UCI Is Nearly Finished Settling Fertility Cases

UC Irvine has settled all but a handful of 113 lawsuits stemming from the fertility clinic scandal that rocked its medical center in 1995, agreeing so far to pay nearly $20 million to 107 infertile couples, including dozens who had their eggs stolen.

Regents of the University of California approved five settlements last month and are expected to accept four more at their meeting Thursday in Berkeley, according to lawyers and documents.

And while lawyers on both sides of the long-running legal disputes say the remaining six cases could be concluded by this fall, at least one attorney said such talk is premature.

“We offered to settle for a reasonable amount,” said Walter Koontz, a Newport Beach lawyer who represents Mary and Tom Gross, a Northern California couple who allege their eggs and embryos were stolen. But “they don’t want to pay the freight,” he said. “We are going to trial. They should figure that out.”

The egg scandal remains a landmark violation of medical ethics. University officials acknowledge that two UCI physicians lost or pirated eggs and embryos from scores of couples who went to one of their clinics to get pregnant. In some cases, eggs or embryos were given secretly to other patients or used for research. Some couples bore children conceived from the eggs of other women without the knowledge of the genetic parents.

At the time, some legal and medical authorities predicted huge jury awards against the doctors, the university and a private hospital where the doctors did some of their work. None of the cases, however, has gone to trial, and the two key physicians in the case, both indicted, have left the country.

Though the legal battle for the university could be winding down, for many of the couples there is no finality.

“We never could find out what happened to our embryos,” said Steve Laverson, who with his wife, Joanne, went to the clinic for help conceiving a child. They suspect at least one of their embryos was given to a woman from South America whom they saw several times at the clinic on the same days they were treated.

The regents last month approved a $150,000 settlement for the couple and will consider awarding $550,000 more to four other couples at a meeting this week. Awards in the cases have ranged from $5,000 to $695,000.

“All we got was a settlement,” said Laverson, a plastic surgeon who lives in San Diego County. “But what we wanted was the truth and accountability. . . . We have four embryos that are unaccounted for.”

The string of out-of-court settlements has a certain logic, according to lawyers and legal experts. Going to trial would be a big gamble both for the couples and the university because of the unprecedented legal issues and uncertain reception from juries and appellate courts.

“One jury could award zillions and another, who knows?” said USC law professor Mike Shapiro, an expert in bioethics and constitutional law.

Lawyers on both sides say they recognized that settling would provide significant benefits.

“The university saw early on it would be better to get these cases resolved,” said Melanie Blum, who represented about 60 clients. “It was front-page news for years and was damaging all around--to the university and to the patients.

“It made sense for both sides to come to the bargaining table. For plaintiffs to be able to move on is a huge part of the healing and recovery.”

University lawyers agreed.

“We began to understand more about the very heavy overlay of emotional distress,” said John Lundberg, UC deputy general counsel. “We decided that we needed to step up to the plate.”

The egg scandal grew out of activities at fertility clinics run principally by UCI doctors Ricardo H. Asch and Jose P. Balmaceda from 1986 to 1995 in Orange and San Diego counties. Some estimate that as many as 10,000 couples were treated at the clinics.

UC acknowledges that 46 eggs and two embryos were transferred without the donors’ consent, as well as a dozen births to couples using eggs pirated from their genetic parents, said Byron Beam, an Orange County attorney representing the university.

The real numbers are higher, Koontz and Blum said. The live births from pirated eggs alone are close to 50, Blum said, adding that many of those who had eggs stolen never looked into the records.

In addition to the UC cases, Blum has sued Cornell University Medical Center in New York City on behalf of a Southern California couple who conceived a child at a UCI clinic in 1991. Some of the couple’s remaining frozen embryos were shipped to Cornell, where they were used for research, the suit alleges.

Both sides in the UC cases agree that it may never be known exactly what happened in dozens of cases because clinic records were lost, stolen, are missing or remain in the hands of a federal grand jury that indicted the doctors.

About 50 of the cases were settled en masse in 1997, and 35 more were settled through mediation. The rest were concluded through individual negotiations, university attorney Beam said.

The negotiations often included apologies from UC officials made directly to the couples, Beam said.

“One of the things needed to be dealt with was that the women and sometimes the men were very angry, and somebody owed them an apology,” Beam said.

The settlement negotiations involved classifying the cases into one of 11 categories. The most severe classification was reserved for cases involving couples who were unable to conceive but whose stolen eggs yielded a live birth for someone else.

In the mid-range were couples who had eggs or embryos pirated but for whom there is no evidence of a live birth. At the lower end are malpractice claims or unaccounted-for eggs or embryos. The final category covered couples who sued after having a child from a stolen egg and then found themselves in legal battles with the genetic parents.

Counting the settlements the regents are expected to approve Thursday, UC will have settled cases worth $19.7 million, with the expectation of paying out perhaps another $1 million to $2 million for the remaining cases, Lundberg said. The average case has cost $184,000.

Tenet Health Care Corp., which bought AMI Garden Grove Hospital--where one of the clinics operated--is contributing $3 million to UC for its liability, with $2.5 million in additional payments pending arbitration.

Lawyers on both sides said legal ambiguities contributed to the push for settlements, which would keep the cases from being appealed for years.

One of the issues was whether the kind of injury or wrong suffered by the couples would be considered medical negligence and therefore subject to California’s $250,000 cap on emotional suffering for health care-related cases.

Koontz, Larry Eisenberg, a lawyer who has represented numerous couples, and others argued that the limits did not apply because the cases involved fraud, theft, battery and perhaps even racketeering to steal money and genetic material.

Also unknown was whether UC would be found liable for what the doctors did--including theft and fraud--if it was clearly outside the scope of their employment.

And how would a jury see the issue of damages?

“These are not cases where the patients are deformed or maimed, and they don’t limp,” UC’s Lundberg said. “What we are dealing with is emotional injuries for the most part, and we are also dealing with something that is highly personal and private.”

The couples largely appear whole, and many people, especially men, may be unsympathetic to claims of injury involving “the loss of a few eggs,” Blum agreed. Focus groups conducted by the plaintiffs concluded what the doctors did “was totally outside the bounds of reasonableness,” but there was little consensus on damages, Eisenberg said.

“The patients recognized that there was almost no precedent for the theft of human biological tissue and what damages would be awarded,” he said.

Entering into a settlement provided certainty and to some degree closure, several lawyers said.

“If I were their counsel, I would have to tell them there is no way to predict what a jury would do,” USC’s Shapiro said. “This is not like having your baby kidnapped in the hospital. Even in those cases it is difficult to assess damages.”

Regardless, the “misfeasance of the doctors is what grates here,” he said. “Those physicians were not supposed to do this. . . . It is a violation and an assault on these women’s personhood.”

For the plaintiffs, that is what remains.

“The thing has been quite an ordeal for us,” said Laverson, who with his wife recently adopted a child. “When you are dealing with people’s hopes and dreams about having a child, you would think they would have been more ethical. We are betrayed. . . . We have to move on. We can’t be vindictive.”