Malpractice Litigation Surrounding In vitro Fertilization in the United States: a Legal Literature Review

Importance: Analysis of malpractice lawsuits that involve in vitro fertilization (IVF) can provide insight into the breadth of legal challenges faced by IVF clinics and the patient harms and financial consequences that can result from alleged errors in practice.

Objective: We aimed to review malpractice litigations involving IVF and identify common themes in plaintiff allegations and defense arguments.

Evidence Review: We queried Nexis Uni, Westlaw, and CourtListener legal databases to collect records from malpractice litigations involving IVF. The nature of the cases, allegations, and outcomes were abstracted from court documents.

Findings: Of the 447 cases identified in the query, 53 involved both malpractice and IVF, occurring between 1993 and 2022. Defendants included a reproductive endocrinologist in 19 (35.8%) cases, an academic institution in 17 (32.1%) cases, embryology personnel in 9 (17.0%) cases, and nursing staff in 2 (3.8%) cases. Twenty-four (45.3%) cases involved embryology errors (e.g., lost specimens and incorrect sperm donor), 11 (20.8%) preimplantation genetic testing errors (e.g., child born with genetic illness despite testing), 6 (11.3%) medical or surgical complications (e.g., ovarian hyperstimulation syndrome), 4 (7.5%) misdiagnoses (e.g., malignancy before cycle start), 3 (5.6%) misrepresentations of IVF outcomes, 2 (3.8%) medical eligibility screening issues (e.g., medical comorbidities in a gestational carrier), 2 (3.8%) confidentiality breaches, and 1 (1.9%) case of discrimination. The most common secondary claims were negligence (23 cases, 16.4% of all claims), breach of contract (13, 9.3%), lack of informed consent (11, 7.9%), and negligent infliction of emotional distress (11, 7.9%). Twenty-nine (54.7%) cases were decided in favor of the defending IVF clinic or provider, 13 (24.5%) cases were decided in favor of the plaintiff, and 11 (20.8%) involved ongoing proceedings. Financial awards ranged from $4171 to $14,975,000, with the largest monetary award resulting from a cryostorage accident class action lawsuit.

Conclusion: In vitro fertilization malpractice claims are varied, with the most common issues involving embryology laboratory processes and genetic testing errors. Some errors may be avoidable with increased vigilance and implementation of stringent laboratory and clinical guidelines. Understanding jurisdiction-specific legislation and court processes may also assist IVF providers in navigating the malpractice litigation process.

Relevance: This comprehensive review of IVF litigation may have the potential to promote practices that protect both providers and patients.