Fertility Clinic Makes Expecting Mother an Accidental Surrogate

Couples all over the nation find that they are unable to conceive naturally and must turn to fertility clinics for help. No couple expects that when they learn they are going to have a child, it’s not going to be their own! This was the sad reality for Carolyn and Sean Savage of Sylvania, OH, as reported by the New York Post.

After many miscarriages and heartbreaks, the Savage’s finally turned to in-vitro fertilization in 2009. Carolyn soon learned that the process had worked, but was told that it would be her last pregnancy due to prior complications.

Nearly 100 miles away, Shannon and Paul Morell of Troy, MI were also employing in-vitro fertilization as a means of adding an addition to their family. They would soon receive the devestating news that their embryo’s had successfully been implanted… but within Carolyn Savage.

…they got an urgent call from their fertility doctor.

“Yes.”

“I’m so sorry, Shannon, but there’s been a terrible incident in our lab,” he said. “Your embryos have thawed.”

But it didn’t end there.

“Your embryos were transferred to another woman,” the doctor said.

Shannon was stunned. “Is she pregnant?” she managed.

“Yes.”

Shannon, whose maiden name was Savage, had lost her embryos to Carolyn and Sean Savage. The lab accidentily filed the Morell’s embryo’s in Shannon’s maiden name, and provided them to another couple.  Carolyn Savage had been robbed of the chance to ever carry her own child again.

Having also been informed of the mix up, Carolyn Savage was presented with two options: she could terminate the pregnancy or carry the child to term and give it to it’s biological parents after the birth. Due to strong religious beliefs, Carolyn decided to carry the baby to term and return it to it’s parents afterward.

The Morell’s and the Savage’s agreed to a formal meeting April 27, two months into the pregnancy. Carolyn and Shannon agreed to remain in contact throughout the pregnancy and decided upon the name, Logan, once the baby boy’s gender was confirmed.

On September 24, 2009, baby Logan Savage Morell was born at Mercy St. Vincent Medical Center in Toledo. Shannon and Paul drove to the hospital immediately after hearing that Carolyn was in labor, still saddened that another woman was giving birth to their baby boy.

“I wouldn’t say jealousy, but there was sadness that I couldn’t be there for my son and experience the first moments of his birth. And there was guilt that another woman was happy to go through a C-section for me,” Shannon said.

The arrival of baby Logan presented many emotions for both the Savage and the Morell families. The Savage’s made it clear early in the pregnancy that they expected nothing more than a few updates throughout Logan’s life.

“Of course, we will wonder about this child every day for the rest of our lives, and we have high hopes for him,” Carolyn said. “But they’re his parents, and we’ll defer to their judgment on when or if they tell him what happened and any contact that’s afforded us.”

CNN interviewed both Carolyn and Sean Savage; the couple revealed their feelings regarding the entire experience.

Since Logan’s birth, the families have remained in contact. Over Christmas, the Morell’s and baby Logan made the 100 mile journey to visit the Savage’s so that baby Logan could finally be introduced to his surrogate family.

Shannon Morell acknowledges that the Savage’s will always have a role in Logan’s life.

“I think for the rest of his life, he should always acknowledge [Carolyn], on Valentine’s Day, Mother’s Day. He should always think of her because if she hadn’t done the right thing, he wouldn’t be on this earth,” Shannon said.

The couples hope to one day be able to explain the complicated story of how Logan came into his wonderful existence.

So what happens now? The Savages’ still have five frozen embryos; unfortunately, Carolyn will be unable to carry another child. The couple is looking into a gestational carrier in hopes to still make an addition to the family.

In-vitro fertilization has led to over 40,000 successful live births since it’s first record of success in 1978. When learning of success, can you even imagine the emotional effects of being told that your success will result int he birth of someone else’s child? What further actions can be taken to prevent these ghastly mix ups?

Confidential Settlement Agreements: Which should win – privacy or right-to-know?

Understanding the term – ‘confidential settlement agreement’ – is the easy part. What’s the ‘sticky wicket’ of this ever-growing form of  settlement agreement? – the conflicting interests of the parties’ privacy concerns versus the public’s right to know.

Let’s start by providing you with the somewhat typical, generic language used (in some form or other) of such provisions in a settlement agreement:

Confidentiality:  The Releasing Party (Releasor) agrees that neither he nor his attorneys shall reveal to anyone, without prior written consent of the Party Being Released (Releasees), the facts or any of the terms of this Settlement and Release Agreement. Releasor will not disclose the identities of the Releasees, whose conduct was the subject of this lawsuit.  It is further understood and agreed to by the parties to this Settlement and Release Agreement that no part of this non-disclosure agreement shall be construed to prohibit counsel from making reasonable and necessary disclosures to carry out the administrative and ministerial tasks incident to this settlement.

Needless to say, these can be quite specific and many times are aimed at prohibitions of disclosure of not only the fact of settlement but also any specificity regarding the identity of the settling party and the amount of the settlement – basically prohibitions against disclosing any identifying information to the public and even more specifically to any form of media outlet. It’s one thing for Client Jones to tell his neighbors that he just settled his lawsuit for thousands or millions of dollars; it’s quite another when a settling doctor or hospital sees their name splashed across the print or online headlines of local media outlets.

The Settling Defendant’s Interests:

This is perhaps the easiest  to understand from the viewpoint of the person who agrees to pay settlement monies to the plaintiff who sued them. In the context of medical malpractice cases, no health care provider, especially a physician, wants their good-name/reputation tarnished by news of having settled a malpractice case. Since the reasons for agreeing to a settlement might be avoidance of a verdict  in excess of  the physician’s malpractice insurance, it could be argued that in such instances it is simply not fair to broadcast the fact that the physician settled because they knew they had done something wrong which hurt one of their patients. Keep in mind, that in settlement agreements there is usually a statement that the settling party – e.g. the physician sued for medical malpractice – denies all allegations of wrongdoing.

That being said, what about those instances – which are not the minority in our case load – in which the conduct of the health care provider does constitute a violation of the standard of care – aka medical malpractice/negligence? Why shouldn’t the public be aware that Dr. Smith did render bad care that caused serious harm? Was this just a ‘bad day’ for Dr. Smith in the operating room or  office or a pattern of poor care? Doesn’t the public have a right to know this?

Dr. Smith’s counsel will argue, as trained to do, that there is a defense to every case. In my 35 years of experience, this is often the case. Some defenses are better than others; some are flat out lame. Can’t the public decide on their own? Don’t they have a right to make that judgment? Some would argue they don’t since they don’t possess the expertise to understand the many nuances that go into these settlement decisions. Are they right? It seems you will never get the chance to decide since you will never know about what happened due  to confidentiality agreements.

The Plaintiff-Patient’s Interests:

It is unfortunately the case that when a number of our client’s wins a large amount of  cash in settlement or verdict, they fear their past and present friends and relatives will then come out of the woodwork. I liken it to professional sports figures whose coterie of friends are at  best ‘hangers-on’ for the money and good times.

People who have had to relive tragedies in their lives don’t want the pubic to know for a multitude of reasons.  We have represented people whose parents didn’t even know (and to this day don’t know) that they had been in a lawsuit and even gone through a trial! We have always respected the client’s right to privacy. Does that trump the public’s right to be informed?

The Plaintiff Lawyer’s Interest:

What interest could the lawyer possibly have? – you ask. Since this is my bailiwick, permit me to answer the question – marketing. Have you had occasion to visit the websites or print media advertisements of any plaintiff lawyers recently. If you have, I suspect you have seen the crawl or large font posting of verdicts and settlements blasted across the screen/page. If you have a confidentiality provision, this probably should not be the situation. I say probably because some lawyers insist that the right to publicize ‘anonymously’ be  crafted into the confidentiality agreement. Many likely do not have this ‘exception’ language but seem to have amnesia when it comes to this provision.

If you look at our website, you won’t see this form of advertising/marketing. Does this mean we haven’t settled a number of cases for large amounts of money for our clients? Hardly. Since the beginning of this year alone, we have settled a number of cases for millions of dollars, with the likelihood of many more  to come – God willing! We have elected to respect our client’s  right to privacy on the one hand. We have also determined that in some instances there will be no settlement if we put our firm’s interests of marketing ahead of the client’s ability to obtain a settlement, when the defendant is demanding confidentiality.

Do we have news accounts of past verdicts on our website? We do. Those cases went to trial and were deemed newsworthy enough by local media to report on the verdicts regardless of our position on marketing. They were in the public domain; we took the marketing advantage. Hey, we’re just being lawyers. Have these cases gone to appeal or settled post-verdict? You’ll never know.

Have we settled cases for millions of dollars?  Well, you’ll never know that either. We do understand our client’s rights to privacy and right to  have their interests in obtaining a settlement ahead of our marketing interests.

So what is the answer?:

From the viewpoint of the advocates of the public’s right to know, they can effectively argue in most instances that the client doesn’t have a privacy right once a lawsuit is filed. This is a matter of pubic record. Anyone can go to the courthouse in your county or state (in the case of the District of Columbia – the Superior Court) and ask to see the court files – absent an order sealing a record, which is by far the exception rather than the rule. Even in situations where a case settles under a confidentiality agreement, if one looks at the court docket of any given case, you can trace the history of a lawsuit. When you see a dismissal, do you not understand that absent the case being dismissed in favor of a defendant on motion or by court order for failure to prosecute, the case most likely settled? What happened to the non-disclosure of the fact of settlement or the likely parties to the settlement?

Are there other means to determine if a medical malpractice case has settled? If so, for how much? Well there are and there are not. Were you aware that whenever a doctor settles a lawsuit he/she is reported to the National Practitioners Data Bank? Well, all the information one could ever want is stored there, but the public has no access to this data bank – at least in terms of getting information as to a specific healthcare provider. The following is the express statement on the NPDB’s FAQ page:

The Data Banks are prohibited by law from disclosing information on a specific practitioner, provider, or supplier to the general public. However, persons or organizations may request information in a form that does not identify any particular healthcare organization or practitioner for research purposes.

Well, there goes that potential source of right to know.

What about the local state licensing agencies?  Let’s take Maryland, for example. The entity that controls the licensing and disciplining of physicians in the state is known as the Maryland Board of Physicians. It also has a website, which, quite  frankly, is much more transparent and informative than many and certainly more informative than the NPDB. By going to the “Search Practitioner Profile” link, you can type in a doctor’s name and find out, among other things, if there has been any disciplinary action against that physician for the past ten years. Maryland should be applauded, in fact, for its access to information on physicians. Could it do more, perhaps. That’s for another day.

In the District of Columbia, did you know you can access similar information? I invite you to undertake this exercise. Don’t be thrown-off when you do your Google, MSN or other search engine inquiry and see the District of Columbia Board of Medicine, but then you find you have been linked to the California Department of Consumer Affairs – for the Physical Therapy Board of California. Must just be a broken link! Transparency may also have a different definition in D.C.

In many of our posts we urge our readers to be informed consumers when it comes to their healthcare. Is one of the ways to become educated about your doctor or the hospital to which you planned to be admitted the  ‘best’ or ‘right’ healthcare provider for you to do such a search? We think so – at least in part. Being sued or even settling a case does not necessarily mean a physician or hospital is a bad doctor or a bad hospital. It may, however, particularly in the case of the physician, be a place you may care to start your query.

So, what is the public’s right to know in terms of confidential settlement agreements? Does the public’s (i.e. your) right to know trump that of the patient/plaintiff or the healthcare provider/defendant? Should there be a restriction on the use of these agreements – even if that also means a prohibition on the lawyer’s right to publish these settlements on their websites or ads?

I encourage and welcome your thoughts and comments. Please take a moment of your time and share these with our community of readers.

Family Feud – Where’s Your Sense of Humor?

Everyone has, at one time or another, been offended by a relative’s hurtful comments. In the case of Sunda Croonquist’s family, however, the offended relatives were not content to let the offending comments pass without notice.  As reported by ABA Journal and other outlets, the family members actually sued her. Turns out that Ms. Croonquist is a comedienne, who takes advantage of her mixed ethnicity – she is half-black and half-Swedish and is married to a Jewish man – to poke fun at her family. Apparently, the family was not laughing, especially when Ms. Croonquist publicly joked that some of them were racist. Several of Ms. Croonquist’s in-laws, including her mother-in-law, filed suit in New Jersey alleging, among other counts, defamation and infliction of emotional distress.

Ms. Croonquist, however, got the last laugh. After Ms. Croonquist’s lawyers filed a motion to dismiss (to add to the familial complexity, Ms. Croonquist was represented by her husband’s law firm), the trial court ruled that Ms. Croonquist’s comments, while perhaps hurtful, were protected by the First Amendment because they were merely her personal opinions. In order to prove a case of defamation, one has to prove that the speaker made a false statement. An opinion, being a subjective belief of the speaker, cannot be considered true or false, so it cannot support a claim for defamation. So Ms. Croonquist is free to continue insulting her relatives, and comedians around the country can continue making mother-in-law jokes.

No word yet on when the next family reunion is going to be held.

Who’s Who: Lawyers spot Justin Bieber on Flight But Don’t Recognize Justice Stevens

No one goes into the law to get famous. Obviously!

As we hear today the announcement of President Obama’s pick of Elena Kagan to replace retiring Justice John Paul Stevens, here is a little story about the nature of fame.

The ABA Journal reports that a husband and wife boarded a flight recently out of Reagan National Airport in D.C. heading back home to Chicago. As the couple walked through the first-class cabin toward their seats, they were surprised to see sitting there a familiar face – teen pop sensation, Justin Bieber. In their excitement over seeing a real live pop star in their midst, the couple failed to notice an older gentleman, who was also sitting in first class, wearing a bow tie and quietly minding his own business. It was none other than Justice Stevens. When the identity of the prominent gentleman was made known to the couple, they were chagrined. Why? “We’re both attorneys,” the husband conceded.

Maybe it’s time we start putting cameras in the Supreme Court or teach the Justices about social media with a profile picture for all to see on a daily basis.

I’d follow and ‘like’ them.

Oh yeah, Mr. and Mrs. Lawyer, this is Justice Stevens.

Another Child Dies. Will DC EMS Improve Now?

We reported back in mid-March on our blog site on the issues surrounding an investigation of the District of Columbia’s Emergency Medical Services. Since then, DC EMS has represented that they have made positive changes to their department.  In a headline article posted on MSNBC.com at the end of this past week, D.C. Fire and Emergency Medical Services Chief, Dennis L. Rubin, represented positive changes are being made:

Rubin said he is working to drive home a key point: providers never decline transport.

His staff is developing a “patient’s bill of rights” to be posted in every ambulance and producing a new  training video underscoring that message. In addition, the policy has been expanded to cover instances in which a patient refuses to be transported, including the requirement that responders get an OK from a supervisor and have a witness, such as a police officer, confirm the patient’s decision.

We certainly hope this is the case.  Our prior post cited a troubling report from April 2009, wherein it was found that there were serious training and performance issues relating to DC EMS.  The article posted at the end of  this past week also details another tragic event that unfolded after the report in April 2009:

Stephanie Stephens died after paramedics refused to take her to the hospital Feb. 10 in the first of two visits to her home after she experienced breathing problems. Her death has prompted a rare criminal investigation and raised questions about ambulance policies in Washington and emergency care for children nationwide.

After the paramedics recommended she be taken into a bathroom to inhale steam from a running shower, Stephanie’s family called back hours later and an EMS crew took her to a hospital. The child died from pneumonia the next day.

Anyone have issue with this?  How many tragedies must we endure before there is ZERO TOLERANCE for such costly delays?!  The citizens and guests of DC are dependent upon DC EMS to provide assistance immediately; not to give bad medical advice, try to play doctor, or decide that they will just simply not transport someone.  Read the report from last year cited above, along with the relevant articles.  Then, you decide.  I wonder what Stephanie’s family thinks…

Time nearly up on malpractice suit against missing doctor -Texas style

In an article recently published online through the Austin-American Statesman website, one of the many harsh realities of our legal system is exposed.  The significance of procedural deadlines, and what may ultimately happen if such a deadline is not met (despite best efforts) is highlighted in this tragic story.  The following is a very brief summary, as taken from the article:

Debbie Stockton didn’t know her obstetrician was a drug addict when her son William was born in 1989 with extensive nerve damage to his left arm.

But when the boy grew into a teenager and his atrophied arm didn’t improve, Stockton sought legal advice and learned that Dr. Howard Offenbach had checked himself into a drug treatment center within a week of William’s birth to kick a years-long Valium and hydrocodone habit.

So in 2007, Stockton sued for an unspecified amount, claiming that Offenbach caused William’s injury by failing to order emergency surgery when the boy’s shoulder became pinned beneath his mother’s pubic bone during a difficult delivery.    

The Stocktons, however, ran into a legal roadblock that derailed their lawsuit before it went to trial.

Texas malpractice law gave them 120 days after filing suit to serve Offenbach with their medical expert’s report and résumé, but Offenbach couldn’t be found. After losing his medical license in 2000 for drug abuse, Offenbach had moved from his Dallas house, been evicted from two apartments and disappeared from public records.

Even Offenbach’s lawyers — acting on behalf of the former doctor’s insurance company — have been unable to locate their client and say that Offenbach is “not findable.” Still, they asked the trial court to throw out the Stocktons’ lawsuit for blowing the 120-day deadline.

The case has traveled its way up through the Texas court system over the past several years, before ending up at oral argument last week before the Texas Supreme Court.  The article also details the extent to which the Stocktons’ lawyer went to attempt to serve Dr. Offenbach with the lawsuit.

Sadly, Debbie Stockton passed away last fall from cancer.  The injured victim, William Stockton, is fighting for his cause, as the case has been continued under his name.  The Court now has the case under review.  We do not know what the Court will hold.  The article leaves us with this:

Justice Dale Wainwright mused aloud about the court’s dilemma.

The language of the law clearly directs judges to dismiss any lawsuit that exceeds the 120-day deadline, he noted: “On one hand, we don’t want defendants dodging or hiding to let the 120 days lapse. On the other hand, we don’t want claimants to be lax in any way when the Legislature used this kind of strict rule.”

Ga. Supreme Court Upholds Key Medical Malpractice Law Requiring Proof of Gross Negligence for Emergency Room Physicians

Another legal ruling in the ongoing debate over tort reform – this one from the State of Georgia. MSNBC is reporting (citing Associated Press) that the Georgia Supreme Court, in a divided 4-3 opinion, has upheld a 2005 state law that requires patients to prove “gross negligence,” rather than ordinary negligence, in order to prevail in a medical malpractice case against emergency room physicians.

A Georgia woman, who suffered a stroke after receiving allegedly negligent treatment at an emergency room, challenged the constitutionality of the 2005 law, claiming that it created an insurmountable hurdle at trial.  The Georgia Supreme Court disagreed.

The court’s majority opinion, penned by Justice George Carley, found that it was “entirely logical” for lawmakers to approve the legislation in hopes of stemming the rising cost of medical malpractice insurance.

Usually, the focus of tort reform legislation has been in either instituting a cap on damages, or restricting attorneys’ fees, or both. In 2005, however, the Georgia legislature implemented an additional mechanism that was designed not to limit the amount of recovery in successful lawsuits but was instead specifically designed to make it more difficult for injured patients to prove their case at trial.

Prior to the law enacted in 2005, in order for a patient to prevail in a medical malpractice action, the patient had to be able to prove that the defendant doctor was negligent – i.e. violated the standard of care, which has usually been held to mean that the doctor failed to do what a reasonably competent doctor would have done in the same or similar circumstances. Under the new law in 2005, however, patients were required to prove that the defendant doctor (at least in the emergency room setting) committed “gross negligence,” which is a much higher level of negligence, generally defined as near-total disregard for the rights of others, reckless disregard, or willful or wanton indifference to the consequences of one’s actions.

Clearly, forcing patients to meet this higher burden will make it more difficult for injured patients to sue emergency room physicians, which was the very intent of the Georgia legislature. The ruling also means that negligent doctors who would have been found liable under traditional law will now get off scot-free, leaving injured patients with no recovery.

The same court is expected to rule later this month on the constitutionality of Georgia’s cap of $350,000 on damages for pain and suffering.

Appeals Court: Ex-Prosecutor Can’t Be Sued Over His Work on Terror Case – News – ABA Journal

From the ABA Journal comes a report (Appeals Court: Ex-Prosecutor Can’t Be Sued Over His Work on Terror Case – News – ABA Journal) about a ruling from the Sixth Circuit Court of Appeals affirming in part (the dismissal) and reversing in part (the denial of a dismissal) rulings by the lower court in a civil action brought by a previously charged criminal defendant against a former prosecutor for allegedly failing to disclose exculpatory (Brady) information.

This decision (provided in full by the court) is a fascinating and informative analysis of the law of immunity for federal prosecutors from such actions (a Bivens-type claim).  While the full facts and findings of the court are too long to report here, I commend to your reading the full decision of the court.

Here are some of the essential allegations of the civil complaint:

On August 30, 2007, Koubriti filed the present action. In his complaint–which named Convertino, Thomas, and Ray Smith8 as co-defendants–Koubriti seeks relief pursuant to the Fifth Amendment and Bivens v. Six Unknown Named Agents of theFederal Bureau of Narcotics, 403 U.S. 388 (1971).  Koubriti requested $9,000,000 in compensatory damages plus punitive damages arguing that: Defendants violated his Fifth Amendment Rights by maliciously and intentionally withholding exculpatory evidence and fabricating evidence contrary to Brady v. Maryland, 373 U.S. 83, 87 (1963), prior to and during his prosecution for the offense of conspiracy to provide materials for or resources to terrorists contrary to 18 U.S.C. §§ 371 and 2339(e). The complaint then sets out the following claims with respect to Convertino’s liability:

Defendant Convertino while acting in an investigative type role withheld exculpatory evidence or fabricated evidence in the Plaintiff’s criminal case by:

• Failing to turn over photographs of the Queen Alia Hospital or ordering that they not be turned over to the Defendant or presented to the Grand Jury;
• Failing to disclose that none of the Defendants could establish which site or sites the sketches established (if either) after their respective trips to Jordan;
• Ordering or directing Defendant Thomas not to memorialize any of the ten to twenty interviews of Yousif Hnimssa [sic] prior to the Second Superseding Indictment being issued;
• Failing to disclose the Opinion of Air Force OSISA Goodnight to the Grand Jury or Plaintiff concerning the alleged Incirlik Air Base sketches.

While the details can be a bit confusing without reading the entire opinion, suffice it to say (for the sake of brevity), this civil action was brought to seek redress for the prosecutor’s actions, which led to his government employment termination, criminal charges against him ( he was acquitted) and a bar investigation (which did not lead to any licensing charges).

If you are considering bringing (either as a plaintiff or an attorney) such a lawsuit for non-disclosure of Brady materials, you would be well advised to read this decision and the cases cited in it – first.

Choosing a Lawyer – A How-To Guide

One of the most important things you can do if you are considering a lawsuit is to spend time doing a proper search for the lawyer, who will be handling your case.

Just because a law firm or a lawyer has a fancy webpage or an eye-catching ad in your local phone directory or even a professional looking TV commercial does not mean that this lawyer has a clue what he/she is doing in the specialized areas of medical malpractice or catastrophic personal injury.

We invite you to read and consider the issues and questions raised in our White Paper – “How to Choose a Lawyer.”

If you have other ideas or questions that you believe would be helpful to our readers in their search for a lawyer, post your reply on this topic so others may benefit by your insights.