Frustacis to Go Public Again in Court Battle

A smiling little girl, eyes twinkling behind Coke-bottle glasses, opens the door of her brand-new home in a tract alongside the orange groves on the outskirts of Riverside. Her brother, smaller, thinner, but with the same sunny countenance, chatters merrily by her side.

From the look of it, the boy could be a year younger than his sister. In fact, the two were born but a moment apart, and they had company. Five more babies emerged from the same womb, all under 2 pounds. One was stillborn.

The Frustaci septuplets. In the first days of their lives, every machine-assisted breath they drew was national news. Then, one by one, some of them stopped breathing altogether, leaving three babies instead of seven. More coffins than cribs.

After sporadic progress reports, the Frustacis faded from view. But as the children approach their fifth birthday, the family is preparing for a return to the public arena. Soon, Patti and Samuel Frustaci intend to go to court to try to prove that the Los Angeles doctor who treated her for infertility was responsible for the multiple pregnancy and all the troubles that followed the children’s media-event birth on May 21, 1985.

In their malpractice and wrongful-death lawsuit against fertility specialist Jaroslav Marik, the Frustacis depict the five years since then as hellish, their days and nights consumed with caring for three babies with myriad medical and developmental problems, all the while grieving for the four they lost.

The surviving children, the Frustacis contend, suffer profound lifelong disabilities, including cerebral palsy and serious eye problems, and will always need special schools and treatment. Though the couple’s lawsuit does not yet specify damages, they are expected to seek millions of dollars, including a loss of wages for Patti, a former high school teacher.

The word in medical circles is that the trial is likely to be a credibility contest between mother and doctor. Lawyers for Marik say Patti Frustaci was treated properly but that she was obsessed with getting pregnant fast and took a higher dose of a potent fertility drug than was prescribed. Additionally, the defense lawyers say she disregarded doctors’ orders by refusing a key medical test because of the inconvenience and expense.

The defense also presents a far cheerier picture of the surviving children, based on examinations by its own doctors. “If you saw them,” said Marik’s attorney, Craig Dummit, “you wouldn’t be able to see anything wrong with them.”

For now, the story of the Frustacis’ struggle to make sense of the bittersweet twist to their quest for a family is told mostly in the context of the coming litigation--in the depositions and other documents compiled for a trial scheduled for early next year in Santa Monica Superior Court. Patti and Sam Frustaci, who rarely speak publicly, declined to be interviewed for this article, although they did allow the children to be photographed.

At the heart of their story, judging from the court records and the few interviews they have granted, is a collision of science and religion. Devout Mormons, the Frustacis were eager to go forth and multiply, only to be stymied by Sam’s low sperm count and Patti’s failure to ovulate properly.

Unwilling to accept childlessness, they turned to medical technology for a combination of fertility drugs and artificial insemination. Technology succeeded to excess--with a sevenfold pregnancy that was highly unlikely to produce full-term, healthy babies, and which posed risks to the mother’s health as well.

Medical technology also had a solution: Doctors recommended a full abortion, or a “selective reduction” that would abort most of the embryos, leaving one or two with a good chance to thrive. But the Frustacis said no. This technology was contrary to the will of God, they said, and the teachings of their church.

Entwined in the story is one other person whose life was changed by the birth of the septuplets. Marik, 57, a native of Czechoslovakia who has been treating fertility disorders for 20 years, was publicly criticized by other doctors, and his reputation and practice have suffered.

Marik says the Frustaci matter has disillusioned him enough to dissuade his daughter from attending medical school. Determined to be vindicated, he has so far refused to consider any out-of-court settlement.

Patti Jorgensen met Sam Frustaci, a salesman, at a Mormon singles’ social in Santa Monica in 1980. They married about six months later, on March 7, 1981. One of seven children and with her younger sisters already pregnant, Patti Frustaci, now 35, has said she was eager to join them in motherhood.

Within months of her wedding, the bride consulted Dr. Keith Merrill, a gynecologist and a Mormon church lay leader. She wanted to get pregnant, but her menstrual cycle had been irregular. Merrill placed her on the fertility drug Clomid, and she and her husband underwent a battery of tests when she failed to conceive.

After more than a year’s effort, none of the medical procedures--including a variety of surgeries, drug therapy, and the injection of Sam’s concentrated sperm directly into Patti’s uterus at a propitious time in her hormonal cycle--had brought the coveted conception.

The next step was a referral to the Tyler Medical Clinic in Westwood, and to Marik, who practiced there. Under its founder, infertility pioneer Edward T. Tyler, the clinic was one of about a dozen in the country that helped test a fertility drug called Pergonal starting in the late 1960s. The drug has been used at the clinic ever since, and has been credited with thousands of successful births.

One of the births was that of Joseph Frustaci, the septuplets’ older brother, in March, 1984. By August of the same year, Patti Frustaci was back at the clinic, requesting Pergonal for a second pregnancy. In her medical chart, she is quoted as saying, “It is the only thing that works for me.”

Marik, in a recent interview, suggested that Patti’s success with her first pregnancy led her to think that fertility treatment was a sure thing. “Maybe she thought because it went so well the first time, it would happen that way again,” he said.

Marik cautions that multiple pregnancies are always a risk when fertility drugs are used. “It’s the chance you take,” he said. “It’s rather simplistic to think you can control the situation. All you can do is make things more or less likely to happen.”

He expressed confidence that he would prevail in court, but also said the trial will put jurors “in the unenviable position” of having to decide on issues “not even clearly defined in the opinion of the experts.”

Pergonal is the fertility drug of last resort, used only when others have failed at their task of helping a woman get pregnant.

The drug is essentially a hormone-replacement therapy that stimulates egg-bearing follicles in the ovary to mature in women whose own hormone production is faulty. It is self-administered by injection. Then, at the appropriate time of the month, a second drug called HCG (human chorionic gonadotropin), which triggers ovulation, is injected by the doctor.

The biggest problem associated with fertility drugs is that they tend to cause more than one follicle to develop fully, increasing the risk of multiple births.

Doctors try to reduce the risk with monitoring tests that can provide warnings--though not infallible ones--if the ovary is overly ripe. In those months, it may be prudent to withhold the HCG shot and delay insemination until a more manageable cycle.

This is where, the Frustaci lawyers allege, Marik fell short. They contend that he failed to perform one test and failed to wait for the results of a second before artificially inseminating Patti Frustaci.

Marik’s attorney, Craig Dummit, denies it, casting blame on Frustaci for refusing the first test and for insisting that it was unnecessary to await the result of the second before proceeding.

Once Patti Frustaci’s obstetrician, Martin Feldman, learned of his patient’s multiple pregnancy, he advised her to undergo either a full or partial abortion, according to depositions. She refused.

“My feeling is that it is murder,” Frustaci said in one interview. “I can’t take baby A and keep C and kill B and keep D. I’m not God.”

The company that makes Pergonal, the Ares-Serono Group, based in Geneva, Switzerland, reported the septuplet pregnancy to the U.S. Food and Drug Administration as an adverse reaction to its product. And Patti Frustaci proceeded with a pregnancy that her lawyer now describes as “a medical catastrophe.”

The septuplets were born more than 10 weeks early at St. Joseph’s Hospital in Orange, by Cesarean section. Doctors had tried to delay the birth as long as possible, but by the time Patti Frustaci entered her 29th week of pregnancy, her breathing difficulties and high blood pressure had got to the point where her own health--and that of her babies--was in danger.

Had all seven lived, it would have been a record. The Guinness Book of World Records lists three sextuplet births in which all the babies survived, but no such case involving septuplets.

But Christina Frustaci was dead at birth. The other six babies were whisked next door to Children’s Hospital. David, Bonnie and James survived for less than three weeks there in the neonatal intensive care unit.

Patricia, Richard and Stephen eventually went home to Riverside, although in Stephen’s case, it was after 20 weeks in the hospital.

According to the Frustacis’ attorney, the three survivors, especially Stephen, have severe developmental and medical problems. Their current IQs, he said, are 40 for Stephen, 60 for Richard and 80 for Patricia. An average IQ is 100.

Dummit, Marik’s lawyer, said that tests by defense doctors have placed Richard and Patricia’s IQs at 80 and 86, respectively. They have not yet tested Stephen.

Patricia, Dummit said, is “totally, completely normal.” Richard is “mildly delayed” in a small number of areas but will catch up and lead a “completely normal” life.

Stephen “has some problems and may have problems all his life,” Dummit said. He will need special school programs, but should never have to be institutionalized and should be able to function on his own, the lawyer contended. “He will never be an Einstein.”

He also said the children’s eye problems are not related to their crowded gestation or early birth.

Neighbors of the Frustacis offer a lay view. “They’re kind of slow,” said one, who requested anonymity.” Said another: “They seem a little off--not retarded. One child is a little slow.”

It has been six years since Patti Frustaci filled her prescriptions for Pergonal at the Sav-On in Orange, but attorneys for Marik are still trying to figure out exactly how many vials of the drug she obtained.

Dummit said he believes Patti was trying to stockpile the drug in order to take more than the prescribed dose. He is particularly intrigued by a note on the back of a prescription, which, according to a copy in the court file, said: “Mrs. Pat Frustaci called and asked us to order 40 vials of Pergonal tomorrow. . . . She will bring in her new prescription 11-6-84. I think we should call Dr. Marik and see how this is intented (sic) to be use (sic). She had this filled last on 10-19-84 (for) 30 vials. Didn’t order yet. Dick.”

To support its allegations of stockpiling, the defense has pointed out in court documents that Patti Frustaci had a Pergonal prescription refilled a month after learning of the septuplet pregnancy. Medical records from the Tyler clinic also note that she reported injecting herself with more vials than the doctor ordered, which her attorney, renowned personal-injury specialist R. Browne Greene, vehemently denies.

Greene said Patti Frustaci denies being anything but a model patient.

Marik remembers it differently. “She did have a tendency to want to run the show,” he said. Dummit is more blunt in his assessment of Patti Frustaci as a patient: “She wanted to have four or five children and nothing was going to stop her.”

Greene says he relishes the prospect of defending Patti Frustaci against suggestions that she was a willful self-treater who is herself partly to blame for the pregnancy. He castigates Marik’s clinic as a “meat market” and “cash register” operation.

“He’s going to be snuffed on credibility,” Greene says of Marik. “I can’t wait to get to him.”

Despite its high-tech image, fertility treatment is an inexact science, doctors say. Therapeutic dosages vary from woman to woman, month to month. Theories and tests prove more or less reliable as medical knowledge expands.

But if there are no hard and fast rules, there are guidelines, referred to in the world of medical malpractice as “standards of care” at any given point. What they were--or weren’t--in 1984 is at the heart of the Frustacis’ lawsuit.

There are three tests that provide feedback to a doctor whose patient is taking Pergonal. One, a lab test on cervical mucus, is an indicator of the amount of estrogen in the system and whether ovulation time is near.

The second measures the level of estradiol, the main estrogen, in the blood. The third is an ultrasound test, which gives a more or less accurate count of the mature follicles in the ovary.

If the ultrasound test shows a forest of ripe follicles or if a high estradiol reading signals that the ovary is in overdrive, the doctor can halt the process for that month by withholding the HCG shot, which actually triggers ovulation, and the insemination.

Patti Frustaci did not take the ultrasound test, however, and she was given the HCG shot and inseminated with donor sperm before the estradiol reading came back from the lab. Both sides agree on this much, but disagree greatly on the reasons and circumstances.

Marik insists that Frustaci was advised to have the ultrasound test and was referred to a radiologist, but refused to go. In his deposition, Marik says his patient balked because the test would have meant a long drive from her home and a day of work missed.

A note in her medical chart, according to a deposition, said, “Patient did not have ultrasound or hormonal follow-up for reason of her occupation and costs. Informed of the risks.”

This would seem important corroboration for the doctor, except for one thing: The note is dated Sept. 22, 1985, four months after the babies were born. Greene contends that this is evidence of a clumsy cover-up attempt. “Patti Frustaci never refused ultrasound,” he said.

The day after the blood test, Marik said he was told verbally by a lab technician that Patti’s estradiol reading was high. But it wasn’t until two months later that the actual number--3,200--was entered on her chart

At the time, 1,000 was considered a safe upper limit in some medical circles. Since then, some doctors routinely push the level far beyond the 3,000 mark, especially for in vitro fertilization. In any event, Marik said in his deposition, “I don’t know anybody who would come forth and say that insemination cannot be done unless you know the estradiol levels.”

A doctor for Ares-Serono, the Pergonal manufacturer, says the Frustaci case, having occurred during a time when ultrasound testing was becoming more popular, falls into a gray area. Dr. Paul Manberg, vice president of research for the company, said that in his opinion the use of the tests was not the standard of care among infertility practitioners in 1984.

Speaking as an individual, not a company spokesman, Manberg said this seems to be a case in which a woman had a wonderful outcome her first go-round, and expected nothing short of that upon her return. “There are times when you don’t get a perfect result.”

Patti Frustaci was arrested on suspicion of driving under the influence of alcohol and Valium on a sweltering afternoon in June, 1987, by a CHP officer who found her car stuck in the sand in the center divider of Interstate 15 between Barstow and Las Vegas.

With her in the car were the three surviving septuplets. The officer, William Gadberry, said in a deposition that Frustaci told him she had had a spat with her husband in Las Vegas and decided to head home. En route, she reconsidered and tried to turn around. Patti Frustaci later pleaded no contest to reckless driving.

Frustaci attorney Greene said the episode is irrelevant to the lawsuit, except perhaps as a measure of the extraordinary stress Patti has been under. “She does not have a drinking problem,” he said.

Today, the family lives in relative anonymity in a blue-and-white $180,000 house in a new development where the aroma of orange blossoms wafts across the hills. The American middle-class idyll is for sale here; in case anyone needs reminding, the model homes bear the names of the perfect TV families of yore--the Cleavers, the Andersons, the Nelsons.

Patricia, Richard and Stephen Frustaci grab their shoes and jacket and scramble out of the house to have their photos taken. They are open, charming, talkative children. Also, in the boys’ case, wiggly. Every weekday morning, according to neighbors, a school bus picks them up, giving their mother a reprieve until late afternoon.

Patti Frustaci appeared on the “Donahue” television show in 1988 with a mother who conceived nine embryos at one time and chose to abort seven of them, winding up with two healthy babies.

Frustaci was asked if that wouldn’t have been a more “common-sense decision” for her to make too.

“You still have your conscience,” she replied in part, “and I have a very strong conscience. . . . And even though my children have died I believe in a life after death and I believe that I’ll see them in the next life. And I have the strong feeling that I gave them a body, I gave them the gift of life, and that they’ve gone on to a better place. . . .”

“You have to understand, I knew James for 16 days, I knew Bonnie for 19 days. That’s not a lot of time, but I knew their personalities and I can talk about my daughter Bonnie now like I know her.”