In Suit Over Switched Sperm, Fertility Clinic Must Identify Other Clients
The defendants claimed the discovery requests violated the Health Insurance Portability and Accountability Act, but Judge Keith Lynott granted the requests.
September 10, 2019 at 10:00 AM
4 minute read
A New Jersey judge has ordered a fertility clinic to turn over client records in response to discovery demands by a couple whose child was born after the husband's semen specimen was mistakenly switched with that of another man.
Lawyers for the Institute for Reproductive Medicine at St. Barnabas refused to comply with the plaintiffs' discovery requests, which sought the names of male and female clients who used the clinic's services at the same time as the plaintiffs. The defendants claimed the discovery requests violated the Health Insurance Portability and Accountability Act.
But Essex County Superior Court Judge Keith Lynott granted the plaintiffs' discovery requests in his Aug. 28 ruling, though he specified that the defendants could redact patients' personal identifying information and use initials instead of names.
According to court documents, the plaintiffs, Kristina and Drew Wasilweski, spent more than $500,000 for fertility treatments at the Livingston-based clinic, and their daughter was born in July 2013. Eventually the parents, who are both Caucasian, noticed their child's physical features indicated Asian origin, they claim.
After DNA testing, they learned that the child's genetic makeup is associated with Southeast Asian heritage, and there was no chance that the husband was the child's biological father, they claim. In addition, the parents learned their child inherited a genetic blood disorder, Alpha-Thalassemia, that neither plaintiff carried, they claim.
The plaintiffs said they were devastated to learn that the father's sperm was mixed up or commingled with a that of a third party, and were left wondering if his sperm was used to fertilize any other children. The couple divorced in 2017, and they say the defendants' use of the wrong semen in the fertilization was a substantial factor in the breakdown of their marriage, according to the documents.
They filed suit against the clinic and two of its physicians, seeking the name of the child's biological father, his genetics and ancestry, and his family history of mental illness or other serious medical problems. The suit also seeks to learn whether the male plaintiff has any other biological children via the use of his sperm by the clinic. The suit also seeks compensatory damages, and attorney fees and costs.
The plaintiffs sought a variety of documents in discovery, including those listing the clinic's clients of Asian descent who donated semen or whose specimen was thawed at the same time that the plaintiffs used the clinic; women who had their eggs fertilized at the time the male plaintiff's sperm was thawed; and documents describing policies, standards and protocols for the collection, labeling and storage of semen samples in effect at the time.
The plaintiffs' lawyer, David Mazie of Mazie, Slater, Katz & Freeman in Roseland, argued that HIPAA does not apply to facilities that procure and store sperm and eggs. In addition, they said the defendants' invocation of HIPAA was a "red herring," as patient privacy was not at issue. A clinic client who is the biological father of the plaintiffs' child would likely want to know that his sperm was used, and if another client had her eggs fertilized by the male plaintiff's sperm, she would likely want to know that, as well as the plaintiff's medical background, Mazie said in court papers.
The lawyer for the clinic and the doctors, Charles Loughery of Buckley Theroux Kline & Petraske in Princeton, replied in court papers that the individuals whose identities were being sought were involved in in vitro fertilization, which goes far beyond the collection and banking of genetic material, and is an area that explicitly encompasses health care as defined under HIPAA. In addition, Loughery argued in court documents that the assumption that other sperm donors would want to know about the existence of the plaintiffs and the child was made without any factual basis.
Lynott said in his ruling that the discovery of requested records is not barred under HIPAA, even if they apply to the defendant's facility, as the production of documents is being provided for by court order.
The child is entitled to learn the identity of her actual father, if different from the plaintiff, and is entitled to learn if she is vulnerable to any genetic diseases, the judge said.
Any requests for production of specific documents in unredacted form would be reviewed on a document-by-document basis on further application, Lynott said.
Mazie said the judge's decision is "a significant ruling because HIPAA is often seen as an iron curtain."
Defense lawyer Loughery did not return a call about the case.
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