There is an interesting case out of Harvard where OBGYN professor and founder of Boston IVF, Dr. Merle Berger, is being sued for allegedly inseminating a woman with his own sperm. It is reminiscent of the case of Dr. Donald Cline who was accused of impregnating dozens of women with his own sperm.
The complaint below alleged three counts (Intentional misrepresentation – fraud; Fraudulent Concealment; Violation of Massachusetts Consumer Protection Law).
The interesting omission is battery in light of the lack of consent for using his own sperm as well as other possible tort claims. There is also an omission of contractual claims. The reason may be the running of the statute of limitations. The birth of plaintiff Sarah Depoian’s child, Carolyn Bester, occurred in 1981.
Depoian and her husband went to receive the treatment in 1980 and Berger allegedly promised “to perform an insemination using the sperm of a medical resident who resembled her husband, who did not know her, and whom she did not know. With that understanding, Ms. Depoian consented to the insemination.”
Later Bester, 42, used a home DNA test earlier this year and found that Dr. Berger was her biological father.
If true, that test could remove a critical factual dispute. There appears no consent for Berger to use his own sperm and the DNA would make the allegation factually unassailable. That would place greater importance on threshold claims given the passage of time as well as damages discussed below. Dr. Berger could also claim that the source of the sperm was not guaranteed or clearly laid out.
What was interesting was this paragraph which objected that things might have been different if the violation was known at the time . . . for Berger:
“Dr. Berger’s life would have been entirely different had he admitted his assault on Ms. Depoian at the time. Dr. Berger went on to become one of the country’s most prominent fertility doctors. He founded one of the nation’s largest fertility clinics, Boston IVF, and was an Associate Clinical Professor at Harvard Medical School. He should have known better—and, in fact, did know better—than to abuse his patient, Sarah Depoian, as described in this Complaint.”
The passage of time in bringing the Complaint is a fascinating complication, but there is also the question of damages if Berger is found liable. This is how the injuries are alleged:
“Ms. Depoian was greatly injured as a result of Dr. Berger’s unfair and deceptive conduct. 64. Learning of Dr. Berger’s deception was and is greatly traumatic for Ms. Depoian. She has suffered significant mental anguish, anxiety, stress from physical violations, sleep disturbances including nightmares, and difficulty in her marital relations. She suffers mistrust of the medical profession. There are days when she is so overwhelmed with anguish, stress and anxiety, that she is unable to function normally.”
Calculating the damages on such a basis could be challenging. After all, many people pay to have doctors or accomplished individuals as donors. Here the donor was supposed to be a medical resident but instead was an actual Harvard doctor and professor. However, the couple sought the specific physical attributes of the resident. There is also the injury associated with the deception itself.
Depoian is asking for double or treble damages allowed under law for these claims.
Here is the complaint: Depoian Complaint
