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Class action lawsuit: has Monash IVF breached its legal duty of care?

1 February 2021
By Dr Patrick Foong
Law Lecturer, Western Sydney University, Australia
Appeared in BioNews 1081

A law firm has filed a class action against Monash IVF, one of Australia's largest IVF clinics, following allegations that the fertility clinic may have destroyed healthy embryos through a defective non-invasive genetic screening test (PGT-A test). It has been alleged that the defendants' testing performed on embryos may have resulted in embryos being incorrectly classified as abnormal, ie, generating false-positive results. The IVF patients and some of their partners sued for tens of millions of dollars in financial compensation, with many concerned they may have been stripped of their chance of bearing children. 

In the class action, the lead plaintiff, Danielle Bopping who is in her 40s, was informed by Monash IVF that her last embryo, which had been categorised as abnormal, may have been viable (see BioNews 1079). They claim that the fertility clinic may have incorrectly labelled healthy embryos as abnormal before disposing of them through a now-suspended non-invasive genetic testing programme. 

Legal documents were filed in the Supreme Court of the state of Victoria, Australia against Monash IVF on behalf of patients who had embryos genetically tested with the IVF clinic between May 2019 and October 2020. The allegation is that Monash IVF has breached its legal duty of care owed to their patients by failing to inform them that genetic testing could return a false-positive. Such an omission could amount to misleading behaviour. As lead plaintiff, Bopping will provide instructions to the law firm regarding the case's conduct and may give evidence during the legal proceeding.

Genetic screening allows the detection of gene mutations that could be inherited by the next generation, determining the offspring's risk of being born with severe or deadly genetic conditions. The lawsuit emerges amid revelations that the innovative genetic testing used by Monash IVF is less reliable than initially thought. 

More than 1000 Monash IVF patients could be victims. This could be one of the most significant class actions ever lodged against a fertility provider in Australia, and comprises plaintiffs from various states including Victoria, New South Wales, the Australian Capital Territory, Northern Territory, Tasmania, Queensland and South Australia. Members of the class action seek compensation for financial losses as well as pain and suffering, with some worried they may have lost their chance to have offspring. For the patients, the news has only added to the stress of a long and tedious fertility process. 

The class action comes after a 2018 independent review into Victoria's regulatory framework of assisted reproductive services (Gorton review), led by Michael Gorton AM. The review explored whether there are sufficient safeguards to protect patients resorting to assisted reproductive treatment. Among the inquiry's findings, there were various incidents, including a doctor who allegedly transferred an unviable embryo into a patient. In another incident, defective incubators in a fertility treatment provider's laboratory resulted in the loss of several embryos. The affected patients were not informed of the equipment failure but were led to believe that the embryos succumbed naturally.

A class action is a crucial part of the legal system in which disputes and claims involving vast numbers of claimants to be determined in just one case, allowing ordinary people to hold huge organisations responsible for misconduct. Class actions provide an avenue to people who otherwise would be denied justice and compensation. 

In Australia, where at least seven plaintiffs have claims that arise out of comparable events, a class action lawsuit can be brought by one claimant on their own behalf as well as a representative of the other group members (Bopping). The requirement of at least seven plaintiffs is a lower threshold compared to other jurisdictions. A huge advantage of a class action is that it saves time and expense. It avoids the need for the judge to determine common issues of fact or law more than once, enabling the recovery of losses reasonably and efficiently and at less individual cost. 

While individuals often lack the resources to tackle a mammoth organisation, when enough IVF patients have suffered a similar grievance, together, they can become formidable. Indeed, class actions are a force for accountability as well as corporate and social responsibility. This class action may set a precedent for other jurisdictions especially for common law nations. 

18 January 2021 - by Anna Wernick 
Hundreds of people across Australia are suing the major IVF clinic, Monash IVF, over the destruction of potentially viable embryos...
14 December 2020 - by Christina Burke 
A new approach which uses sound waves to filter sperm for IVF has been developed by Australian researchers...
6 June 2016 - by Dr Mary Yarwood 
An Australian documentary has claimed that women over 40 are being misled about their chances of conceiving via IVF treatment when using their own eggs...
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