation, negligent misrepresentation, negligent hiring, retention and supervision, and loss of consortium. The couples are seeking a jury trial to address their grievances.
In a statement to ABC News on Tuesday, Ovation Fertility reassured that they have implemented protocols to safeguard the well-being and quality of every embryo entrusted to their care.
Ovation Fertility has released a statement regarding an incident that occurred due to an unintended laboratory technician error. The incident affected only a small number of patients. Upon realizing that the pregnancy rates were lower than their usual high success rates, the clinic promptly launched an investigation. The clinic emphasized that they did not intentionally transfer nonviable embryos for implantation.
Ovation Fertility expressed gratitude for the chance to assist patients in creating a family and assured that they have been maintaining close communication with the affected individuals since the problem was identified. They emphasized their commitment to upholding strict protocols to protect the integrity of the process.
According to the lawsuit, Ovation Fertility provided doctors with several explanations for the 0% success rate. These included attributing the failure to temperature levels, pH levels, carbon dioxide and other gas levels, as well as equipment failure in the incubator. However, the patients were informed and under the impression that distilled water was used, when in fact hydrogen peroxide was utilized.
According to the lawsuit, the plaintiffs claim that they were informed about the alleged incompetence within Ovation’s operations. They were allegedly told that the company hired inexperienced, cheap, unqualified, and untrained employees in order to cut corners and prioritize profits over the well-being of patients.
The lawsuit claims that Ovation’s embryologist has made several errors in the handling of embryos. These mistakes include freezing the wrong embryos on the wrong device, losing embryos during the biopsy process, and conducting biopsies incorrectly. As a result, the embryos have been harmed or degenerated. The couples also allege that Ovation was aware of these mistakes, which have resulted in the loss or destruction of embryos.
According to the lawsuit, the couples are also alleging that Ovation made deliberate efforts to hide errors made by patients and fertility physicians. The lawsuit claims that Ovation attempted to deceive patients into signing waivers and non-disparagement agreements in order to prevent them from raising their concerns.
The plaintiffs are seeking an undisclosed sum of damages.
‘I was completely shocked’
Brooke Berger, 37, and her husband, Bennett Hardy, 33, have been included in the recently filed lawsuit. In an interview with ABC News on Monday, Berger shared that she and Hardy faced challenges with fertility and decided to undergo IVF treatment in Colorado, where they were residing in the summer of 2022.
According to Berger, the initial transfer led to an ectopic pregnancy, requiring surgery and the removal of one fallopian tube. As a result, they had to freeze the remaining embryos.
Hardy and Berger relocated to Fullerton, a city situated 25 miles southeast of Los Angeles, in July 2023 when Hardy secured a job in Orange County. Their decision to move their embryos to Ovation Fertility was driven by the fact that their new doctor is affiliated with the clinic, as mentioned by Berger in November 2023.
Berger expressed his disappointment with their previous provider, a small practice that stored their embryos on site. He had believed that transitioning to a larger corporation with more resources would offer even greater safety. However, he now realizes the naivety of that assumption.
Berger and Bennett, along with the other couples, have filed a lawsuit against Ovation Fertility, accusing them of recklessly and wrongfully exposing their embryos to lethal amounts of hydrogen peroxide or some other caustic agent, resulting in their death. The lawsuit claims that the clinic was aware that the embryos were nonviable but failed to inform the couples about this crucial information.
Berger and her husband underwent a transfer of their last two embryos in January, with their doctors assuring them of a success rate exceeding 50%. Unfortunately, the implantation did not yield the desired outcome.
According to the lawsuit, Ovation Fertility failed to disclose the details of the incident to the affected patients’ fertility physicians until late February and early March. It was not until about a month and a half after the unsuccessful implantation that the couple was informed by their fertility doctor about what had happened.
“I was utterly shocked,” she expressed. “I truly couldn’t fathom it… Learning about what occurred was absolutely staggering. I mean, I can’t comprehend how such a mistake could have been made.”
Robert Marcereau, the attorney representing the couple and three other couples involved in the lawsuit, expressed his hope that the submission will inspire other affected couples to step forward and share their experiences.
According to the interviewee, families have placed their trust in Ovation, a reputed leader in the fertility industry. However, it has been tragically discovered that this is not the reality. In light of this, the lawsuit aims to not only support the affected families and seek justice for them but also to raise awareness about Ovation’s practices and advocate for necessary changes.
Berger expressed her devastation after the previous transfer failed. She and her husband were deeply affected by the news, and she tried to hide her emotional distress from him.
“I retreated to the secluded corner of our house, seeking solace in my tears. I allowed myself to release all the built-up emotions, and then I composed myself and emerged into the kitchen. There, I was met with a heartbroken expression on his face, as if he believed he was responsible for everything that had transpired,” she shared. “But he wasn’t at fault. The blame lies solely on Ovation, and I’m uncertain whether I can find it in my heart to forgive them for tarnishing my husband’s image in such a way.”
According to Berger, the couple is actively pursuing their plans to have children and is currently undergoing ovarian stimulation to increase the number of eggs retrieved and subsequently produce more embryos. Additionally, they are actively seeking a doctor who is not affiliated with Ovation Fertility.
Berger hopes that by sharing her and Hardy’s story, Ovation Fertility will be compelled to make changes to its lab practices in order to avoid any future incidents like the one they experienced.
“I sincerely hope that Ovation’s lab practices are brought into the spotlight and that it compels them to implement substantial changes to prevent such incidents from occurring again,” she expressed. “These errors are completely avoidable, and there’s absolutely no justification for them. Ovation must rectify this situation. If we don’t hold them accountable, I doubt anyone else will.”
