California couple sues fertility clinic over embryo carrying cancer gene

By Cheri Mossburg, CNN

A Southern California couple is suing a fertility clinic for fraudulent concealment claiming they mistakenly transferred an embryo carrying a rare stomach cancer gene and then falsified patient records to cover up the error.

Jason and Melissa Diaz claim their young son now faces the potential of stomach cancer or possible stomach surgery to avoid the rare cancer. They filed suit in Los Angeles Superior Court on Wednesday against Huntington Reproductive Center Medical Group, also called HRC Fertility. The couple’s doctor and IVF coordinator are also named as defendants in the lawsuit.

Melissa Diaz carries the BRCA1 genetic mutation making her prone to breast and ovarian cancer. Her husband, Jason, has a rare mutation that predisposed him to stomach cancer which he eventually developed when he was 32. Jason Diaz then underwent stomach removal surgery and chemotherapy, according to the lawsuit. When the couple chose to start a family, they sought out in vitro fertilization (IVF) and genetic testing for their embryos to ensure the mutations were not passed on to their future children.

The couple’s first embryo transfer in August 2020 was free of both genetic mutations, but that pregnancy ended in miscarriage, according to the lawsuit. With the understanding that one of their male embryos carried only the BRCA1 gene which is linked to less risk for men than for women, the couple opted to move forward with a second embryo transfer resulting in a successful pregnancy and birth of a boy who is now a year old, the lawsuit states.

Last summer, when the couple was planning to expand their family again, Melissa Diaz says she reached out to HRC Fertility and requested a copy of her embryo report. Diaz says she was surprised to see handwritten notes that indicated an embryo carrying the stomach cancer mutation was the one transferred resulting in her son.

The lawsuit claims someone from the clinic then called her and “admitted that HRC had made a serious mistake,” inviting the couple to a sit-down meeting in the office.

The lawsuit says Melissa later requested her full medical records from the office.

“Recognizing its error, HRC Fertility then attempted to hide the truth. It produced to Melissa an altered copy of her records that omitted the crucial information of which embryo it transferred,” the lawsuit states.

The lawsuit includes two versions of the embryo records and alleges “HRC attempted to hide the truth.”

The couple is suing the clinic for fraudulent concealment and a violation of California’s unfair competition law, and they are separately arbitrating their claim about transferring the wrong embryo.

“We trusted them to help us have a healthy baby,” said Melissa Diaz in a news conference.

The Diaz’s son “will develop stomach cancer, require a total stomach-removal surgery, or both,” the court filing asserts.

“Because of their error, our greatest fear has become our reality,” said Jason Diaz in the news conference. “I know the pain of this cancer personally. And I know through watching other family members suffer and eventually die from it. I wouldn’t want anyone on Earth to experience this type of pain and now I will be forced to watch my own son — my own flesh and blood — go through this.”

“We deeply empathize with this family’s situation,” HRC said in a statement. “However, the patients associated with the case sought genetic testing and genetic counseling outside of HRC Fertility, and with an outside party; they wished to have a male embryo transferred, which we carried out according to the family’s explicit wishes and in accordance with the highest level of care.”

“We also stand by the professionalism and expertise of our medical staff and pride ourselves on adhering to the highest standards for patient care, patient records, results, and testing at all our locations,” the statement reads.

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