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Virginia Attorneys > Blog > Medical Malpractice > California Fertility Clinic Sued After Embryo Mix Up

California Fertility Clinic Sued After Embryo Mix Up


You’ve heard of Wife Swap, but what about embryo swap? While the former is an interesting idea for a reality television program, the latter is a major lawsuit in California. Plaintiffs allege that their embryos were mistakenly mixed up for another couple’s embryos and that each couple raised the other’s child over a few months before the mistake was caught.

In 2019, the plaintiff gave birth to a baby girl, but her husband noted something was wrong when the child came out looking like neither parent. Two months later, the couple ordered a DNA test which caught the mistake. After contacting the fertility clinic, the clinic arranged a meet between the two couples who eventually decided to switch babies. Now, both couples have the correct baby, but the plaintiffs are upset that the mistake was made. They are suing for breach of contract, medical malpractice, and negligent infliction of emotional distress.

Ok, a mistake was made, but what about damages? 

In most medical malpractice lawsuits, you have physical injuries that result from the malpractice. In this case, there are no physical injuries. This creates some problems under the law for the plaintiffs. It can be very difficult to recover damages related to nonphysical injuries in a personal injury lawsuit. Breach of contract claims require no such physical injury.

The parents are suing for their lost time with their baby, the fact that their family bonded with the wrong baby, and the knowledge that another family bonded with their baby. Further, the fact that the wrong fetus was implanted in her body is, in of itself, an injury. She did not consent to have someone else’s baby implanted in her body. So there will be ways that the plaintiffs can prove damages even though the clinic did not cause physical injury to either the children or their mothers.

Fertility clinic medical malpractice lawsuits 

Fertility clinics have a duty of care to ensure that their clients are receiving the industry standard for treatment. While many mistakes leave either the mother or the child with severe injuries, the law recognizes that some nonphysical injuries are compensable even when there is no co-occurring physical injury. In cases of embryo mix-ups, fertility clinics are required to make restitution to victims who have had the wrong baby implanted inside them. The general theory is that childbirth is supposed to be one of the peak moments of your life and to have it ruined by delivering someone else’s baby is a compensable loss. Further, the mistake should never happen. It’s a simple clerical error. The prevailing standard of care for the medical industry is to give couples their own embryos.

Talk to a Charlottesville, VA Medical Malpractice Lawyer 

The Charlottesville medical malpractice attorneys at MichieHamlett handle IVF and fertility clinic claims filed on behalf of parents. Call today to schedule a free consultation and we can discuss your options moving forward.



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