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Attorneys weigh in on new details in UH incident, 'this tragedy could have been prevented'

Posted: 5:34 PM, Apr 10, 2018
Updated: 2018-04-10 21:36:44Z

Attorneys representing patients and families affected by the storage tank malfunction at University Hospital's fertility clinic are weighing in on new information that reveals human error is to blame for the loss.

Tom Merriman currently represents more than 100 patients and families affected by the malfunction. Many of them lost their last chance at having a biological child. 

Merriman sat down with News 5 on Tuesday after the manufacturer of the hospital's storage tank, Custom BioGenic Systems, confirmed through a detailed statement that UH staff weren't following the basic instructions and equipment guidelines. 

"This new information affects the investigation of these cases," he explained. 

Attorney Lydia Floyd is also involved in a pending class action lawsuit. In an email to News 5, she said evidence continues to show this malfunction could have been prevented and highlights a need for federal regulation of fertility clinics.

"We continue to learn additional details regarding University Hospitals Fertility Clinic’s failures at its embryology lab that show this tragedy could have been prevented. These failures also highlight that we need rules and laws that govern how UH and fertility clinics around the country protect individuals and families’ eggs and embryos. Fertility clinics should have standard operating procedures that include having a cooled, back up tank available for immediate transfer of eggs and embryos so that a lab is not in a position where it deviates from  a tank manufacturer’s guidelines."

Attorney Robert DiCello said in another email that UH has a lack of care for those who were affected by the malfunction.

"It’s clear what happened. UH totally neglected to take care of thousands of embryos. And it leaves a question: what is left to fight about anymore? UH, the great pretender, should stop trying to convince us that they care about the families who lost their embryos, and they should join with them and resolve this litigation. It’s time that UH’s actions speaks louder than its words.”

News 5 found videos on the tank manufacturer's YouTube account demonstrating how an isothermal storage unit, like the one the company confirmed UH was using, operates. The video further explains information the company shared with News 5 on Monday, explaining that "UH chose to use a container filling method to pour liquid nitrogen into the top" the Friday before the weekend failure, but "the tank is not designed to be filled by liquid nitrogen being poured into the top of the tank." 

Custom BioGenic Systems' product manual states, "Important: It is not recommended to attempt to manually fill...This is an incorrect fill method and will cause liquid nitrogen to come into contact with the stored samples."

"We don't know what role that played in compromising those eggs and embryos. There's talk of temperature fluctuation, but how about the fact they poured the liquid nitrogen onto the samples, it's in the manual, it's clear, you don't do that," Merriman said. 

Another video on the account demonstrates how each tank model is set up, explaining each tank can be adjusted and ready for storage in less than a week. 

According to the detailed statement Custom BioGenic Systems released to News 5, UH had access to a backup tank for nearly four months to the day of their failure.

"What you have has opened up the window of time that we can look at and has opened up the possibility of insiders, of whistleblowers, of sources to come forward and talk about what happened," Merriman said. 

University Hospitals sent us the following statement regarding the information from Custom BioGenic Systems that staff weren't following the basic instructions and equipment guidelines. 

At University Hospitals, we’ve been working with the tank manufacturer and other outside experts to try to determine the ultimate cause of the failure.  We’re working together to find answers.  But we still have not gotten to that ultimate cause.  We intend to continue to work with the tank manufacturer to ensure this does not happen again.

We’ve been careful to not assign blame.  But we’ve accepted responsibility.  We will not comment any further due to pending litigation.