A recent mechanical malfunction of a liquid nitrogen storage freezer at University Hospital’s Ahuja Medical Center (“UH”) led to the thawing, and ultimate destruction, of approximately 2,000 frozen eggs and embryos. The hospital notified about 700 patients following the malfunction. Within a week of the incident, nearly a dozen separate class actions have been filed in the Cuyahoga County Court of Common Pleas against UH and a handful of related entities.

As background, on March 3, 2018, UH experienced what it later deemed an “unexpected temperature fluctuation” that led to the unintentional thawing of around 2,000 eggs and embryos in a cryogenic preservation (“cryopreservation”) storage tank at its Fertility Center. For those unfamiliar with the technique at issue, the process of harvesting and fertilizing human eggs is expensive, and implantation in the uterus is not always successful. In a typical procedure, a woman’s eggs are retrieved while the patient is under anesthesia in an operating room after medically-induced stimulation of the ovaries. These “harvested” eggs are either immediately frozen via cryopreservation or combined with sperm by in vitro fertilization to develop into an embryo and then cryogenically preserved. Thus, cryopreservation allows patients to reduce the number of needed surgical retrievals by storing unused eggs or embryos for use at a later time.

Cryopreservation uses liquid nitrogen to delay further cellular development. Eggs and embryos are stored in cryotubes and are supposed to remain frozen until thawed for use. When intentionally performed, a cryotube can thaw in around an hour, and then needs to be placed in an incubator so it can live until the implantation procedure. Even when placed in an incubator, the embryo can last only a day or two in this thawed state. Therefore, if thawed unintentionally and not placed into an incubator, the pre-embryos are destroyed in a relatively short amount of time.

UH may be able to settle a portion of lawsuits brought against it by entering into settlement agreements that would waive procedure fees for future treatments, which in some cases can reach upwards of $20,000. However, for other patients that lost eggs and/or embryos at UH this may not satisfy their losses, especially where a patient is no longer producing eggs and is thus unable to “redo” the process even if the fees are waived.

Of the complaints already filed, most allege a combination of the following causes of action: negligence, gross negligence, breach of contract, breach of a bailment contract and breach of a fiduciary duty. It is not surprising that the early complaints filed do not seek compensation under wrongful death statutes, as state legislation governing what constitutes the loss of a “human life” is particularly complicated in this context.

While the facts of UH’s particular mechanical disruption are unique, prior courts have addressed causes of action arising out of lost or destroyed embryos. One such case may have expanded plaintiffs’ rights – at least under Arizona law – to recover for breach of a bailment contract in a similar situation.

In 2005, an Arizona couple sued the Mayo Clinic (“Mayo”) after the couple, attempting to transfer cryopreserved pre-embryos to the Arizona Center for a tubal embryo transfer, learned that half of their frozen embryos were allegedly missing. See Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 390, 121 P.3d 1256, 1260 (Ct. App. 2005). The Jeters did not know whether the pre-embryos were lost, destroyed or possibly given to the wrong people. Following the incident, the Jeters brought four causes of action against Mayo, including breach of a bailment contract. Although the superior court initially dismissed the complaint in its entirety, the appellate court reversed the dismissal of breach of a bailment contract along with two other causes of action.

In Jeter, Mayo argued that the Jeters did not have a written bailment contract as allegedly needed to pursue such a claim. While the superior court’s minute entry rulings did not expressly address the sufficiency of the Jeters’ evidence of a written contract, the appellate court considered the Jeters’ various consent forms (“Consent Regarding IVF Services,” “Consent Regarding Thawing of Cryopreserved Embryos,” and “Request for Transfer of Cryopreserved Embryo or Semen Specimens and Assumption of Risk”) sufficient to satisfy a written bailment contract “needed to withstand a motion to dismiss” under Arizona law. Id. at 405. Importantly, the Court appeared to use the context of cryopreservation to expand its treatment of what type of form would constitute a writing. The Court held that while Mayo characterized these forms as merely “consent forms”, the fact that Mayo agreed to “cryopreserve and store the pre-embryos” created a storage agreement that rose to the level of a written bailment contract, though, “limited to these particular circumstances.” Id.

Under factually similar circumstances, it is possible that an Ohio court will similarly find that the consent forms plaintiffs signed created a written and enforceable contract that UH may have breached. Notably, most of the early filers against UH were unable to attach a copy of any written agreement to their pleadings because upon signing UH did not provide them with copies of the documents. As a shield against this, many plaintiffs have pled in the alternative that their agreements with UH created either implied contracts or valid and enforceable oral contracts.

We will continue to monitor these developing cases against UH and what causes of action – if any – gain traction in the Ohio court of common pleas.