updated 8/4/2004 3:08:04 PM ET 2004-08-04T19:08:04

A California woman has been awarded $1 million in damages to settle a malpractice lawsuit against a fertility specialist who accidentally implanted her with the wrong embryos, then hid the mistake until her baby was 10 months old, her lawyer said.

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The embryos Susan Buchweitz received at a San Francisco clinic were intended for a married couple who underwent in-vitro fertilization the same day using the husband’s sperm and a different egg donor. The couple is now seeking custody of the 3-year-old son Buchweitz has raised since birth.

'The whole thing is creepy'
“The whole thing is creepy,” said Nancy Hersh, Buchweitz’s lawyer in her civil suit against the clinic, its lead doctor and its former embryologist.

The settlement, made public Monday, arose from allegations that both the infertility doctor, Steven L. Katz, and Imam El-Danasouri, the scientist who incubated the embryos and allegedly provided the wrong ones, knew of the mix-up within minutes of Buchweitz’s June 15, 2000, in-vitro fertilization procedure.

According to court papers, they concluded it would be better to let nature take its course rather than disclose the error, possibly causing the patient to end the pregnancy. Several experts summoned by Katz’s defense in pretrial testimony agreed with that decision.

The couple who provided the embryos also underwent an in-vitro procedure using the same set, and the wife gave birth to a child 10 days after Buchweitz did, making her son and the couple’s daughter siblings.

Katz’s attorney, Robert Slattery, said Tuesday that his client figured that at age 47 and after two years of trying unsuccessfully to get pregnant, Buchweitz faced long odds with her in-vitro procedure. He worried that if he told her about the switched embryos, he would have to tell the married couple, too, thereby setting the scenario for a custody skirmish.

“The dilemma he had was that if he told somebody, he had to tell everybody, and somebody would be harmed as a result of it,” Slattery said.

Couples to share custody temporarily
Buchweitz learned about the switched embryos in December 2001 after the Medical Board of California, acting on an anonymous complaint from a former worker at Katz’s clinic, contacted her and said there had been a mistake with her in-vitro procedure. In response to her panicked call, Katz and El-Danasouri went to her home and revealed what had happened.

They also notified the couple, who are unnamed in court papers and filed their own fraud-and-negligence case against Katz and El-Danasouri. The couple, meanwhile, is seeking permanent custody of Buchweitz’s son.

A family court judge has granted Buchweitz temporary custody of the little boy and the husband, as the biological father, twice-weekly custody. The issue of how the couple and Buchweitz will divide his care in the future is scheduled to be decided in October, Hersh said.

“It’s so ironic the court would ask people who don’t know each other to co-parent,” Buchweitz said. “There is no psychology book that says how to do this.”

Katz, who is being investigated by the Medical Board of California but continues to operate his fertility clinic, indirectly offered his own thoughts in an article published last year in the journal of the San Francisco Medical Society.

“Science can move ahead very quickly,” he wrote. “However, ethical standards don’t often develop as rapidly.”

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