Background
Jean-Marie and Aaron are a married couple who wanted to have children but were unable to conceive without medical assistance. In the summer of 2013, the couple sought therapeutic donor insemination (TDI) services at the Center
for Advanced Reproductive Services (CARS) at the University of Connecticut Health Center (UConn). Prior to their initial visit, CARS sent them a TDI patient information packet, which included general information about TDI risks and CARS approved sperm banks. The packet also included information about testing that TDI patients are required to undergo, including testing for cytomegalovirus (CMV), a type of herpes virus that has infected considerably more than 50 percent of the general population.
A blood test can reveal whether an individual has ever been infected with CMV. The presence of immunoglobulin M (IgM) antibodies is associated with an initial CMV infection. Generally, IgM antibodies remain in the blood for approximately six to nine months after infection, decreasing over time until they are no longer detectable. As the IgM antibodies decrease, they are replaced by immunoglobulin G (IgG) antibodies, which typically increase over time and stay in the body for the remainder of the person’s life. A person who tests positive for IgG antibodies will not be continuously infectious but nonetheless will periodically shed ‘‘live,’’ infectious virus through bodily fluids, including urine and seminal fluid. For most adults, symptoms of a CMV infection are mild. An initial infection during early pregnancy, however, can result in profound health complications for the developing fetus.
In light of the risks to fetal health associated with a mother’s initial exposure to CMV in early pregnancy, it is necessary for those providing TDI services to determine whether both the patient and the prospective sperm donor have ever been infected with CMV. Although semen collected at sperm banks is subjected to a process known as ‘‘washing’’ to remove CMV and other pathogens, there is no way of ensuring that all infectious agents, including CMV, are completely removed from the sperm and will not be introduced during a TDI procedure. The patient information packet that CARS sent to Jean-Marie stated that, ‘‘[i]f you have never been exposed to CMV, your test will come back negative, and then, you may only choose a CMV negative donor.’’ This restriction accords with the guidelines of the American Society for Reproductive Medicine (ASRM), the leading professional organization in reproductive medicine, which recommends that CMV positive donor sperm be used only for patients who are also CMV positive. Federal regulations require sperm banks to notify fertility clinics of a sperm donor’s CMV status with each sperm shipment. 21 C.F.R. § 1271.370 (2022).
At the commencement of her TDI treatment, in September, 2013, Jean-Marie tested negative for both IgM and IgG antibodies. On May 11, 2014, Jean-Marie underwent a successful intrauterine insemination (IUI) procedure using sperm from CMV positive donor No. 013673 and became pregnant with twins. Claudio Benadiva, the physician who performed the IUI procedure on Jean-Marie, did not check the CMV status of donor No. 013673 prior to using the sperm. As a result, Benadiva was unaware that he was inseminating a CMV negative patient with sperm from a CMV positive donor. Because he was unaware, he did not seek or obtain Jean-Marie’s informed consent for the procedure.
In October, 2014, when she was twenty-two weeks pregnant, Jean-Marie underwent an ultrasound that revealed that the twins both had small heads and hyperechoic bowels—conditions associated with an in utero CMV infection. Notwithstanding these ultrasound findings and in violation of the standard of care, Jean-Marie’s maternal fetal medicine physician, Garry Turner, did not perform any serology tests, amniocentesis, or other follow-up steps to rule out a CMV infection; nor did he inform Jean-Marie about these findings. Compounding these errors, a copy of the abnormal ultrasound result was not included in Jean-Marie’s medical record, which led to an additional failure to diagnose her and the twins with CMV.
In January, 2015, Jean-Marie, who was then thirty seven weeks pregnant, went to UConn for a regularly scheduled nonstress test. During the visit, she was informed that one of the twins, Shay, had died in utero. A cesarean section was immediately performed to deliver both twins. At the time of delivery, Jean-Marie had an IgM antibody level of 51.5, which is consistent with a current or recent CMV infection. Shay’s autopsy revealed that she had died from a severe CMV infection. Joshua was born with severe health complications as a result of his own congenital CMV. Specifically, Joshua is unable to eat, communicate, or attend to any of his personal needs in a normal or independent manner. For
the rest of his life, he will have to be fed through a gastrostomy tube. In addition, he suffers from global developmental delay and cognitive, hearing, and motor deficits, including related diagnoses of epilepsy, autism, and cerebral palsy. Joshua will require constant services and care for the remainder of his life, including physical and occupational therapies and a home health aide.
Pursuant to General Statutes (Rev. to 2015) § 4-160 (b), Jean-Marie and Aaron sought permission from the Claims Commissioner to sue the state for medical malpractice, both individually and in their representative capacities as Joshua’s parents and as the administrators of Shay’s estate. Their notice of claim stated that the injuries arose out of the fertility treatments and prenatal care Jean-Marie had received from UConn medical providers. A physician’s statement was included with the notice of claim, describing the physician’s reasons for concluding that the standard of care relating to the plaintiffs’ fertility treatment claims had been breached. After reviewing the plaintiffs’ claims, the Claims Commissioner found that the requirements of § 4-160 (b) had been met and granted the plaintiffs’ request for permission to sue the state for medical malpractice.
The plaintiffs subsequently commenced their Connecticut medical malpractice lawsuit. The case proceeded to a bench trial before the trial court, which found in favor of the plaintiffs on thirteen counts and awarded them
$36,621,026.53 in economic and noneconomic damages. That sum was later reduced to $34,619,799.22 following
a collateral source reduction hearing. The State of Connecticut appealed.
The Connecticut Supreme Court held in its February 6, 2024 Opinion: “We begin with the state’s argument that the judgment should be set aside with respect to the plaintiffs’ fertility treatment claims on the basis that those claims were barred by sovereign immunity because the theory on which they were upheld by the trial court sounded exclusively in informed consent, not medical malpractice. We disagree.” The Connecticut Supreme Court explained: “It was precisely because there was testimony that insemination of a CMV negative patient with sperm from a CMV positive donor deviated from the standard of care in the absence of informed consent that the trial court concluded that the fertility treatment claims were medical malpractice claims and, therefore, within the scope of the Claims Commissioner’s waiver of sovereign immunity.”
The Connecticut Supreme Court further held: “We conclude that Joshua’s claims, which arise in the context of innovative assisted reproductive technologies, are properly understood and adjudicated within the context of conventional medical malpractice claims. Established principles underlying the common law of negligence are sufficiently adaptable to provide a remedy for injuries such as those sustained by Joshua, without disturbing the fundamental rules governing tort liability and compensation,” truning away the defendant’s argument that Joshua’s claim was for “wrongful life” (“the state is directly responsible both for Joshua’s birth and for his condition; CARS staff created the pregnancy, and it was precisely their negligence in doing so that was the proximate cause of Joshua’s injuries … in most wrongful life cases, but for the defendants’ negligence, there never could have been a healthy child … the most prudent course is to evaluate the claims as articulated by the plaintiffs and to let them rise or fall on the plaintiffs’ ability to make out a valid medical malpractice cause of action”).
Lastly, the Connecticut Supreme Court held: “The damages do not become speculative because there is no baseline
derived from Joshua’s own life experiences against which to measure his loss … Joshua’s injuries are the direct result of the state’s negligence in failing to adhere to the standard of care that the trial court found applicable to the procedures it performed. The standards that were breached existed to prevent precisely this sort of predictable tragedy … Second, it is clear that the state is both the party best equipped to avoid mishaps of this sort and the party best positioned to absorb and spread the costs of Joshua’s lifelong care … Third, the state asks us to deny recovery to children who, like Joshua, are injured by the negligent provision of assisted reproductive technologies. If we were to accept this argument, there would be little to deter the state and other providers of artificial insemination services from this sort of negligence and its potentially devastating consequences … The idea that an injured party might have been genetically different, even potentially a different person, but for the injury would not have been comprehensible to the architects of tort law. Our law must be willing to recognize and accommodate the modernization of assisted reproductive technologies … The trial court in the present case restored Joshua to that position as nearly as possible, consistent with the underlying goals and purposes of tort law.”
The Connecticut Supreme Court concluded: “The award of damages is fully commensurate with the injuries that Joshua suffered. The state, having undertaken the serious responsibility of medically creating human life and then having failed to follow the standard of care governing that undertaking, should not now be shielded from responsibility for its negligence on the ground that traditional tort doctrine did not encounter a scenario of this nature.”
The Connecticut Supreme Court affirmed the judgment.
Source Lynch v. State of Connecticut, SC 20646.
If you or a loved one have suffered serious harm or death as a result of reproductive medicine malpractice in Connecticut or in another U.S. state, you should promptly find a Connecticut medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your reproductive medicine malpractice claim for you and represent you or your loved one in a fertility malpractice case, if appropriate.
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