UC Irvine Won’t Defend Doctors in Embryo Suit

UC officials announced Thursday that they will not pay to defend doctors at the UC Irvine fertility clinic in a lawsuit by a Corona couple who allege their embryos were stolen--signaling the doctors could be on their own as civil litigation mounts against them.

Each of the 17 legal claims filed against the doctors and UCI will be evaluated individually, but the pattern of refusing to defend the physicians might continue in other cases, UCI Chancellor Laurel L. Wilkening said Thursday during a briefing on the university’s handling of the crisis.

“Basically, this is because of our belief that the doctors acted outside the scope of their employment,” Wilkening said, explaining why the university is deviating from the practice of defending employees in job-related legal disputes.

Alleged fraud by the doctors and their refusal to turn over patient records also are grounds not to defend them, UC officials said.

“I have never encountered such depraved behavior on the part of faculty members in my entire life,” the chancellor added in her most emotional condemnation of doctors at the Center for Reproductive Health to date. She said she still finds the human egg allegations “unbelievable.”

Drs. Ricardo H. Asch, Jose P. Balmaceda and Sergio C. Stone are accused of human egg misappropriation involving up to 35 patients at UCI and an affiliated clinic in Garden Grove.

The university is refusing to defend the doctors in a lawsuit by John and Debbie Challender, who accused the trio of implanting their embryos into another woman who gave birth to twins.

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All three physicians deny knowingly engaging in any wrongdoing and blame UCI staff members for any problems. Attorneys for Asch and Stone said Thursday that the university is contractually and legally obligated to defend the doctors and vowed to fight the university’s decision in court, if need be. Patrick Moore, Balmaceda’s attorney, could not be reached.

“The university . . . is using a contrived reason to avoid their legal responsibility,” said Ken Steelman, Asch’s civil attorney. “They’re not going to prevail either in their contrived media campaign or in their legal position.”

Criticized early in the scandal for ducking public inquiries, Wilkening made an effort Thursday to be more forthcoming, delivering an elaborate update on the 3-month-old controversy complete with overhead slides and chronologies. In several instances, she acknowledged that university administrators were overwhelmed by events and made mistakes along the way.

But UCI may be turning a corner in the crisis, with the worst of the allegations out in the open, Wilkening said.

“There could be more locations around the world [where there were problems]; there could be more cases, more patients, that are discovered. But I think we have a pretty complete picture of what it was that these guys were doing.”

The chancellor said she learned that from her experience during another university probe that “You know you’ve got the whole picture when you keep running into yourself--when you start hearing the same allegations over again when you’re talking to different people, [and] the same things start coming up. And that’s kind of where we are now.”

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In other comments designed to fill in the information gaps on the crisis or set the record straight, Wilkening said:

* Termination proceedings against the tenured doctors, Asch and Stone, probably will begin in September and are expected to last at least a year. During that time, Asch will be paid an annual salary of $120,900 and Stone $93,500. It is standard procedure for faculty to receive their salaries during disciplinary proceedings, Wilkening said.

The UC Regents ultimately must approve dismissal of any tenured faculty members. Balmaceda, a professor in residence, was given a year’s notice in June that his appointment will not be renewed. He will be paid an annual salary of $80,300 in the interim, UCI officials said Thursday. Balmaceda is entitled to appeal his termination.

* Earlier explanations by university officials of when the human egg allegations came to their attention were mistaken.

Wilkening said she erroneously said in a July interview with The Times that she did not know of the egg misuse allegations until July, 1994. She confirmed Thursday that she had become aware of the allegations two months earlier. She said she had not checked her calendar before the interview, and is not good at recalling dates from memory.

“We have endeavored to be truthful,” Wilkening said. “We’re human beings and sometimes we make mistakes.”

* The initial major clinical concern about the doctors was Asch’s alleged use of a fertility drug unapproved by the U.S. government, not human egg or embryo misuse.

Wilkening said that she found the allegations of human egg misuse so outrageous when she initially heard them that she did not believe them until a clinical panel report confirmed at least two cases in May, 1995.

“Almost everyone that I have talked to who has been involved in this in an investigative role had a similar reaction,” Wilkening said. “It was unbelievable. It was unbelievable to the clinical panel members when they started this that a physician or physicians who were experts in this field . . . would do something so contrary to professional ethics. . . . I still find it, to me, unbelievable.”

Wilkening said her concern over Asch’s alleged use of HMG Massone, an unauthorized fertility drug, were the driving force behind the early inquiries into clinical wrongdoing. She said it constituted “very unprofessional, unethical behavior.”

Asch has said he prescribed the drug to only two indigent patients to spare them the expense of an approved American equivalent.

* University officials agonized over the best way to inform patients of the alleged egg misuse, slowing the initial notification process.

“We did internally enter a pretty extensive--perhaps too extended--ethical debate about how to handle this, what process to set up and so forth,” Wilkening said.

UCI learned from the clinical panel that two cases of egg misuse were confirmed in March and began notifying patients two months later. UC Irvine College of Medicine Dean Thomas Cesario said the decision to go forward was not an easy one, because it is unwise to worry patients with vague or unproven allegations.

Times staff writer Michael Granberry contributed to this report.

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Fertility Timeline

Several investigative bodies have probed allegations against UCI’s fertility clinic. Who and when different panels began their own inquiries:

Investigations, 1994:

March: First whistle-blower allegations

Early March-early October: Internal audit

Late August-ongoing: Medical staff review

Nov.1-ongoing: Clinical panel of three UC physicians

Early October-late May, 1995: Audit and Human Resources panel

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Investigations, 1995:

Mid-January-ongoing: Research Department Inquiry #1

Late March-ongoing: Research Department Inquiry #2

Source: UC Irvine