California couple sues fertility clinic after baby boy is born with rare cancer gene
A California couple, both worried about their genetic disposition to cancer, is accusing a fertility clinic of implanting the wrong embryo with a rare genetic cancer mutation and then covering up the information. Jason and Melissa Diaz filed the lawsuit Wednesday against HRC Fertility and Dr. Bradford Kolb in Los Angeles County Superior Court.
The Diaz couple is seeking financial compensation for emotional anguish, as well as future lost wages and medical care.
The Diaz couple planned their in vitro fertilization because they each carry dangerous genetic cancer risks. Mr. Diaz has the CDH1 gene mutation, which makes him very susceptible to developing diffuse gastric cancer. Ms. Diaz has the genetic BRCA-1 mutation, which gives her and any children a higher risk of developing breast and ovarian cancer.
When the couple decided to have children, they chose in vitro fertilization so that each of their genetic cancer risks, which they both inherited, would be avoided. When Mr. Diaz was thirty-two, he was diagnosed with his family’s hereditary diffuse gastric cancer. Two of his aunts died from the cancer when they were in their forties.
Mr. Diaz was treated with chemotherapy that did not work, so he had a full stomach removal: a gastrectomy. At the news conference to announce the lawsuits, Mr. Diaz said he had suffered from stomach and serious digestive issues his entire life.
"Life after stomach removal surgery is extremely difficult," he noted.
In court documents, the Diazes said they carefully researched clinics for IVF before choosing HRC Fertility and Dr. Kolb, who works at the clinic.
Instead, due to a mistake at the HRC Fertility, they allege, their baby, now one year old, has the same CDH1 rare genetic cancer as Mr. Diaz.
Despite specifically trying to avoid the CDH1 cancer gene being passed down from father to baby via a traditional pregnancy, and choosing the HRC Fertility to receive a cancer-free embryo, the couple’s worst nightmare still came true. Their baby was diagnosed with the same deadly rare cancer that Mr. Diaz was trying to avoid passing on to their child.
The lawsuit says the fertility clinic not only implanted the cancer-carrying mutated CDH1 gene into Ms. Diaz but also tried to hide the error.
“Never in a million years did I think this could happen," added Ms. Diaz. "We are heartbroken about what our beloved son will have to go through because of HRC's conduct and lies.”
In spite of their research, the Diaz couple missed a prior lawsuit against the HRC Fertility clinic. The clinic, owned by the Chinese company Jinxin Fertility, is one of nine locations in California. In 2022, couple Albert and Anthony Saniger sued the clinic and Dr. Kale, saying that they had a female embryo implanted when they had specifically requested a male embryo. The couple sued for breach of contract, medical malpractice, negligence and fraudulent concealment, and violation of the Unfair Competition Law and the Consumer Legal Remedies Act.
For the Diaz family, the results of their implanted embryo are tragic. Court documents state that at their first meeting with Dr. Kolb in 2018, they said they were doing the procedure to avoid giving birth to a child with the genetic mutations Mr. Diaz has and the BRCA-1 genetic mutation that would be inherited via Ms. Diaz.
After going through two rounds of egg-retrieval procedures, five embryos were created. But Ms. Diaz miscarried, and the remaining embryos were not mutation free. Each of the remaining embryos carried either the BRCA-1 gene or the CDHI gene. The couple decided to move forward with a male embryo with the BRCA-1 gene, since a male would have a much lower risk of breast cancer.
Their baby boy was born in September 2021. Before trying for a second child, the couple decided to move forward with ovary removal for Ms. Diaz because of her high risk of contracting cancer. But when they asked for a copy of their embryo report, they discovered shocking news. Their baby carried both the stomach and breast cancer mutations, court documents allege.
The couple charges in the lawsuit that the report also included hand-written notes saying their baby boy’s transplant carried the CDH1 mutation. Court documents allege that Ms. Diaz emailed the coordinator.
"The reason why we did IVF was to eliminate the gastric cancer mutation if not both genetic mutations,” wrote Ms. Diaz. “We have been so stressed thinking of what our son will go through because of this genetic mutation. Can you please double-check that this is the correct report for our embryos?”
The court documents allege no one replied for days, even after phone calls and further emails. The lawsuit claims someone replied saying that the clinic made a serious mistake and that the couple should come in for a “sit-down.”
"We asked three separate times for an explanation," said Ms. Diaz. "When finally HRC sent the records, they were whited out. It was shocking that my own medical provider changed my records showing that they knew they had done something wrong."
The HRC Fertility clinic denies the allegations. In a prepared statement, the clinic alleged the couple did genetic testing and counseling with an “outside” party.
Court documents say that the Diazes’ one-year-old son will need a preventative stomach removal procedure so that he does not get cancer. The baby has an eighty-percent chance of developing deadly stomach cancer.
The couple said they are hoping to wait to do this until he develops further, since an early gastrectomy may cause both cognitive and physical issues for the child.
