2 fertility clinics respond to egg, embryo storage failures

CLEVELAND -- An Ohio hospital where as many as 2,000 frozen eggs and embryos were damaged by a storage tank malfunction is being sued by a couple who lost two embryos.

The suit brought Sunday on behalf of Amber and Elliott Ash was filed as a San Francisco fertility clinic said thousands of frozen eggs and embryos may have been damaged in a liquid nitrogen failure in a storage tank on the same day.

Lawyers for the Ashes are seeking class action status, which would require approval from a judge. The Ashes say they stored two embryos at a University Hospitals fertility clinic in suburban Cleveland after Elliott's cancer diagnosis in 2003. They say they were told over the weekend that their embryos are no longer viable.

The hospital is still investigating the cause of the problem, which was discovered March 4, the same day Pacific Fertility Clinic in San Francisco clinic suffered a similar failure.

"It's heartbreaking, just heartbreaking," Amber Ash told WEWS-TV. "The medical community calls it tissue. I like to think of it as my children."

The couple has a 2-year-old son conceived through in-vitro fertilization and hoped to bring him a genetic sibling.

RELATED: San Francisco, Cleveland fertility clinics experience rare malfunction on same day

"I find it very hard to believe that in this day and age there are not better safeguards and practices that could be put in place," Amber Ash said.

An attorney for the Ashes, Mark DiCello, said patients have "too many unanswered questions."

"With this lawsuit, we will get answers and stop this from happening again," he said in a news release.

Hospital officials say that they are determined to help the patients who lost eggs and embryos, and that the lawsuit will not affect an ongoing independent review into the malfunction.

Dr. Carl Herbert, president of the San Francisco clinic, told ABC News in an interview released Monday that a senior embryologist noticed the nitrogen level in one tank was very low during a routine check of the tanks March 4.

That embryologist, Herbert said, "immediately rectified" the problem by refilling the tank. The embryos, he said, were later transferred to a new tank.

The clinic is sending letters to about 500 patients "that may have been involved in this tank," Herbert said.

A large number of the patients who have stored embryos in the clinic have let them stay there unused for around eight to 10 years, Herbert said.

The clinic has "viable embryos," he said, and has put in place more fail-safe measures to prevent a repeat of the tank failure.

"We've created many, many babies for women over the years," he said. "And all the possible checks and balances that can be put in place. ... We're adding new redundancies."