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My question is regarding fertility related issues. we have

My question is regarding fertility...

My question is regarding fertility related issues. we have dealt with an international clinic, and now we have problem about how they did not report on the procedure and how many embryos they used. Now they claim they have used up all the embryos while they did not report it right after the IVF. We had asked the question right after the IVF about how many embryos are left, but they never replied. Now that we want to ship them to Canada, suddenly they say there is none left.  Our impression from the doctor was that there is one left. Any idea how we can get info on if there is anything we can do?

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Answered in 3 hours by:
9/5/2013
CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10,244
Experience: Civil litigation attorney for individuals and businesses.
Verified

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

I want to ensure that I understand the type of relief (result) you are looking for here today. If you are trying to get information from this physician or medical group, usually a firm written (letter, not e-mail) demand will be the first step.

William B. Esq. :

If you are trying to get compensation for negligence, you will need to file a civil claim (unless they are willing to enter settlement negotiations with you - a much less costly and perhaps more effective way to deal with this situation - but that is a decision that you will need to make).

William B. Esq. :

If you can give me a little more information as to the direction you are looking for I may be able to better assist you (I do want to give you as much information as I can).

Customer:

Hello, thanks for getting back to me

Customer:

The problem is that they say there were not supposed to tell me no embryos are left, and it was my responsibility to ask for the info

Customer:

Later, I found out an email in which I had asked to make sure that my understanding is correct that there is embryos left, but never replied and we assumed that our understanding is correct

Customer:

this is around late June

William B. Esq. :

This would be an issue of "comparative negligence" - I don't know if you are intent on suing to collect damages (the dual responsibility would make for a difficult case - you would still be entitled to something, but you would have a much more difficult trial).

William B. Esq. :

The misrepresentation regarding the e-mail could be construed as fraud (intentional misrepresentation) but more likely negligent misrepresentation - which would bolster your case significantly.

Customer:

later we contacted the clinic where they keep the embryo and asked them if we can give their coordinates to the shipping company, and they said they are OK to start the procedure

William B. Esq. :

Are you looking to sue for damages, or do you believe there is information out there that you still want to get prior to pursuing a claim?

Customer:

We suspect that the embryo was there and something happened to it and they are trying to cover it up

William B. Esq. :

Are you interested in following up with them (again a strong letter - hard copy, you can send an attachment with an e-mail, but I prefer hard copy letters) asking for specific information about that specific embryo, and reference your earlier e-mail to identify it, that may give you a start on getting some information (at least you can initiate your investigation / claim from there.

Customer:

what the clinic told us made us believe that there is embryo left, it is only after they came back from vacation they say there is nothing left

Customer:

but should i say what I am demanding from the beginning? I mean lawsuit or just info? They say we are telling you that there was none left, and it was just a misunderstanding

Customer:

In general, do we have a case based on the fact that they failed to let us know that they used up all the embryos, and when we asked they failed to answer us. But now, after two months when we want to ship it they say there is nothing left?

William B. Esq. :

You can follow up with a "confirmation letter". I cannot tell you whether or not you should file a lawsuit immediately, or if you should get information now and try to work out a settlement. I usually let customers know that a "pre-litigation demand letter" is a helpful tool to initiate settlement discussions so that the parties have a chance to discuss the matter and hopefully reach a settlement prior to going into litigation. By doing this you can identify the specific issues where you feel the medical center "breached its duty of care" and identify your settlement demand.

William B. Esq. :

Dear Customer, I have located another publication from a municipal court in Delaware (it is one municipal court, but the rules would apply to each - although the specific departments would of course vary. The specific issues related to your matter (payment of rent during this time) are referred to as "rent escrow" there is a short section on that including procedures: http://www.delawareohio.net/UserUploads/UserDocuments/MunicipalCourt/smallClaims.pdf

Customer:

So our first official hard copy letter is to confirm our understanding on what went wrong. and why we feel they "breached their duty of care"?

Customer:

Sorry, what is the link you have sent about rents??

William B. Esq. :

Please ignore the last post.

William B. Esq. :

My apologies it was for my other customer, again my apologies.

Customer:

no worries, that is what I guessed.

William B. Esq. :

You are correct, the letter is a "Pre-Litigation Demand Letter' it serves two purposes (1) it places the medical center into a settlement posture; and (2) it will put the medical center's insurance on notice - they will "tender the claim"

Customer:

nowhere in the contract it says they have to tell us about how many embryos are left, they only say that the embryos are our exclusive property. but we know it is a common practice to let the client officially know about how many is left. Here not only they failed to inform, but even after we asked they failed to let us know, and when we contacted the clinic directly at first they said they are Ok with the shipment, later they said they made a mistake

Customer:

that is why we are suspicious, but we cannot prove what really happened

William B. Esq. :

You are making a negligence claim, not a contract claim (although most of these cases the plaintiff alleges both negligence, professional negligence, and breach of contract).

Customer:

and we specificially mention this in the letter?

William B. Esq. :

Certainly. The letter is simply a demand that threatens litigation based on specific acts of the potential defendant that are below the standard of care for that person or facility based on a similar professional or facility in the same or similar circumstance. Or a breach of the contract that you signed with them.

Customer:

shouls we send it ASAP? or it does not matter?

Customer:

should

William B. Esq. :

It depends, what state do you live in, and how long ago did you discover these acts, and how long ago did these bad acts occur (these are statute of limitations questions).

Customer:

I am not even from US, I am from Canada. the company has a head office in NY. But their main operation is in Switzerland.

Customer:

What I told you about (discovering about these) was almost a week ago, but they gave bad service from the beginning back in October 2012

William B. Esq. :

(I did note your earlier post, I just want to ensure - statute of limitations issues are extraordinarily important I do not want any misunderstandings).

William B. Esq. :

In New York, (the location of these bad acts) the statute of limitations is 3 years for negligence and 6 years for breach of contract. (http://www.expertlaw.com/library/limitations_by_state/New_York.html). You have lots of time to work with.

Customer:

So we should write the letter and based on their response we may want to get a lawyer?

William B. Esq. :

This gives you the option of several things: (1) bringing a claim right away ensures that the defendant is most likely to be solvent. (2) fresh claims are usually easiest to prosecute as the evidence is less likely to be disposed of; (3) You can bring a claim now knowing all of the individuals involved are most likely to remain employed.


If you wait, it gives you other options (1) you can wait and make a more nuanced "business" decision as opposed to a more "emotional" decision - a short cooling off period; (2) the insurance policy will cover the claim regardless as to whether or not the defendant is still in business; (3) you have time to plan your litigation.

William B. Esq. :

You can decide on whether or not to get an attorney based on several things (1) an attorney will assist you in navigating how to best prepare your case to get insurance on board (make a negligence claim to get insurance vs. an intentional acts claim to try for punitive damages - I don't see that in your case anyway); (2) an attorney can assist in actual litigation as they will take the burden off of you, and they know the procedural hurdles far better; (3) you can evaluate the cost/benefit analysis of an attorney - decide how much the case is really worth - take a very hard look at it, and evaluate it with a "best day/worst day" evaluation against the attorney's fees.

Customer:

So how can we help in writing the original letter if not going the attorney route? Also, when you talk about insurance you mean the insurance of the medical centre, right?

Customer:

how can we get help in...

William B. Esq. :

Without an attorney, you will need to draft your own demand letter. There are many many "samples" online that you can use. Here is a helpful article written based on California Demand Letters (I find these to be the most comprehensive as they are aimed at meeting very specific insurance policy requirements): http://thecalifornialitigator.com/preparing-a-settlement-demand-letters-mar-7-2011.html

William B. Esq. :

The insurance I am referring to is each professional's insurance (doctor, etc.) and the healthcare center's (this is their "errors and omissions" insurance, or professional liability insurance)

Customer:

thanks

Customer:

I have never worked with the "Justanswer" service before, so if I still have questions later what do I do?

William B. Esq. :

If you have further questions regarding this specific question, you can ask a follow up. If you have a different question (even regarding this topic), you are asked to post a separate question, and pay a separate fee (or become a subscription member, where you pay a monthly fee and may ask unlimited questions), we are a "pay for" service, so the service receives payment per question, and we as experts receive payment following your positive rating of our questions.


If you would like to post further questions for me specifically, you can begin your question by typing "For William B. Esq. Only ..." and a moderator will notify me.

Customer:

thanks. So when is my deadline for asking questions regarding this specific topic from you and not to get charged for it?

William B. Esq. :

You can ask questions from me at any time (I pick up "follow ups" on this question even after you rate my response). For additional questions, you can also reach me, I am usually able to pick up questions within 1-2 hours, if not sooner.

Customer:

thank you very much you have been very helpful

William B. Esq. :

You are welcome. Thank you for using the site, I really appreciate it. I hope that this matter resolves itself quickly (and that you are able to get a satisfactory resolution short of litigation).

Customer:

thanks

CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10,244
Experience: Civil litigation attorney for individuals and businesses.
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Customer reply replied 4 years ago


Hi William,


 


We were about to follow your advice on sending an official letter to the IVF company, but we received an eamil from the doctor on Friday.


In his eamil, without accepting his error, he offered to give us some embryos (with another cycle). He will bear the cost of the medical procedure, but we will have to pay for the shipment. He says he does it as a good gesture, and will only do it if we officially apologize for accusing them of bad service!


 


Does this make sense to you? Do you think it is an implicit acceptance of error from their side? But they want to get over it with minimum cost? If we apologize, will it mean we will have no leeway for any further action?


 


We are not too sure what we are supposed to do.


 


Thanks,

Dear Customer,

Almost every settlement agreement carries a disclaimer of liability by all parties. The request for a retraction of your poor review in exchange for the settlement is something you must weigh against the value of receiving the procedure with the renewed cycle.

I cannot recommend that you take one action over the other, but in general I do recommend that parties avoid litigation over a settlement where they receive the outcome that they desire. Litigation or litigated settlements are much more costly and can be emotionally draining than receiving a settlement up front. If the value of leaving a negative rating of this physician is of great importance to you, then you must weigh that against receiving the procedure quickly and with little to no further complications.

I do wish you the best in your decision. If you have any questions, please do ask and I will answer them to the best of my ability through the limitations of this forum.
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Customer reply replied 4 years ago

Hello Bill,


Thanks for the reply.


 


If we agree their offer, how can we gaurantee they will do a good job out of good will? They might just lie about it and do a bad job and say they did what they promised to do! We have no cotrol over it, really. Do we need to sign a new contract as if it is totally a new cycle?


 


Thanks

You can still bring a claim for negligence in the new proceeding. Just because you are waiving your claim for the negligence related to losing the first embryo does not mean you are waiving future claims related to his work on implanting the new ones.
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Customer reply replied 4 years ago

 


Hi Bill,


We followed your advice and sent a pre-litigation letter to the company around 20 days agao stating our demand. We gave them until Monday October 28th to reply. We sent our letter by registered mail as well and it shows that they received it. However, they have not replied to us yet.


Should we wait a few more days or take the next step? In the contract it states"...in the case of dispute both parties will go to arbitration". Should we do a follow up? Should we envoke the "arbitration" clause? They are not saying anything to our demand letter, so I am not sure if we can invoke this clause or not.


Thanks,

I am sorry to learn that they have not followed up to your demand for resolution.

In order to follow up you would need to follow through on the arbitration clause (it is your decision as to whether to do so immediately, or to give them a short opportunity to follow up late). Some litigators choose to push their deadlines as very firm and will invoke the terms of the arbitration clause immediately, while others want to wait in order to make an effort to conserve resources.

If you do go through with the arbitration demand, make sure you read the terms of your arbitration clause carefully to ensure that you meet the deadlines and requirements for filing the claim, and if it invokes the rules of a third body (such as the American Association of Arbitration, you will want to get a copy of those procedures as well: you can find the AAA rules here: http://www.adr.org/aaa/faces/rules;jsessionid=GtGQSyfJ0sxB83W636574JtKKlF1HTFTqSpNlWQQ0r0XFJgZTncr!-185899145?_afrLoop=2272256604877198&_afrWindowMode=0&_afrWindowId=null)
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Customer reply replied 4 years ago


Thanks for the propmt reply.


According to the contract, it follows the rules of the AAA of State of New York.


Can we consider this a dispute? they are not even bothering to answer to our demand so how can it even be a dispute?? Is it common not to have any replies at all?

This is a dispute. It is not uncommon to have a demand letter go ignored, but it is generally better for all parties concerned to engage in settlement prior to litigation/arbitration if at all possible, it reduces litigation costs and allows you to resolve the matter quickly.
CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10,244
Experience: Civil litigation attorney for individuals and businesses.
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CalAttorney2 and 87 other Legal Specialists are ready to help you
Ask your own question now
Customer reply replied 4 years ago


To be honest, we are not much into going into the legal routes, we rather make their bad service public to warn people about these kind of business. However, there is a clause in the contract saying ".....not to harm their name in anyway".


Going public with our story will breach this clause? If they ignore our demand, can we consider this contract and this clause void and go publich with our story?

If you choose to ignore the clause (breach the contract) and post something, the business still has a right to sue you, or more accurately in your situation, bring an arbitration claim against you, for the breach. You can assert their conduct in a cross-complaint against them, but you are not guaranteed a result from the arbitration, and there is a possibility that you can still be held liable.

I cannot help you with the evaluation of a likeliness of a claim, or potential damages award if you were to be pursue, you really will need a local attorney to help you do your case analysis, but this is the legal background you are working with.
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Customer reply replied 4 years ago


So from what I understand, the only thing we can do now is to ask for arbitration for the content of the demand letter we sent them 20 days ago?

That would be the way to enforce your rights. (remember, even if you do not go through with the arbitration - depending on your litigation aversion and preference - sometimes the actual arbitration demand can act to encourage the other party to engage in meaningful discussions).
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Customer reply replied 4 years ago


So the best course of action for now, is to send them an arbitration demand and wait and see what they say?


 


Is there a specific format we should follow for the letter?


 


Also, any idea how much cost we are talking about if we go this route?

Dear Customer,

My apologies, I just got called away by a client. I will get you a full response to your follow up as soon as possible.

Again, my apologies for the delay.
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Dear Customer,

My apologies for the delay.

If your arbitration is to be conducted through AAA, here is the arbitration demand form, and notes on how to file: http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175

If your arbitration is conducted through some other forum, you can follow their procedures (look online for your specific arbitration group), or if there is no specified forum, you can send a demand similar to the one above regarding arbitration to the opposing side - there should be an arbitrator or arbitration service specified in your contract, but if not, using AAA is commonly recognized.

If you decide to go through with arbitration, you should prepare to pay costs and fees that are roughly similar to going through civil litigation (arbitration initially was started to reduce fees, but as a practical planning matter, I would advise considering this for a good estimate for costs.

If you hire an attorney, your odds of success increase (they know the procedural and legal standards much better than a lay person, and can give you a significant edge - you will need to decide for yourself whether this edge is worth the expense).

Unfortunately, I do not have a good cost estimate for this type of arbitration - depending on the negotiating positions it may be very low cost (the parties can settle quickly), or high cost if there is a larger dispute.

I hope the above is helpful, and again, I apologize for the delay.
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Customer reply replied 4 years ago

thanks for the reply.


 


So we can hire an attorney if we go to arbitration?In this case, the attorney will represent us and we will not have to go to NY?

Retaining a NY lawyer will allow you to avoid most appearances and ensure that they are able to address all filing requirements in the matter. At most it is likely that you will be required to appear in a deposition (possible, in your situation it may not be required at all), for settlement purposes (again, possible, if the other side is interested in meaningful settlement negotiations it is not uncommon for the parties to be required to be there - however, if you grant your attorney full settlement authority it may be possible to avoid that as well), and finally for the arbitration itself.
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Customer reply replied 4 years ago


If we send an arbitration demand now without having seen a lawyer first, will it stilll minimize our chances?


 


I am saying this as what we will do will depend on how they will respond to our arbitration demand. If they show willingness to settle it before going to arbitration we may be OK. Of course if they do not respond then we will definitely need a lawyer?


 


Also, if they accept going to arbitration, will we have the right to change our mind and not to go to arbitration? Or if they accept our demand, it will mean we are legally obliged and we will have to go all the way?


 


Thanks,

Hiring an attorney is not necessary. As a strategy decision it may help, but it is certainly not required.

You do not have to go through with arbitration even if they accept your demand.
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Customer reply replied 4 years ago

Thanks.


For my own clarification again: Should we tell them we are going ahead with the arbitration first, and then send a request to AAA in NY?

You can send them a "pre-arbitration" demand - let them know that if they do not engage in negotiations you will send a demand through AAA (this is commonly done, many litigants will often attach a copy of the proposed complaint they will send if the other party does not engage in negotiations to reinforce their demand).

Alternatively, you can take a more aggressive approach and simply initiate the arbitration process with AAA (you will need to serve the other side with the AAA notice - remember, you will likely need to pay a fee to AAA to start this process).
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Customer reply replied 4 years ago

Is there a specific format for "pre-arbitration" letter?

No, there is no formal format or required content. Usually it is a formal letter that describes the injury, the claimant's legal rights, the demanded relief, the threat to go to arbitration or litigation, a deadline to do so, and a specific statement to either comply with the demand.

But the format is entirely up to you, and if there is a different format that would work better for you or a strategy that appears more appropriate for your situation there is no improper form.
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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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