In a 107-page Memorandum Of Decision dated June 28, 2021, a Connecticut Superior Court Judge awarded a husband and wife over $37.6 million in their Connecticut medical malpractice case filed against the State of Connecticut for medical negligence and lack of informed consent involving CMV-infected donor sperm used during an intra uterine insemination procedure at the University of Connecticut Health Center’s Center for Advanced Reproductive Services performed on May 11, 2014, resulting in the death of one twin and the debilitating, life-long medical conditions suffered by the other twin.
The plaintiffs alleged that there was cytomegalovirus (CMV) in the donor sperm used during the intra uterine insemination (IUI) procedure that exposed both twins to CMV in utero. The defendant did not dispute that CMV is a sexually transmitted disease but alleged that it is only theoretically possible to transmit CMV during the IUI procedure. Although CMV is a common herpes virus that infects over 50% of the general population, it rarely causes serious injuries in adults but a fetus infected early in the pregnancy may result in profound, life-altering consequences.
It was undisputed among the parties that the wife was both IgM and IgG negative for CMV when she began the IUI program but that she became infected sometime during her pregnancy before delivery of her twins. The plaintiffs alleged that the infection was caused by the sperm sample of a CMV positive donor. The defendants argued that because the donor’s sperm was “washed” of seminal fluid and other matter more likely to carry viable virus, such as white blood cells, and because the sample is then frozen before implantation, the plaintiffs’ argument that the CMV infection was caused by the sperm sample was not supported by any reported case.
The judge stated that circumstantial evidence supported the conclusion that the wife’s initial CMV infection occurred at or about the time of the May 11, 2014 IUI procedure based on two Emergency Department visits four weeks later with symptoms consistent with an initial CMV infection, and based on the severity of the injuries suffered by the twins. The judge further stated that based upon the parties’ experts’ opinions, there is conflicting evidence of the scientific basis for concluding that washed sperm samples can be infected with CMV and, specifically, that spermatozoa can carry live, infectious virus (the donor’s sperm was not tested at the time of insemination).
The judge stated, “The court finds by a preponderance of the evidence presented in the record that a washed sperm sample from a CMV positive donor can be, more likely than not, the actual cause of a CMV infection in a CMV negative patient receiving the donor’s sample via an IUI procedure. The pervasive concern of the REI profession through testing and disclosure requirements, although characterized as theoretical, is supported by a scientifically factual foundation regarding causation. The primary scientific debate, at least as reflected in the expert testimony in this matter, is the pathology of fetal infections. There appears to be no doubt in the medical community that fetal infection occurs, in utero.”
“[T]he court finds that any suggestion of “community spread” under the facts of the case is purely speculative and is not based upon any direct or circumstantial evidence proffered. Instead, reliable evidence supports the conclusion that CMV, more likely than not, infects a fetus by either attaching to a sperm donor’s spermatozoa or is present in residual leukocytes and seminal fluid, present after washing and introduced during an IUI procedure. By that same evidentiary standard, the court further finds that the sperm sample from donor # 013673, more likely than not, caused the CMV infection in the plaintiffs, by either infecting Ms. Monroe-Lynch first, who transmitted the disease later to Shay and Joshua, or by infecting their oocytes directly, resulting in their subsequent illnesses. It is also more likely than not that the infection occurred in the first trimester, by either of these infectious paths, causing the death of Shay and congenital CMV in Joshua. The court therefore concludes by a preponderance of the evidence presented that donor sample # 013673, introduced by the defendant into Ms. Monroe-Lynch’s uterus during the IUI procedure on May 11, 2014, was the actual cause of the CMV infection contracted by the plaintiffs.”
The court also determined “that the defendant is liable to the plaintiffs for its failure to adequately inform Ms. and Mr. Monroe-Lynch of the risk associated with selecting a CMV positive donor and thereby obtain her appropriately knowledgeable consent.”
The court stated, “It is undisputed that Dr. Turner did not perform any serology tests, amniocentesis or any other follow up steps, including informing the patient of the finding of hyperechoic bowel and any of its implications or treatment options, all of which were required by the standard of care. For these reasons, the court finds that the defendant is liable to the plaintiffs for medical malpractice.”
The court awarded Mr. Lynch $2,000,000 for lost consortium with Joshua, $500,000 for lost consortium with Shay, equal amounts for Ms. Monroe-Lynch, $24,121.026.53 in total economic damages, and $13,500,000 in total noneconomic damages, for a total award of $37,621,026.53.
Monroe Lynch v. State of Connecticut, Superior Court J.D. of Hartford at Hartford, Docket No. HHD CV 16 6067438.
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