2nd lawsuit filed against Ochsner

NEW ORLEANS - The fallout continues over mislabeled and mishandled embryos at Ochsner Health System's In Vitro Fertilization program in Elmwood. Two couples have now filed class action lawsuits in this case, with the latest unveiled Saturday morning.

A Lafourche Parish couple, Kim and Abraham Whitney, filed a class action lawsuit in Jefferson Parish court, claiming Ochsner lost four of their embryos.

"We were informed that none of the tested embryos belonged to my clients," said Melanie Lagarde, the Whitneys' attorney.?

During a news conference on Saturday, Lagarde said her clients were too emotionally distraught to speak at the moment. With their embryos missing, they now have a gnawing fear that the embryos may have been accidentally implanted in someone else.

"I have to tell you it is my clients' greatest fear," Lagrade said. "Ochsner has taken the position and stated that they have no such concerns that there are any children who were conceived with the wrong embryos. We're not sure where that position comes from exactly. My clients' embryos are missing."

The Whitneys' lawsuit is the second one stemming from Ochsner's announcement on Friday, where its CEO admitted there had been labeling problems with the embryos. They have since shut down their In Vitro Fertilization program in Elmwood.

"We have reason to believe the IVF center has been compromised due to what appears to be a significant labeling issue, which makes us unable to account for all of the frozen embryos in our IVF center," Dr. Patrick Quinlan, Ochsner's CEO, said during a Friday news conference.

A St. Charles Parish couple has also filed a lawsuit against Ochsner, for problems associated with the labeling of their embryos.

"The facility contacted her and told her that the other two that they were waiting to come and use, had been mislabeled," said attorney Kara Samuels, who represents Heather and Duane Hebert.

Samuels says Ochsner told the Heberts that they had found their embryos, but another problem remained.

"We did find out also that the FDA [Food and Drug Administration] conducted an audit of the facility in earlier in 2008, before my clients were notified-- and determined the STD [Sexually Transmitted Disease] screening that's required to be performed on the embryos, as a matter of federal law, was not appropriately done," Samuels said.

That means, even though the Heberts' embryos may have been located, they can't be used because they weren't properly screened.

"Both of them were shocked and angry and upset, as you can imagine," Samuels said. "It's not like misplacing someone's socks or something."

Late Saturday afternoon, Ochsner Health Systems released a statement, which said, in part, "Sometimes, in issues involving the most personal and emotional aspects of healthcare, problems give rise to litigation. The fact remains that we are doctors, not lawyers, and can't comment on any pending legal matters. Instead, we will let the legal process run its course, maintaining our focus on our patients, the audit of our IVF center, and the transition of care for patients to alternate facilities."

A status conference on the cases is scheduled for Monday in a Jefferson Parish. The separate lawsuits could be consolidated then. In both lawsuits, the couples are asking for a jury trial and damages based on medical expenses and emotional distress.