The disposing of embryos has long been a controversial topic in the world of IVF. Clinics can’t afford to keep embryos around when patients have stopped paying their bills. But the ethical and legal implications keep embryo disposition from being a simple decision. Plus, patients aren’t really properly educated on what the limitations of cryopreservation are and clinics aren’t always fully prepared with proper consents and contracts when the time comes to freeze embryos.
On this episode of Inside Reproductive Health, Griffin spoke to Igor Brusil, attorney-at-law and per diem embryologist and legal counsel for the American College of Embryology in Houston, Texas. After working as an embryologist, Igor became interested in the ethical and legal implications of lab procedures, specifically embryo disposition. This led him to pursuing a legal degree and working as counsel for a variety of clients, but his focus remained in healthcare law, risk management, and professional liability.
He brought his unique experience to the show, sharing his thoughts on what clinics can do to protect themselves when it comes to the issue of embryo disposition.
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Welcome to Inside Reproductive Health, the shoptalk of the fertility field. Here, you'll hear authentic and unscripted conversations about practice management, patient relations, and business development from the most forward-thinking experts in our field.
Wall Street and Silicon Valley both want your patients, but there is a plan if you're willing to take action. Visit fertilitybridge.com to learn about the first piece of building a Fertility Marketing System--The Goal and Competitive Diagnostic. Now, here's the founder of Fertility Bridge and the host of Inside Reproductive Health, Griffin Jones.
JONES 2:35
Mr. Brusil, Igor, welcome to Inside Reproductive Health.
BRUSIL 2:39
Good morning, Griff. How are you?
JONES 2:40
I'm doing well. This is the first time that you and I have spoken face to face. You found me through LinkedIn. And I often get requests from people to come on the podcast from LinkedIn. And sometimes it's a good fit, sometimes not, sometimes we're just busy, sometimes I don't think it's great for the audience or sometimes it's a sponsor just wanting to get free advertising or potential sponsor wanting to get that. But I was intrigued by you because you're an embryologist by training, you're also an attorney by licensure. And I thought anybody who's put in that amount of work deserves a half-hour on my show. So can you tell me a little bit about your background and how those two things came together?
BRUSIL 3:28
Certainly! And let me just correct you, I'm an attorney, not just by licensure. There was some training involved as well!
JONES 3:35
Certainly.
BRUSIL 3:37
Yes, it's been an interesting pathway. My first job after college when I got a degree in biology, I ended up at the cryobank. And I was working in a variety of projects involving sperm processing and embryo storage and cord blood processing and storage. And after a while, I entered the field of embryology where I slowly but steadily climbed up the ladder, so to speak, got to a point where I was running IVF labs. And around 2008-2009, something happened in my head and I realized that too many thoughts were swirling around in the skull of mine, particularly concerning ethical and legal issues in IVF and embryology, and I thought, well, there was a school in town where I can go and become an attorney part-time in the evening, and that's what I did. And I got licensed and from that point on, I've been practicing primarily in healthcare law, risk management, professional liability, but I've also done litigation in what we call general commercial litigation. So that's the path. If there is such a psychiatric disease as multiple professions disorder, I am a perfect example of that.
JONES 5:04
Yeah, we could probably diagnose you with that! A lot of people have thoughts swirl around in their head and it doesn't always lead them to law school and to keep their jobs. This wasn't really a career change, it was almost a career addition. What were those thoughts swirling around in your head?
BRUSIL 5:24
Well, primarily, I wanted to know what exactly we're dealing with--what's a pre-implantation embryo? What are the ethical and legal ramifications? The industry is developing and has been developing very quickly, and it's going in different directions, depending on what opportunities new technologies allow. And that raises on a daily basis--well, not necessarily daily, but on a regular basis--it brings up very difficult questions that are tough to resolve. And maybe we'll get a chance to talk about some of them, whether it's business-related risk management, logistical risk management, or clinical risk management. IVF has produced a number of questions, but those questions have not produced too many substantive answers. And I wanted to have the educational and practical background in both and it seems like it has worked out, at least I do have a unique skill.
JONES 6:22
How did you bring them both together because you have your training as an embryologist and you wanted a deeper understanding of the law, which is why you went to law school, but most lawyers don't learn anything about the legal status of embryos in law school. So how did you--you had the legal background, but you still had to bring them together, those two different channels from your background, how did you do that?
BRUSIL 6:49
Well, what I did is how I approached my practice of law. I believe that clients don't always look for strictly legal answers. They look for practical guidance. It's one thing to say the law says A, B, C, and D but it's somewhat different, and in my view, much more productive, and substantive from the point of a counselor-at-law is to suggest what exactly do you do with that. And knowing the lab inside out, having done just about every procedure with my own bare hands, I can, with greater ease, suggest certain ways that my clients could deal with risks that are popping out from every direction.
JONES 7:39
So one of the issues that was in your purview was the issue of the disposition of abandoned embryos. Before we talk about how that became the issue, what is the issue there? What is the concern from your view?
BRUSIL 7:58
Well, let's define, as much as we can, what's an abandoned embryo. Obviously, a couple or one person goes through an IVF cycle, embryos are cryopreserved, and the normal sequence of events is that those embryos that are cryopreserved will remain in storage and from time to time the clinic would send a bill to the owner or owners of the embryos. And at that point, either a payment for subsequent storage term will come in or the owners will decide now we want embryos moved to a different location, we want them donated for one purpose or another, or we want them discarded. What frequently happens is that there was no response from the owners to the request for continued storage. And I'd like to move back to about 1995, again, my first job at the cryobank, I didn't know embryology firsthand, but part of my responsibilities was to manage an embryo storage program. My employer took as a courtesy to an IVF clinic that ceeded operations that took several tanks of embryos belonging to university clinics' patients and my job was to contact those individuals and let them know that we were in possession of their genetic material and my job was to elicit some kind of response from those owners as to further disposition--whether they wanted to store with us, move to another location, or what have you. And I discovered very early on, before I even became an embryologist that, in my experience, the majority of individuals do not respond to requests for instructions as to what to do with the embryos. And I remember vividly, I would go up to my manager to do a weekly report. And I would say, Look, I'm not getting any responses. I filled out all of the green cards for certified mail, I mailed them to the address we have on file, nothing is coming back--either it's undeliverable, or if it's delivered, there's no response. And my managers, my immediate manager and her immediate managers were all scratching heads. It's like what are you talking about? These are important things, how come people are not responding? And that's when I learned that quite a few patients will not respond and the IVF clinic will be in possession of those embryos and wouldn't know what to do with them. And today, as the industry develops, I think that issue will become even more acute because there is more PGS, aneuploidy screening done that requires that embryos be frozen. There is some move to do freeze-alls and transfer embryos and a nonstimulated cycle--that by definition results in more embryos to be frozen. So unless the clinics manage their risk, the risk will become unmanageable.
JONES 11:15
What do you find that the agreements often, that they should entail and that are often lacking from your experience?
BRUSIL 11:25
Well, my take on risk management is it is not about preventing a claim or a dispute or a loss. There is nothing you can do to prevent someone from suing. You can sue God for bad weather. All you have to do is fill out some papers, pay the filing fee and so long as there is a name under plaintiff and a name under defendant, there you go, you have a lawsuit. The issue of risk management, as I interpreted it, is how do you create a system that will allow you to effectively defend a claim--and that's the main concern among practitioners is that if we have embryos, we haven't heard from their owners in 5-17 years, however many years, if we, God forbid, discard them, we'll be hit with lawsuits. Well, if you don't want to drown, don't get into the water. The reality is that once you start doing something, you may be liable for doing it or not doing it correctly. So what I found is that many clinics don't approach embryo storage from the standpoint that this is a business. It's a standalone business. It's not an adjunct to an IVF clinic, it has to be managed as a separate business. There has to be a set of procedures implemented and written and reviewed regularly. And by review, I don't mean just look at the procedure on January 2 and sign off for the upcoming year. You have to review those, the laws change in every state, there are relevant court decisions handed out on a daily basis, you have to monitor that. And you also have to manage the inventory and the billing--I'll give you an example. The clinic couldn't even understand--they approached me about this issue--and they couldn't understand whether they even had abandoned embryos. May sound kind of strange, but it was the standard of practice for that clinic to bill patients for all of the procedures that were outstanding. So for example, the patient would get a bill for $100 for ultrasound, $100 for something else, and then $200 for storage. Patient returns a payment of $200. Question is, what did the patient pay for? Did the patient pay for the embryos and therefore I might have a claim, hey, why did you destroy the embryos when they paid for him? Or did the patient pay for the other procedures on the bill? And I see that billing doesn't really ring that much of a bill for some clinics, they outsource billing to third-party providers, and they just send out bills for whatever amounts are outstanding. In my opinion, if you want to get a hold of--if you want to grasp what you have and who paid for what, billing has to be separate. And I've seen some agreements that were, frankly, in my opinion, just substandard. And what I heard from some clients is that well, the lawyers are too expensive. They don't know anything about IVF, we can just Google stuff and copy and paste, and it looks good and we'll just use it. And I've seen consents written and used for years. That's not the way to approach it. Just to give an example, I pulled up a consent, an existing consent from a website or a practice and it has an indemnification clause that states that the patient or patients, if they decide to sue the clinic, they will indemnify the owners, agents, employees, and servants. And I'm thinking, when was that clause written? We don't have servants! At least if you cut and past, read what you're getting. It's laughable. You don't want to get into a court with the consent that will make the judge laugh or have very ambiguous things. Here's another consent, that I pulled up on the website of an existing clinic. At the top of the consent, it's an agreement. It says the clinic shall store the embryos for three years. Shall, okay? The clinic has affirmatively taken a duty to store the embryos for three years. Two paragraphs down below it says if you don't pay for 60 days after we mail you a notice, we will throw the embryos out. Okay if I'm Judge Brusil when I have a piece of paper that says within two inches "We shall store" and then "Within 60 days we'll discard," well, what do you mean? The general rule is that agreements are interpreted against the draft or meaning, if you were the person who wrote it, you can't just say, "Oh, I'm sorry, I didn't mean that. We shall didn't really mean shall, it meant we might." I can give you multiple examples of things that are clearly ambiguous and the last thing you want to do, if you have to defend a claim, is have an ambiguous provision.
JONES 16:42
So as an attorney, you're looking at these agreements, because you're mitigating risk, and you want the language to be explicit in the case that you have to defend a claim. But there's also a utility in using the agreement properly, that it simply sets the expectation with the patient up front, that if the language is correct and explicit in the initial agreement that you might encounter less problems with the patient because their expectations have been set properly from the beginning. Is that also part of it?
BRUSIL 17:22
That's exactly right. The very basic tenants of what an agreement is it's a documentation of the intent of the parties. Not only intent, but the properly-worded agreement should do exactly what you said, it should state what the duties and the rights of the parties are very clearly. It shouldn't say--I'm referring to yet another consent I pulled up a bit on the internet--we will take all reasonable measures to contact you. The next paragraph, we will take all diligent measures to contact you. What's diligent, what's reasonable? If you have to defend a claim, the judge has to decide whether you did something was reasonable or diligent, is there a difference? And if there is, it will--
JONES 18:12
I suppose it--we will notify you by email, we will notify you by mail at these particular times. If we don't hear from that time, then it's expected that--
BRUSIL 18:25
That's one way of approaching it. You can also I suppose, say we will contact you based upon our then established procedures and then you have a procedure that's contemporary in use, and you follow that procedure to the tee. You don't necessarily have to explicitly state all of the steps you take. The drawback of that if you commit to something, you better do it.
JONES 18:52
Prove that you did.
BRUSIL 18:54
Absolutely. Everything has to be documented--if it's not written, it hasn't been done. So there are pros and cons of being very specific and ambiguous and it has to be done. skillfully, preferably by an attorney who understands what IVF is all about because if you deal with an attorney who doesn't know the ins and outs of IVF some of the provisions may be just impractical to enforce.
JONES 19:21
So I think we might also be making an assumption that patients know what happens to embryos after the fact. And this is really timely, Igor, because I received a message from a woman that does not work in the fertility field--she and I were acquaintances and work in a previous career life--and she was very interested in this topic because she's going through it at as a patient. And her message says this, "It would be nice to hear how some doctors discuss this problem prior to a patient's"--the problem being that she doesn't know what to do with her embryos right now because she didn't think about it--"It would be nice to hear how some doctors discussed this problem prior to a patient starting IVF process because we hadn't thought about it." And an agreement, an contract, is an excuse to go over--an opportunity to go over something explicitly.
BRUSIL 20:18
Correct. And I frankly, I will admit, I don't know the answer to the question whether every physician goes over every word of every document. In my experience, things like consents and contracts are presented to patients by clerical staff and explained by individuals other than the physicians. I also know that if patients have questions, they will bring it up to the doctor and the doctor will make every effort to explain. The only way to know is to somehow collect that information from every physician in the country. And that's obviously not practical. But it is important for patients to read what they sign. It is absolutely critical. And if they have questions, they should be asking and demanding answers. Because you're absolutely right, if you don't understand what you're signing, then that's not informed consent and it's not good.
JONES 21:16
So the argument could be well, how can we possibly get informed consent for everything? Or how can we have this level of detail conversation because the patient is getting so much information at once, they're inundated. And I think this makes the case for having as much content and as much process improvement along the way as possible to have some of these conversations so that the time going over these with clerical staff, or anyone else at the practice, can be devoted to reinforcing and clarifying what's been said, rather than introducing a new concept for the first time. Because I think if it is introducing concept for the first time that it will be the deer in headlights. And we used to do presentation as--our firm used to do presentations and proposals and we no longer have we stopped two or three years ago, we don't do that anymore. We don't do proposals. Instead, I have a conversation with the group, we agree to something in concept and until we agree at investment level, timeline, and what's required from both of us and outcome, I don't put--I don't do anything. And then once we agree to that in concept, then our what would have been a presentation or proposal meeting isn't going over any kind of slide deck, it is going through the service agreement, line by line. So it's not the first time that they're seeing this, and then we're reserving that time for making sure that we are really on the same page, because we're going over through it explicitly. And I'm telling you, Igor, from doing it that way, as opposed to before where it was a lot more ambiguous or was, "Oh, yeah, you know, we're, yeah, we don't need to put in a contract. We don't need to go over that together." Doing it this way, it seems like oh, this is far more litigious, reviewing a contract together. I'm telling you, we almost never have questions about what's in scope and not and I've never had to enforce a contract (knock on wood) because we're so explicit about it upfront. So I'm not sure if this is exactly what you're talking about, but this is where I view the opportunity to get as much information to the patient's mind as possible beforehand, and then using the opportunity to review the agreement explicitly.
BRUSIL 23:44
Yes, it's certainly relevant. You have to keep in mind that physicians operate in a slightly different legal framework. The duty to consent, the standard of care, basically, for that is that in some states, it is phrased--I'm paraphrasing--but the general rule is that physicians should convey the information that a reasonable physician with the same training and experience would have conveyed. Some states have a patient-oriented standard, which stands for the proposition that physicians should tell the patient what a reasonable patient would want to know. Now, we can debate whether the final analysis of this entails telling more or less depending on the standard. I would prefer to be more conservative, but at the end of the day, it has to be a balance. You can't possibly lay everything out on the paper and expect the patient to digest and understand. It's a high tech industry with lots of unknowns, with sometimes probabilities and possibilities and assumptions, and to expect that every patient will know every possible detail is just [inaudible]. But there is a certain amount of information that must go on paper and the patient has to be informed. And with regard to abandoned embryos, you absolutely have to, in my opinion, tell the patients or the patient, that it's their responsibility to make sure that they remain in contact with the practice. And it has to be on paper, it has to be part of their duties. And that's pretty much where I'm coming from.
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JONES 27:35
What else can--and maybe it's all entirely in the agreement--what else can clinics do to reduce their legal risk presented by abandoned embryos?
BRUSIL 27:55
Some may choose to include something that's called "liquidated damages provision," which is a concept that is generally recognized in every state. And it basically means if you can't possibly predict the value of the property that is in possession of one individual or one party--if that property disappears and is lost, you agree upfront to the maximum amount that the losing party will get as compensation.
JONES 28:29
And that's opposed to equitable relief, is that correct? Liquidated damages as opposed to equitable relief?
BRUSIL 28:35
And arguing as to the value of the embryo. I don't know how you put a number, a dollar number on the embryo. The legal standard of what the embryo is--the pre-implantation embryo--is as ambiguous as you can get. It says something to the effect that pre-implantation embryos occupy an interim category somewhere between property and persons with special status and special respect because of their potential to become human beings. Well, what exactly does that mean? I don't know, I haven't seen or heard an attorney who knows what that means. I haven't read a single court opinion that explains what that means. And this notion has been massaged in legal literature for --well, it's 92, where we're talking quite a few years, a couple of decades. With that ambiguity, nobody wants to go to court and start arguing whether it's a $10 embryo, or $5, whether it had potential, didn't have potential, and if it didn't have potential as many embryos don't, what kind of respect does it deserve? I frankly, haven't seen anyone disrespecting an embryo. From what I know, every embryologist, every physician treats the embryo with the utmost respect. And from the practical standpoint, I think that's standard. By the way, our listeners and viewers can thank the American Fertility Society that introduced that notion into the head of the judge in 1992 in the case Davis vs. Davis, Supreme Court Tennessee. That's where we're live. That's the reality. Totally unworkable legal standard. At least if you have an enforceable provision, you might be able to limit your risk. I'm not saying that the court will agree to enforce it, but it's better than having nothing on paper. And finally there is nuclear option. And as other nuclear options, it has been used once, in my opinion, pretty effectively in North America, in Canada, where practice went to court and filed something called Petition for Declaratory Judgment. Every court in every state in the United States allows that procedure. And basically what the Canadian clinic did in 2013, they went to the judge and said, Look, we have spent a year and a half, calling patients, emailing patients, sending certified mail, we even hired a private investigator to trace owners who have not been in contact with our clinic, and we still can't find some. So they went to the court and said, Judge, allow us to enforce our rights on the contract and dispose of the embryos. And the court said, "Look, I've seen what you've done. Here we go. Why don't you place an ad in the newspaper? We'll wait a while after that. And if nobody responds, you can discard those embryos." It can be done, has been done. I certainly can see many of our listeners cringe at the idea of running into court and seeking relief that way, but let's circle back to where we started, you have an issue, you have a problem with abandoned embryos, it's not going away. Either you do something about it, or you don't. If you want to kick the can down the road, that's fine, you can live with that business decision, but then don't complain. But if it is a problem, you have to do something about it. And that perhaps is one option.
JONES 32:15
Yeah, if we're choosing between two idioms, I tend to prefer nipping in the bud over kicking the can. So what are the other--I guess, are there any other key components of a storage agreement to help reduce legal risk that I didn't ask you about?
BRUSIL 32:31
Well, a storage agreement should be a storage agreement, I have seen clinics combine it with a consent in one document. I would prefer not to do it because the rules of construction of consensus and agreements are different. And if you want to avoid ambiguity and keep the courts basically narrowly focused on one particular concept, it's better to do it that way. Rather than introduce consent law or ever mix it up with contract law, you want to reduce any ambiguity. That's my position. Number two, you have to clearly state whether you will store the embryos for as long as the patients want or there's a set limit after which the embryos have to be either transferred out or disposed off in whatever manner you allow patients to dispose of: donated to science, if you can do it, donate to proficiency testing, or discard. But you have to set a time limit in my opinion. Some practices have one year, I've seen practices do three years, five years--it's a business decision. But if you want to reduce the liability, I think you have to make it very clear that we're not storing the embryos beyond certain point. Thirdly, you have to be very clear, what are the duties of the patient or the patients are with regard to communication with the clinic. You have to be very clear, and you have to be very clear as to what measures you will take to contact them. Now, you again may say we will use procedures then in place, but you better have those procedures and follow them. Or if you want to commit to a specific sequence of events, say we'll give you two phone calls, three emails, five registered letters and six certified letters. If you want to do that, that's a decision you can make, but make sure that you follow them. And then, have the contract reviewed by an attorney. You don't want to include provisions that are unenforceable. I have seen clinics include a provision that states, your non-responsiveness to our letters constitutes express consent to discarding embryos. Silence is not expressed consent. You can't say that if a person doesn't respond to a letter that is expressed consent. You can say that your silence--you can set out the default provisions and non-responsiveness may trigger termination of the agreement. But you're not going to be, in my opinion, very successful by going to court and say, Hey, this patient didn't say anything that's expressed authorization. These are two self-contradicting theories
JONES 35:34
In your view, is there any easy solution to disposing of abandoned embryos?
BRUSIL 35:41
Easy? No. I don't think there is because you're dealing with the reality, which is a fact as much as gravity, that there will be patients who will not respond to your request for instructions on how to dispose of embryos. That's a fact of life. And if you read literature, some people have analyzed, have asked IVF patients, how they make dispositional decisions. I've seen numbers 30 to 50% of patients say that they don't know what to do. So it's a fact of life as much as gravity, you will have this issue. You can take certain measures to reduce the risk, you can never eliminate it. But there are no easy answers. The only that I can think of if you don't want to deal with liability is a frozen embryos don't freeze them. And that is something that I think very few listeners will find palatable.
JONES 36:39
I think you're probably right about that. Another topic that you had hit me to and maybe it's a topic for another day, maybe it's related, but you had mentioned legal risks regarding mosaic embryos?
BRUSIL 36:56
Mosaic embryos as a phenomenon entered the field quite a few years ago, when pre-implantation genetic screening was done on day three embryos with a limited number of chromosome probes. And we quickly realized that one embryo doesn't necessarily represent the rest of the embryos. And I was involved in a study of when we biopsy two blastomeres side of the same embryo, and we're getting different results. So this is not a new concept, the extent of mosaic is a new concept, because we have far more precise tools now at our disposal with next generation sequencing to reveal the extent of mosaicism. And that's an issue that I think, as the industry matures, and more and more cycles are done, more and more mosaic embryos are transferred, I think there is a there is a possibility that there will be an impacted child who will be born from an embryo diagnosed as low mosaicism and fairly low-risk transfer. There are also issues of consent. It's very complicated, from the scientific standpoint, issue to explain to a patient and you have to stay within the legal requirements of what constitutes effective consent. And it's not easy to do try explaining to a regular individual what segmental aneuploidy is or allele dropouts and things of that nature. You can certainly get away, in some cases, with very general provisions. But frankly, the law in my opinion is developing in the direction that general phrases like, we're not aware of any side effects or this procedure is generally safe, I think that area is going away. I'll give you an example. It was an interesting case settled last year in Maryland. The first one, as far as I can tell, on this topic. The plaintiff sued an IVF practice on the basis of not getting informed consent. The plaintiff, the male, underwent--had his sperm sample collected and ICSI was performed. Now it's not quite clear why exactly ICSI was before on the day of egg retrieval. The semen parameters were fairly normal. They weren't normal in the past. So the clinic probably proceeded on that fact. But the consent form stated that and I'm looking at the court decision here, that ICSI may involve unknown risks to the baby. And while there seems to be no higher overall incidence of congenital malformations, the risk cannot be totally ruled out. Now, you may be asking yourself and our listeners may be asking, what does ICSI have to do with mosaic embryos? It's a general proposition that I am noticing and pointing out that a general consent that says, "Well, risks cannot be ruled out, but we're not quite sure." The court didn't buy that. The court said, "Look, the plaintiff came in and brought in a bunch of articles as far as five years before the lawsuit that suggested the very strong association between ICSI and congenital malformations." And even though the plaintiff did not have--the resultant fetus did not have the same malformations that had been reported in literature before, the concept allowed this point of, in my mind, to prevail, the case was settled very quickly after the judge ruled in favor of plaintiffs. And the ruling stands for the proposition that you can't just get away with general phrases, something we don't quite know, blah, blah, blah. You have to be on top of this.
JONES 40:57
So what can clinics do to mitigate their risk with mosaicism? Is it giving as much information as they have at the time? These are the risks as we understand them? Do they have to update it every quarter or every half year, every year? What can clinics do to mitigate their risk here?
BRUSIL 41:15
Well, I think that clinics should not be disposing with general phraseology. I think the clinics should indicate known risks or known unknowns. God knows mosaicism has raised a number of debates in the IVF arena. There are some ardent opponents of the entire concept of pre-implantation aneuploidy screening because of the existence of mosaic embryos. And the clinics should--some should include some provisions consistent with current literature that indicate where we are in this sphere. And I certainly wouldn't go back to consents every month or every time there is a case report in some lesser-known journal. It's impractical to monitor all the literature in the world. But I would think that it would be prudent to review these concerns on an annual basis and see what the state of the art is. Are there any reports so linking mosaicism to adverse outcomes? Perhaps there aren't any. And you indicate that these consents are living organisms and you need to maintain--you need to do some diligent search on an annual basis, I think, and update these consents accordingly.
JONES 42:37
Igor, you've given us so much to consider with regard to the risks facing embryo storage, with the disposing of abandoned embryos, newer issues regarding mosaicism. How would you like to conclude with our audience knowing that many of them are practice owners, some of them do work in the lab, How would you want to conclude with them?
BRUSIL 42:57
Well, I would like to express my sincere belief that risk management is a proactive rather than reactive endeavor. Again, you can't bring the probability of a lawsuit to zero, but you can create a structure and legal support is one leg of that structure, one support beam, if you will, that needs to be considered. It is far easier to prevent things from happening or at least come up with implementable procedures to put in place and think proactively. Just recently, it hit me. I opened up one of the major journals and the article written by a very respected physician coming from a very respected medical school starts with the phrase "cryopreserved embryos are an unexpected consequence of IVF." I'm sorry, it's the very essence of IVF. It is just as expected as you know, gravity. You have to be business-oriented and approach this as a businessman. You have to manage the risk. You can't just assume that well, you know if I get a lawsuit, they'll just call off my insurance carrier. They'll get the lawyers on the case and that'll be the end of it. And I also wanted to bring to the attention of our audience, something that I haven't heard people think about, or at least to verbalize in my discussions, but I have long thought that this is an underestimated risk. It's not just about lawsuits. Patients do have a right to file administrative complaints with medical boards. Think of the physician who transferred the eight embryos to a woman that were optimal, he lost his license. There was no loss, in that case, the medical board said that's unprofessional conduct. And I think many physicians in my experience--I've dealt with physicians have different specialties, not a single one could tell me exactly what are the disciplinary powers. So the medical, and those powers are very wide. The laws are written to give medical boards very wide authority to discipline physicians. And I think that's something that many providers don't think about. It doesn't cost any money to file a complaint of unprofessional conduct and the board will take it from there. I wouldn't recommend dealing with medical boards. It's not fun. So if the patient feels that you did not consent and did not express exactly what the power of aneuploidy screening is, what are the existing problems, if the patient feels it was just a waste of money and time and didn't produce a desirable result, they can file a complaint and then you have an investigation. So it's not only about legal, there's substantial risk, substantial in terms of its effects when a State Medical Board gets involved. You know, if you lose a lawsuit, you have to pay somebody. If you lose an administrative hearing, you can lose your license. These are completely different things.
JONES 46:08
You've given us a lot to think about regarding this. Igor, do you work for one lab when you're an embryologist or are you per diem embryologist?
BRUSIL 46:15
Per diem.
JONES 46:16
So that means if you don't hire him as an attorney, you can hire him for your lab. Igor we're going to link to your contact info in the show notes and I hope people will find this resource useful and hopefully they reach out to you if they want more information. Igor Brusil, thanks so much for coming on Inside Reproductive Health.
BRUIL 46:37
Thank you for the opportunity. I sincerely hope our audience will find it useful and educational.
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You’ve been listening to the Inside Reproductive Health Podcast with Griffin Jones. If you're ready to take action to make sure that your practice drives beyond the revolutionary changes that are happening in our field and in society, visit fertiltybridge.com to begin the first piece of the Fertility Marketing System, the Goal and Competitive Diagnostic. Thank you for listening to Inside Reproductive Health.