Telemedicine or telehealth is an exciting and seemingly overdue evolution in medical care.  It enables the patient to obtain medical consultation and treatment from anywhere via computer or smartphone.  Telemedicine services emerged in the early 2000s but were used rather sparingly until the onset of the pandemic in 2020.  The U.S. Dept. of Health and Human Services recently reported that that the share of Medicare visits alone conducted through telehealth increased 63-fold since 2020, from approximately 840,000 in 2019 to 52.7 million. States with the highest use of telehealth in 2020 included Massachusetts, Vermont, Rhode Island, New Hampshire and Connecticut.  Another report from McKinsey & Co. revealed that telehealth utilization overall has approached up to 17 percent of all outpatient/office visit. 

It is now obvious that telehealth appears poised to increase as a robust option for medical care based on continued utilization, favorable consumer perception, the regulatory environment, and strong venture capital investment into this space.

Therefore, it is important to balance the benefits and risks to both providers and patients and to consider some measures both of them can to avoid the risk of future harm to patients via this method.

Benefits to Patients and Providers:  

Undoubtedly, there are significant benefits associated with telemedicine.  It allows for care to more patients more often, particularly those who live in remote and rural areas.  It is also a major convenience for those many patients who are ill, disabled, elderly, or have childcare issues.  It also avoids exposing patients to COVID and other illnesses found in hospitals and doctor’s offices.  In addition, some patients have what is called “White Coat Syndrome,” a fear of hospitals and health care providers that is an obstacle to pursuing health care.  Finally, it allows for family members who may live far away to participate (with permission) in the appointments, which is a substantial benefit when the patient is elderly or impaired.

Risks to Patients and Providers;

However, a full assessment of telemedicine needs to take into consideration the risks and detriments associated with it.  Telemedicine can lead to less meaningful interactions between patient and provider and, accordingly, inadequate history taking.  It may also make it more difficult to communicate empathy and compassion, which is an essential aspect of a trust-based provider-patient relationship.  Obviously, there is no ability to do physical exam, such as palpating an area to reproduce pain, watching the patient walk, etc.).  Then, there is the frequently occurring technological glitches, patient lack of comfort/familiarity with technology, and the temptation to multitask while on Zoom, all of which amplify the risks to the patient.

Consequently, there is the risk of increased misdiagnoses and treatments.  CRICO Insurance Co, a major malpractice carrier in Massachusetts, reported that 66% of telehealth-related malpractice claims pre-pandemic between 2014-2018 pertained to missed diagnoses.  According to another study by The Doctor’s Company, these missed diagnosis claims are often life-threatening including 25% cancer, 20% stroke, 20% infection.  In addition, the ability to obtain the patient’s informed consent, which requires taking the time to explain the risks of pursuing or not pursuing a particular recommended course of treatment, may be impaired.

How to Prevent Harm;

Several factors can be employed to prevent or decrease the amount of malpractice associated with the expansion of telemedicine.  Telemedicine is most amenable to care of conditions such as sinus problems, minor respiratory infections, and allergies, which are conditions unlikely to result in malpractice claims.  Second, it should be used sparingly by specialists such as neurologists and neurosurgeons who treat patients with conditions that involve high risk of severe injury or death.  Providers should also document why the visit was done remotely and why it was safe to do so.  This will give the provider another opportunity to reconsider whether an in-person visit is safer.  It would also be beneficial to implement policies and protocols to help guide practitioners on these issues.

For patients, it is prudent to supplement telemedicine visits with emails or portal messages to communicate symptoms to providers.  Doctors are required to create notes of their telemedicine visits but, as with any visit, it is possible that information does not get relayed and/or documented in your medical record. This can lead to poor continuity of care and, more concerning, negligent diagnosis and treatment recommendations.  Most importantly, the patient should not sacrifice safely for convenience.  Just because telemedicine is easier does not mean it is appropriate for your particular health-related concerns.  If you feel that an in-person visit is more appropriate, it is your right to insist on it.  Your health, or your life, may depend on it.

Advertisement

According to a recent New York Times article, research suggests that diagnostic errors occur in up to one out of every seven encounters between a doctor and patient, and that most of these mistakes are driven by the physician’s lack of knowledge. Women are more likely to be misdiagnosed than men in a variety of situations.

Studies have shown that compared with men, women face longer waits to be diagnosed with cancer and heart disease, are treated less aggressively for traumatic brain injury, and are less likely to be offered pain medications. People of color often receive poorer quality care, too; and doctors are more likely to describe Black patients as uncooperative or non-compliant, which research suggests can affect treatment quality.

Patients who have felt that their symptoms were inappropriately dismissed as minor or primarily psychological by doctors are using the term “medical gaslighting” to describe their experiences

These studies and experiences comport with my own experience over 27 years of medical malpractice work. As I have written before on this blog, I have had tragic cases such as;

• a large young black man who was suffering from an adverse reaction to medication which inhibited his ability to breathe leading to hallucinations and erratic behavior. Instead of diagnosing and treating the problem, he was described as ‘combative’ and given large amounts of sedatives that caused his death.
• a young Haitian woman, who was a divorced, well-educated, working mother, dies after giving birth to her fourth child from internal hemorrhaging because the nurse wrote her off as “fiesty” and “difficult” when she began to lose oxygen to her brain, leading to her death.

So many experiences like this are distressing. However, I was pleased to learn recently that the Board of Registration in Medicine in Massachusetts will soon require doctors to take two hours of instruction in implicit bias. But I was also surprised that we are joining only a small number of states that require such instruction.

Hopefully, this is the start of a trend that will shed sunlight on gaslight.

by Jeffrey N. Catalano, Esq.

The pandemic has underscored the harsh fact that racial and ethnic minority groups have been disproportionately impacted by COVID-19.  While there are multiple reasons, being forced to live in unsafe housing and unhealthy environments are top of the list. These inequities are another kind of virus, and just as deadly. 

This struck home for me through a pro bono client of mine who was evicted from her subsidized housing.  Annie was a 43-year-old black woman born with multiple medical problems including asthma, lupus, and chronic kidney disease.  These conditions prevented her from keeping her job transporting children to and from day care and, consequently, she qualified for subsidized housing in 2004.  She was a single mother living in Dorchester with her son, an honor roll student and a good kid.

Then, one cold day in January 2018, her son, and Annie’s life, turned a very bad corner.  Her son, 18 at the time, participated in a murder. He pled guilty and was sentenced to eight years in prison.  Annie had absolutely nothing to do with the crime, but was forced out of her apartment under strict regulations that require tenants to be evicted if family members commit crimes.  However, under the law tenants are entitled to a hearing where they can present “mitigating factors” such as any disabilities that would be exacerbated by being rendered homeless.  Annie was unrepresented at the time and attempted to tell the Hearing Officer of the Boston Housing Authority about her multiple medical problems and that becoming homeless could be life-threatening for her.  However, the Hearing Officer didn’t give Annie the chance to discuss her disabilities or to produce medical records and ultimately upheld the termination.

Annie was determined to appeal this unfair decision. She and I first met in June 2019 at a volunteer clinic in the Appeals Court where we assist pro se people in pursuing an appeal.  She was a slight, shy woman who looked years older than her age. I recall that she had a mixed expression of hope and disappointment.  After learning her story, I concluded that she should appeal the termination based on her substantial medical problems.  I agreed to represent her and filed her appeal.  Then the pandemic hit, and the hearing was delayed until June 2020, a year from when we first met.

In July 2020, the Appeals Court concluded that the Hearing Officer improperly failed to consider evidence of her disability and ordered a new hearing at which Annie could present evidence of her dire medical condition.  We began requesting all of her extensive medical records in preparation for the hearing. 

Since Annie’s eviction, she had moved into her elderly mother’s small apartment in Dorchester with her brother and niece, sleeping on a couch.  Her health continued to deteriorate and, in November 2020, she suffered a seizure due to a brain tumor.  Annie had surgery to remove the tumor and survived; but her kidney function worsened, and she ended up on home dialysis with a tube in her stomach and chest. 

Finally, a hearing was scheduled for early February 2021.  I prepared Annie for direct and cross examination.  Then, the day before the hearing, the BHA told me they were conceding and giving her back her Section 8 voucher.  I called Annie to tell her the good news. She was truly happy for the first time since we met.  The only remaining step was to complete a simple form.  After getting the form, I emailed it to her.  However, she didn’t respond.  I called.  No response.  I texted.  No response.  Annie was always very responsive, so I was worried.  She had been in and out of the hospital so many times.  But I also knew she was a very determined woman. 

I drove to her apartment in Dorchester in early March.  I introduced myself to her mother and was invited in.  I anxiously scanned the small, dark, cluttered apartment.  “Is Annie here?”, I asked.  “She hasn’t been returning my calls and texts,” I said.  Her mother paused a moment.  “She died last week in the hospital,” she said simply and sadly.  I was in shock, even though a part of me expected this might be the case.  I shook my head, held back tears, expressed my sympathies, which felt weak and useless, and left.  I didn’t ask if it was due to COVID or her underlying conditions or both.  I knew how she died.  She was another victim of the devastating accumulation of racial disparities. 

Racial disparity is like a virus.  It starts in one place and then spreads and mutates until it finds a way to kill.  Annie’s early exposure to unhealthy living conditions and lack of access to quality health care was fundamentally why this young woman suffered major medical problems during her life.  She was then forced to quit her job and rely on subsidized housing in a crime ridden neighborhood, which led to her son getting involved in a murder.  That led to her eviction, her inability to get a lawyer, and the lack of due process before the BHA. Then, she was forced to live on dialysis in a dank, crowded apartment in a polluted neighborhood further impairing her health.  Eventually, these repeated infections of systemic racism were just too overwhelming and killed her.

I believe that, like a virus, racial inequities can be treated if not cured.  But it must be done aggressively using every possible modality.  Each of us must recognize our role in this.  I know I will never stop asking myself whether I could have gotten to this “disease” sooner by working faster and harder to get her out of that apartment, and maybe have helped her to win her battle.  I now owe it to her to get her story out to enlist others in the fight against injustice.

As a medical malpractice attorney, I am dedicated to exposing preventable injuries so that they can be rectified and so that other patients do not suffer the same harm.  One type of avoidable harm to patients results from hospital-based infections.  According to renowned author, surgeon, and public health advocate, Dr. Atul Gawande, in his book Better, over 2 million people a year acquire an infection while in the hospital and over 90,000 die of that infection. Yet, to my great frustration, every time I get a call about someone getting harmed or dying from such an infection, I have to reject the case.  Simply put, it’s impossible to establish who caused the infection and how it happened.  It could have come from a million sources that are undiscoverable.  As an attorney who uses the legal system to improve patient safety, I find this very distressing.

But there is one thing, according to Dr. Gawande, that physicians and nurses can do that will drastically eliminate this problem – They need to wash their hands!  It seems so simple, but in the race to get from one patient to the next, it often gets overlooked.  So, patients must take on the responsibility of preventing this from happening by simply asking: “Doctor, did you wash your hands?”

We can hope that one future benefit of the pandemic is that the health care system is using improved infection control systems.  But it’s a new and very dangerous world and the educated and assertive patients must do their part to ensure that the health care system works as intended.  Another way to look at it is that these are the patients who, with a simple question, increase their chances of spending the post-pandemic holidays together with family.

by Jeffrey N. Catalano, Esq., Todd & Weld LLP

During these tumultuous times, we must seriously address something else that’s viral within hospitals — racial disparity in health care treatment.  At a time when medical providers are rightly viewed as heroes for putting themselves on the front lines of the pandemic, it may be hard to address racism in healthcare.  But the time may be more critical than ever, with COVID-19 disproportionately impacting minorities at 4 to 5 times the rate of Caucasians according to the CDC.

In my long career as a medical malpractice attorney, I have seen too many examples of where racism or implicit bias has caused or contributed to devastating harm or death.

Here is just one real-life, tragic example (with the patient’s name changed for privacy).

Mary Contave came to the United States from Haiti with her family when she was a teenager.  She taught herself English, completed high school, and graduated from college.  She worked full-time and attended further schooling at night to advance in her career in accounting.  A divorced single mother, she lovingly raised her three children to understand the importance of education and hard work.  She was 36 years old when she went to a local hospital to deliver her fourth baby.

After a complicated C-section delivery, Mary gave birth to a healthy baby boy.  She held him briefly before he was taken to the nursery. Then, in the post-partum care unit, things started to go badly.  She started bleeding internally because her uterus failed to contract.  Although post-partum hemorrhage is the leading cause of maternal deaths in this country, the doctors and nurses ignored obvious signs and symptoms.  A defendant obstetrician even left the room after she observed “two gushes of vaginal bleeding.”  As Mary continued to bleed, she became dehydrated and begged for water.  A nurse told her she had to wait to drink because she just had surgery, and then intentionally placed a glass of water just out of reach.  As the blood depleted from her body, less went to her brain, causing her to become restless. Eventually, she became so agitated nurses could not get her calm enough to take her blood pressure.  The medical records described her as “combative.”  During a deposition of one of the nurses (who is Caucasian), she testified that Mary was “feisty” and “defiant.”  This nurse, who had never even met the kind-hearted Mary before that day, added that she was “even more [feisty] than she herself normally was.” Mary coded only seven minutes after she was labeled as “feisty [and] defiant.”  She bled to death, never getting the desperately needed blood transfusions until it was too late.

Mary’s mother, sister, and children had been kept outside the maternity ward, as they demanded to know what was happening and why they could not see her.  No one gave them any information. When Mary’s elderly mother banged on the door because she knew something wasn’t right, security guards came and forced her away from the door.  Mary died without being able to see her children again.  Her family was allowed in to see her only after she was dead and covered in blood.

Following a lengthy trial, we obtained a substantial verdict for her four children, who finally obtained justice and accountability for the tragic loss of their mother.  On the nearly all-white jury, there was only one woman of color.  After the verdict, that woman unexpectedly came up to us and said that she fought hard for our clients.  She said she knows what it means to be a black person who needs health care and gets ignored – that they often just don’t get the same care and attention as white patients.

There are so many studies about racial disparity in health care.  However, it gets so little attention in the real world.  I have had too many other tragic cases of medical negligence caused by racial disparity where “I can’t breathe!” is simply ignored. For example, there was the case of the Hispanic man suffering from pneumonia who entered an ER weak and unable to breathe.  Instead of ordering a chest x-ray, he was immediately suspected of drug abuse and sedated on a gurney where he died.  Another case involved a young black man who started to panic in the hospital when he couldn’t breathe because his tongue and throat swelled from his blood-pressure mediation.  Rather than getting an anesthesiologist to open his airway, he was deemed “combative,” injected with strong anti-psychotic medication, and put in restraints, as he eventually suffocated to death.

It is time to do a real analysis of racism in healthcare.  When there is harm or death to a person of color resulting from medical negligence, there must be an internal review where an important question asked is: “Did racial biases contribute to the bad outcome?”  People may be afraid to confront, much less admit to this possibility.  But the time has come for us to address it.

As we lawyers look at our justice system to assess and root out racism, the medical system must do the same.  In both situations, lives depend on it.

 

by Jeffrey N. Catalano, Esq., Todd & Weld LLP

As a devoted medical malpractice attorney who has represented patients over 25 years and a passionate patient safety advocate, I have never believed that healthcare providers should be immune from lawsuits for negligence.  To do so would cause a surge of unaccountable medical errors and financially devastated patients.  But the times, they are a changin’, and so too has my position during this pandemic.

Massachusetts Gov. Charlie Baker recently signed into law legislation that provides healthcare workers and facilities with immunity from civil liability while they are on the front lines of the Commonwealth’s COVID-19 response.  The legislation protects healthcare professionals, including doctors, nurses and emergency medical technicians, as well as certain healthcare facilities from liability and suit when the care that they provide is impacted by the COVID-19 outbreak only during the period of the COVID-19 emergency.

Admittedly, this is very broad language.  However, in my personal and professional opinion, this is essential and smart legislation.  (Frankly, anything that makes someone “immune” from something sounds really good right now.)  Our front-line healthcare providers should not have to deal with the added stress of being sued as they care for COVID-19 patients while also worrying about getting themselves or their family infected.  Absent this law, there would be potential grounds for lawsuits in certain situations.  For example, many experienced physicians are being recruited to attend to critical medical conditions far outside their area of expertise.  Doctors in training (called residents) are told to do procedures they were never taught with little or no supervision.  As reported in the Wall Street Journal recently, residents at a hospital in New York are falling into despair over crushing workloads to the point of suicidal thoughts.  These trainees wrote a letter stating they are “horrified and scared, paralyzed with feelings of helplessness and guilt.”  Meanwhile, they cannot decline an assignment without fear of professional repercussions.  These young doctors and other good healthcare providers should not be sued for mistakes that may happen when they are attempting in good faith, to the best of their abilities, to save lives.

There are some caveats to my opinion.  This law should not be used as an escape hatch to excuse negligence unrelated or only very remotely related to the COVID-19 emergency.  And if physicians are going to use the emergency to delay treatment for non-virus related medical problems, they must get the patient’s full written consent to do so (more on that in my next post).  Finally, we must be mindful that this is a temporary law.  Any shortcuts to training and supervision that take place now cannot persist and lead to bad habits and practices after the emergency if over.

I remain hopeful that once this emergency ends (and it will end), the energy, finances, and resources given to addressing this outbreak can then be dedicated to remediating the silent epidemic that preceded this one – the hundreds of thousands of Americans who die each year from non-virus related preventable medical errors.  But until then, we should demonstrate unity here, where there seems to be so much division everywhere else.

A disturbing Boston Globe Spotlight article points to a passive and chronically understaffed Food and Drug Administration that is needlessly putting consumers who eat leafy green vegetables at risk of serious injury from food poisoning.  The article describes the heartbreaking case of a young Canadian boy left legally blind and unable to speak or move after consuming a small amount of romaine lettuce on a family vacation to Disneyland in October 2018.  The child was struck with the severe case of food poisoning as part of a multi-state E. coli outbreak caused by contaminated romaine lettuce grown in California.

Sadly, he is not alone.  Since 2017, leafy green vegetables contaminated with E. coli has caused nearly 500 documented victims and six deaths in the U.S., according to the article.  Since September 2019 alone four E. coli outbreaks traced to lettuce have caused multiple illnesses in over two dozen states.  Leafy green vegetables – seemingly the paradigm of healthy eating – have become the leading cause of E. coli poisoning.  Yet, in the face of mounting problems with how lettuce is grown and distributed, the FDA has largely remained passive and even protective of food growers, according to the Spotlight article.

The article provides disconcerting examples:

• The FDA has been slow to investigate or publicize risks associated with the surge in E. coli outbreaks from leafy green vegetables.
• No farm or distributor has been fined or punished for the seven outbreaks traced to lettuce since 2017, even though federal law prohibits the sale of contaminated foods, and even though three of the outbreaks were linked to a single California lettuce grower.
• The number of FDA staff monitoring lettuce production is just under nine percent of the staff overseeing beef for the Department of Agriculture (614 FDA field investigators compared to 7,068 workers at Agriculture).
• The FDA relies almost entirely on voluntary cooperation from the lettuce industry, which, while it has brought about some safety improvements, has fallen drastically short of what is required to protect consumers.

The legal system can provide some measure of protection (but only after the fact) by obtaining monetary damages to compensate those suffering serious injuries from food poisoning.  Food growers, distributors, and retailers all have a legal duty to provide food that is safe to consume.  Massachusetts law protects individuals who become sick due to food poisoning, including compensation for their injuries.  The FDA must and can do better to protect consumers from ever getting infected in the first place from the dangerous toxins that can contaminate vegetables.

Todd & Weld represents individuals harmed by food-borne illnesses.  When food suppliers don’t live up to their responsibility, we at Todd & Weld feel it is our responsibility to prevent this from happening to others.

For more information, please contact Jeffrey Catalano at jcatalano@toddweld.com or 617.720.2626.

Jeff has been selected to the Best Lawyers in America directory for personal injury and product liability litigation (plaintiffs) for six consecutive years (2015-20), and has been designated as one of the Top Rated Lawyers in Medical Malpractice by The Boston Globe and Wall Street Journal.  He has been chosen as a New England Super Lawyer each year since 2009.

The Centers for Disease and Control Prevention recently reported that a Salmonella strain that has caused 255 infections, 60 hospitalizations and two deaths is resistant to antibiotics used to treat serious cases of food poisoning.

“The antibiotic resistance pattern of this strain is alarming because the primary oral antibiotics used to treat patients with this type of Salmonella infection may not work,” CDC epidemiologist Ian Plumb told CNN.

Those afflicted in the June 2018-March 2019 outbreak across 32 states were likely sickened by contaminated beef in the U.S. or soft cheese obtained in Mexico, according to the CDC. To prevent infection, the CDC warns consumers to avoid eating soft cheese made from unpasteurized milk, regardless of the source of the cheese, and, when preparing beef, to use a thermometer to ensure appropriate cooking temperatures (145ºF for steaks and roasts, and 160ºF for ground beef).

Because beef is the likely source of the Salmonella Newport outbreak – and not unhygienic food handling or contaminated irrigation water – the CDC points to the use of antibiotics in cattle as the likely culprit. The livestock industry administers antibiotics to cattle as a way to not only combat illnesses in the animals, but to also enhance their growth.

But the routine administering of antibiotics in livestock makes certain Salmonella strains resistant to antibiotic treatments in humans suffering from food poisoning. The CDC in its report said avoiding the unnecessary use of antibiotics in cattle, especially those that are important for the treatment of human infections, could help prevent the spread of this drug-resistant Salmonella strain.

Overusing antibiotics with livestock – such as routinely providing it to healthy animals to prevent illnesses – is simply unacceptable if it jeopardizes proper medical treatment of individuals suffering severe injuries caused by food poisoning!

Salmonella is a contamination of food caused by bacteria and can lead to diarrhea, fever, and abdominal cramps between 12 to 72 hours after infection. It is typically caused by undercooked poultry, ground beef, or eggs.

More severe cases can cause dehydration, or spread from the intestines to the blood stream, often necessitating prompt medical treatment with antibiotics. In some cases, Salmonella can cause joint pain, known as reactive arthritis, which can last for months or even years and lead to chronic arthritis.

The CDC estimates that Salmonella causes about 1.2 million illnesses annually in the U.S., and approximately 23,000 hospitalizations and 450 deaths.

Food producers, distributors, and providers have a legal duty to supply food that is fit and safe to consume. Unfortunately, consumers are constantly at risk for suffering from food poisoning.
Todd & Weld represents individuals harmed by food-borne illnesses, obtaining, for example, a $1.13 million settlement for a woman who contracted E. coli from salmon served at a restaurant. So, when food suppliers don’t live up to their responsibility, we at Todd & Weld feel it is our responsibility to prevent this from happening to others.
For more information, please contact Jeffrey Catalano at jcatalano@toddweld.com or 617.720.2626.
Jeff has been selected to the Best Lawyers in America directory for personal injury and product liability litigation (plaintiffs) for five consecutive years (2015-19), and has been designated as one of the Top Rated Lawyers in Medical Malpractice by The Boston Globe and Wall Street Journal. He has been chosen as a New England Super Lawyer each year since 2009.

A groundbreaking new study from the Betsy Lehman Center for Patient Safety shows that medical errors continue to plague patients in Massachusetts and that the human and economic costs are astronomical.  In particular, the study proved a few essential issues:

Medical Errors are Devastating to the Economy.

The study revealed that errors in Massachusetts totaled 61,982 in one single year, and that it costs an astonishing $617 million to provide the follow-up care required by those patients as a result of the mistakes. These findings are on the conservative end, according to the study, since the study’s methodology did not take into account diagnostic errors, a common type of medical negligence.

Transparency is Essential.

The study also indicated that two-thirds of respondents expressed dissatisfaction with how their health care providers communicated with them after the errors. However, when medical providers showed greater openness in communications, patients reported less emotional harm and less avoidance of health care services.

Only 19 percent of the patients who reported an error said a caregiver apologized after the error was made, even though Massachusetts law requires health care providers to disclose medical errors causing significant harm and encourages them to apologize.

When providers communicate honestly about medical mistakes, patients were less likely to feel betrayed, sad, or depressed, according to the study, and less likely to avoid medical professionals and facilities for future medical care.

The study reaffirms that the public is becoming more aware that medical errors are devastating and more aware that doctors are not holding themselves accountable.

Interestingly, the survey showed that many patients who reported medical errors are astute observers of what happened and why errors were made, which suggests that patients and their families can contribute to patient safety in order to prevent errors from happening to others.

In short,  we now have definitive proof that transparency can save lives AND money!

For more information, please contact Jeffrey Catalano at jcatalano@toddweld.com or 617.720.2626.

Jeff has been selected to the Best Lawyers in America directory for personal injury and product liability litigation (plaintiffs) for five consecutive years (2015-19), and has been designated as one of the Top Rated Lawyers in Medical Malpractice by The Boston Globe and Wall Street Journal. He has been chosen as a New England Super Lawyer each year since 2009.

One of my cases recently received a great deal of media attention, including on Good Morning America.  It is a sad case of what happens when an IVF clinic fails to appreciate the importance of informed consent and transparency in freezing embryos.

Marisa Cloutier-Bristol first learned in August 2017 that Women & Infant’s Hospital in Providence had been preserving her frozen embryo in storage since 2004, the year she underwent in vitro fertilization treatments with her husband, and that they were going to start charging her $500 per year to store it.  They offered that she could either discard it, donate it, or have it put back into her.

This shocking news devastated Ms. Cloutier-Bristol, then 44, who for 13 years had assumed that four embryos she and her husband produced had been destroyed and discarded after being told by her physician that they were “abnormal” and none should be implanted in her uterus.

However,the Hospital actually froze one of the embryos without her knowledge or consent.  Unaware of another chance at having a baby, the couple decided to stop attempting to conceive through in vitro fertilization.

The hospital never asked the woman and her husband to sign a consent form indicating each partner’s wishes on what to do with the embryo in the event of divorce or death. The woman’s husband died unexpectedly in 2006 of a heart attack. Absent the consent form, the hospital is ethically and legally prohibited from doing anything with the embryo.   It must remain frozen  . . . for eternity.

Learning that a viable embryo has remained in storage was devastating to Ms. Cloutier-Bristol. She was robbed of the chance to have another child who would have been a part of her deceased husband, and a sibling for their only son who is now off to college.  Now knowing it must be frozen forever causes her to “grieve the loss of child she was never able to have.”

Since the 1990’s the standard of care has been to have couples agree in writing before undergoing in vitro fertilization treatments as to what will be done with embryos that are frozen should one of them pass away.

Hopefully, this highly publicized lawsuit will serve as a reminder to IVF clinics everywhere that they have tremendous responsibility not only to their existing patients, but to the thousands of potential lives they are storing.  They not just preserving an embryo, they are preserving a couple’s hope and desire for a child for them to love.  Nothing could be more delicate.

For her full story, please see her video on You Tube.