Issue: February 2016
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Problematic Procreation: Liability Risks in Diagnosing and Treating Infertility

Introduction

Diagnosing or Treating Infertility: Liability Risks

Infertility affects about 12% of women between age 15 and 44 and about 7% of sexually experienced men younger than age 45 in the United States. 7.3 million U.S. women, or their husbands or partners, have sought treatment for infertility.

 

A variety of factors, including disease or trauma to reproductive organs, can cause infertility. Errors or negligence by health care providers treating other medical conditions may in some cases cause patient infertility. In addition, errors or negligence by providers in performing medical procedures to diagnose or treat infertility sometimes can result in injuries to patients.

 

Attorneys, physicians, hospitals, insurers, employers, and other potential parties to litigation should be aware of the types of lawsuits and other liability issues that arise in connection with the diagnosis or treatment of infertility.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a claim of lack of informed consent, alone or as part of a medical malpractice or negligence action, related to the diagnosis or treatment of infertility? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury related to a patient’s infertility? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent in connection with the diagnosis or treatment of infertility? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be subject to liability for an employee’s infertility? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence for a patient’s infertility.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving a patient’s infertility.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of malpractice or negligence involving a patient’s infertility.

Employers:

Use this checklist to determine if the employee’s infertility is “work related” and occurred “in the course of the employment.” 

Expert Analysis

What Risks and Protections Impact Assisted Reproductive Technology Arrangements? 

Margaret E. Swain, RN, JD

What Legal Considerations Are Important in a Surrogacy Relationship?

Stephanie M. Caballero, JD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution. 


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving female infertility?



Medical Examples

Infertility

This section provides detailed medical information on infertility, the causes of infertility, assisted reproductive technologies, AMA guidelines, preservation of reproductive health, diagnosis, treatment generally and ART treatments, in vitro fertilization, artificial insemination, and surrogacy and gestational carriers. Also discussed is the prognosis and ability to work of a patient experiencing infertility.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on infertility.  


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Problematic Procreation: Liability Risks in Diagnosing and Treating Infertility

Table of Contents
Introduction

Expert Analysis
   Margaret E. Swain, RN, JD
   Stephanie M. Caballero, JD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Infertility

Law and Medicine Resources