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Insurer Denies Coverage For Fertility Doctor Facing Lawsuit


The following article is an update on a case we’ve posted about before. Read on for more information about how the case has proceeded thus far.

A Canadian fertility doctor being sued by an American egg donor has been denied insurance coverage because the suit alleges he has contravened the Assisted Human Reproduction Act.

The egg donor — Kylee Gilman, then of Jacksonville, Florida — alleges she suffered a stroke in November 2011, one day after 45 eggs were removed from her ovaries at the CReATe clinic in Toronto, Ontario. She is suing Dr. Edward Ryan of the Toronto West Fertility Center, a satellite of CReATe, alleging that he stimulated too many eggs. She also claims that, once she returned home and began to feel ill, Ryan gave her bad medical advice. Furthermore, alleges Gilman, Ryan’s business model, which involves allowing patients to use paid donors supplied through US-based agencies, was explicitly designed to circumvent Canadian law.

This last unproven allegation has prompted his insurer, Elliott Special Risks, to deny Ryan legal protection. (Because American donors are nonresident patients, doctors caring for them are not covered by the Canadian Medical Protective Association.) The insurer informed Ryan in a letter dated June 18, 2013 that, due to an exclusion in the policy that comes into effect when a law is violated, “based on the allegations in the Complaint and information obtained to date, we regret that the Policy provides no coverage for any of the claims set out in the proceeding, and we have no duty to defend Dr. Ryan.”

He is being defended, instead, by an attorney in Florida, though he intends to challenge Elliott Special Risks. The insurer’s president, Mario Sousa, declined comment, saying it is company policy not to discuss situations pertaining to their clients.

According to the Assisted Human Reproduction Act, it is illegal to purchase human eggs in Canada. As a consequence, many Canadians have turned to US egg donor agencies, which arrange for American donors to fly into Canada, donate at Canadian clinics and then be paid outside the country. This was the case with Gilman. While recuperating in a Florida hospital, she received US$5500 from Giving Hope Inc., an agency with headquarters in Dallas, Texas. It is estimated that a few hundred such donations take place every year.

Despite the popularity of the practice, Health Canada has never clarified whether it’s legal to use foreign brokers to exchange money outside the country for eggs retrieved locally. The issue has been hotly debated ever since the Assisted Human Reproduction Act was passed in 2004. “It would be very nice if Health Canada would make a clear statement,” says Dr. Matt Gysler, president of the Canadian Fertility and Andrology Society. “Tell us in black and white, in simple language, what it is we can do and can’t do.”

In the absence of clarity, individual doctors have been left to rely on the interpretations of individual lawyers. According to Toronto fertility lawyer Sherry Levitan, Dr. Ryan did nothing wrong. “He did not act outside of the law,” she says. “He did not purchase the eggs.”

But legal interpretations differ. “My lawyer says that any transaction performed in Canada needs to abide by Canadian law,” says Gysler, who is medical director of the ISIS Regional Fertility Centre in Mississauga, Ontario. As a consequence, his clinic does not work with patients who pay egg donors through foreign agencies.

The insurer’s action is bound to have a chilling effect on physicians doing this work, says Colleen Flood, Canada Research Chair in Health Law and Policy at the University of Toronto. This in turn will make it even more difficult for families who want to use donors, says Kelly Jordan, a Toronto fertility lawyer.

The lawsuit was filed in March in Florida. Despite signed agreements between Gilman and both the Toronto West Fertility Centre and CReATe, which stipulate that any disputes must be settled in Ontario, Gilman’s lawyer, Rufus Pennington, is arguing that the case should be heard in Florida. By coincidence, Ryan travelled to Florida for a holiday on the same day Gilman returned home after her retrieval . In the hours leading up to her stroke, according to Gilman, Ryan provided medical advice by cellphone to Gilman. “By giving medical advice to his patient while he was physically located within the state of Florida,” says Pennington, “Dr. Ryan subjected himself to the jurisdiction of the Florida courts.”

According to court filings, Ryan only learned of his insurer’s decision not to defend him when he was served with a Motion for Default for failing to respond to the lawsuit in a timely fashion. The insurer had initially assigned a lawyer to his case but later withdrew him. A Florida judge will now decide whether to set the default aside and allow the case to proceed, as Ryan’s lawyer has requested.


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