University Hospitals agrees to extend deadline to file certain lawsuits in fertility clinic failure

CLEVELAND - University Hospitals and the dozens of patients suing the health system over the 2018 fertility clinic failure at Ahuja Medical Center agreed to extend the earliest deadline for additional plaintiffs to file lawsuits.

Cuyahoga County Common Pleas Court Judge Ashley Kilbane granted a joint motion Thursday to extend the statute of limitations from one year to two years to file medical malpractice claims against the hospital.

In March 2018, a cryogenic storage tank in the University Hospitals fertility clinic failed, destroying more than 4,000 eggs and embryos. The health system said the failure affected about 950 families.

"We want to give them extra time to decide how they want to proceed, whether they want to file a lawsuit or come back for treatment. We want to give them that extra time," said attorney Rita Maimbourg, who is representing University Hospitals.

Attorney Tom Merriman, who reports he is representing 250 clients affected by the failure, said the ruling is not relevant to his clients based on the claims in pleadings he's filed. The statute of limitations for other types of claims is at least two years.

"We don't believe they're medical malpractice claims. These claims involve failing to keep a freezer cold and there's no medicine that's involved there, so in our view there's not a one-year statute of limitations, and it's not necessary to extend it," he said.

After the failure became public, the hospital said liquid nitrogen levels in the tank dropped, causing a temperature increase that destroyed the embryos. The hospital stated a remote alarm system on the tank was turned off, an automatic fill that was supposed to add liquid nitrogen was not working and the hospital knew about problems with the tank for several weeks. The lab wasn't staffed at the time, according to the hospital.

Secrecy has surrounded the case since a judge issued a gag order in July to prevent attorneys from speaking publicly about it. Many of the documents provided during the trial discovery process remain under seal.

Plaintiff Wendy Penneman lost three embryos in the failure.

"There's no way to dice the information any other way except for the fact that they really screwed up and they need to take ownership of that," Penneman said.

She said sadness has turned to anger as the one-year anniversary of the failure approaches and she continues to seek justice.

"If there is ever going to be closure on any of this, we had hoped that it would be sooner rather than late. And, in my eyes, the longer this drags out the only people who benefit from this is University Hospitals," Penneman said.

There is little state or federal oversight of fertility clinics.

University Hospitals provided a statement in response to questions from FOX 8 News about the status of its independent investigation into the failure. It did not say whether it would make the results of its investigation public.

"University Hospitals respects the court's ruling that matters relating to these important cases should be addressed through the legal process. We continue to work with the court and patients' counsel to move these cases toward resolution," the statement said.

The statement also said the hospital remains "deeply sorry" and has made significant enhancements at the fertility center in addition to providing affected patients with ongoing, free fertility services.

Continuing coverage, here.

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