Undisciplinary
Undisciplinary
Good Take/Bad Take: Monash IVF $56 million settlement deal
**The below is AI generated**
What if bringing cake to work is as harmful as passive smoking? Join us for a thought-provoking exploration with our special guest, Sarah Attinger, as she shares her innovative approach to workplace treats. We dive deep into the public health implications of these sweet gestures and navigate a moral dilemma involving found cigarettes, debating the ethics of discarding them versus giving them to a smoker. Sarah, a research assistant at Sydney University and Macquarie, offers her unique perspective on these everyday ethical quandaries.
Moving from the breakroom to the courtroom, we dissect the $56 million settlement involving Monash IVF and the fallout from inaccurate genetic testing. This gripping chapter uncovers allegations against Repromed, a Monash IVF subsidiary, accused of forging patient signatures and falsifying clinical trial results. Despite the settlement, Monash IVF did not admit liability. We discuss the wider implications of non-invasive pre-implantation genetic testing and consider the need for stricter regulations in the fertility industry, shedding light on the complexities and emotional toll of such cases.
In our final discussion, we tackle the intricate world of reproductive medicine ethics, examining everything from procreative beneficence to the legal repercussions of the Monash IVF settlement. Sarah helps us understand the philosophical and commercial aspects of embryo selection, emphasizing the ethical tightrope healthcare providers must walk. We also delve into the contentious issue of league tables and how they impact embryo positioning and development. This episode promises to be a captivating journey through some of the most pressing issues in healthcare and public health today.
Undisciplinary - a podcast that talks across the boundaries of history, ethics, and the politics of health.
Follow us on Twitter @undisciplinary_ or email questions for "mailbag episodes" undisciplinarypod@gmail.com
Undisciplinary is recorded on the unceded lands of the Wadawurrung peoples of the Kulin Nation in Geelong and the Gadigal peoples of the Eora Nation in Sydney. We pay our respects to Elders, past and present.
Speaker 2:Don't smoke.
Speaker 3:All issues come down to smoking, and just don't smoke. Concerns about an encouraging sexual promiscuity are unfounded. Just how much free help can people receive from the government after not pairing office?
Speaker 1:cake to passive smoking. So, yeah, this will be like it's a short discussion. I think this will go under the. I don't know if you've listened to this podcast before. It's okay if you haven't. But we do have a section called Good Take, bad Take, and I think this could come under the good take, bad take part of. So we'll be talking about some serious things shortly, but you know, one of I think the issues that started off the good take, bad take segment was this idea of bringing cake to work. A public health professor in England said that bringing cake to work was unhelpful, almost equivalent to passive smoking. So, sarah, we haven't even introduced you yet, but would you bring cake to work? Do you think that's a good?
Speaker 2:idea Cake to work to work. Do you think that's a good?
Speaker 1:idea take to work on an occasion of here is a morning tea, we're having cake I would.
Speaker 2:I would bring it to work, but I I don't think I would, um, you know, make a morning tea of it or necessarily take it around to people and offering it. I think I would. Would you like? Hold them down and force them to eat it no, I think I'd prefer to cut it up into convenient pieces and leave it in a communal kitchen with a small note about any allergens and then, uh, return, maybe in a couple of hours and hopefully it had disappeared. That would be my approach to cake in the workplace.
Speaker 1:So not just leaving a pack of cigarettes on the counter and saying help yourself.
Speaker 3:Yeah Well, so that's interesting. I wonder if you had a lighter there, would that be different If you just left a pack of cigarettes without the means to smoke it? Because who has a lighter these days? I was just thinking. You know, the idea of offering the cake around might be different from leaving the cake to get taken. I took cake to work just yesterday timely.
Speaker 1:What kind of cake was it?
Speaker 3:Well, it wasn't actually cake. It was biscuits, dark chocolate and tahini Hipster Delicious cake. It was biscuits, dark chocolate and and tahini hipster delicious, uh. But yeah, no, I made no notes about allergens and then I did think later huh hope nobody's allergic to sesame or whatever.
Speaker 2:But I figure, if you're allergic to something, you say to the person what's in these, and I also feel like sometimes, uh, if you do an allergen statement, I feel so much more pressure because now I've sort of gone out of my way to take on this sort of responsibility. What if I get it wrong? What? If I don't think of something that somebody could you forgot the eggs I forgot the eggs um, so that you sort of take on this extra responsibility.
Speaker 1:Yeah, that's true. I think it makes you more culpable because you've already sort of indicated. You know you've put a warning out there for the nut people that there's nuts in here, but you forget the dairy or the eggs and, yeah, lulled them into a slump.
Speaker 3:Next thing you know someone's deathly ill.
Speaker 1:So yeah, I mean, that's certainly a high-stakes moral dilemma in our society. Another one that I just thought of in relation to smoking. I had a friend, I think, on Twitter or Facebook, was saying that they had found a pack of cigarettes, a full pack of cigarettes.
Speaker 3:Cellophane.
Speaker 1:I don't know to that extent Should they throw them in the bin or should they give them to somebody who they know smokes, Considering the cost of cigarettes these days?
Speaker 3:Yeah, that's a no-brainer.
Speaker 1:You think? What do you think, Sarah?
Speaker 2:Would I give them to someone who I know who smokes, or would I leave them behind? Were those the options?
Speaker 1:No, you'd throw them in the bin.
Speaker 3:So you found them somewhere, let's say you found them in a park.
Speaker 2:Mm-hmm, mm-hmm, yes, yes, do I want to contribute to littering or contribute to something?
Speaker 1:Well, no, you can throw them in the bin. You can solve the littering problem.
Speaker 2:Oh, I mean, if I were to, which was very simple, just to continue on my merry way. That's a good. Yeah, you don't take up the burden of what to do. But that then makes me perhaps complicit in littering.
Speaker 1:Yeah, kids could find it.
Speaker 2:Kids could find it. That's very true. I would probably out of those two options. I would probably put them in the bin. But I will admit that I'm probably influenced by the fact that, probably coincidentally, I don't know that many smokers.
Speaker 1:Yes, well, they're hard to find these days.
Speaker 3:Yeah, I'm going to retract my statement. If they were sitting in a park, I'd leave them there. Then if I was forced to pick them up, this is quite a trolley problem thing we've got going on here If I was forced to pick them up, I would give them to someone.
Speaker 1:I think I'd just smoke them. No, I wouldn't, I would give them to somebody, I think. I think that's what I'd do, and we haven't actually introduced Sarah in depth. Jane, would you like to introduce Sarah? Oh, please.
Speaker 3:So Chris has totally, totally put me on, so I don't have an official bio for Sarah, but Sarah is lovely and her family name is Attinger and Sarah works as an RA at Sydney University and also Macquarie, I believe. Sarah, yeah, yeah, and please feel free to fill in the gaps.
Speaker 1:Well, I guess sorry, Sarah, I know that was directed to you, but also more context. So what we're going to be talking about is, very briefly, is the Monash IVF settlement of $56 million, and so Sarah and I were working on a project together which has, I guess, wrapped up we might believe there may be some further publications coming out of it, but I believe for all intents and purposes it has finished which was looking at commercial influences in the Australian IVF industry and fertility industry in general, and so that's where Sarah and I got to know each other. Sarah, perhaps you want to talk a little bit briefly about your role, what you were looking at in particular, and also, we should note, we are all talking as individuals here. I'm talking on my own behalf and Sarah is also talking for herself. No one is representing the rest of the draft committee or anything like that.
Speaker 2:Yeah. So on that project looking at commercial influences on assistive reproductive technology in Australia, I had two roles. I came on initially to conduct some qualitative research interviews with professional stakeholders people working in the industry, clinicians, regulators, consumer advocates and then, because I have legal training, I also assisted with the sort of legal analysis that we did on commercial and corporate ARP.
Speaker 1:Yeah, so over the evening, or I guess yesterday afternoon I believe, the settlement was reached. Monash RBF has settled this class action lawsuit for $56 million and there were I don't have the exact 700-person class action lawsuit, so 700 people involved for this $56 million settlement. But that has also meant with the settlement that there has been a disclosure and also, I believe Monash IBF have not admitted fault in what they did and I guess you know for context, it um was allegations of inaccurate genetic testing that destroyed uh potentially viable embryos um. So through uh and feel free to jump in to fill in any uh pertinent gaps here but, yeah, so over, I believe, a period from um around 2020 to 2021 um there had been using a particular genetic test um and that this had resulted in some false positives uh that then resulted in these embryos being destroyed. There was also a case or instances of a company that was a subsidiary of Monash IVF signing consent forms on behalf of patients or falsely signing these consent forms. That also, I guess, was part of the class action suit. Can?
Speaker 3:you talk a little bit, Chris, about what those consent forms were for. What was the context of that.
Speaker 1:Yes, the context for that was so Repromed which was a brand operated by Monash IVF. They were this is according to the ABC News story deliberately doctored the results of a clinical trial. So some of these embryos were going into a trial. They deliberately doctored the results of the clinical trial and forged patient signatures on consent form. But Monash IVF because in this in the context of the settlement did not admit fault to them and that's what the ABC is reporting. Is there anything pertinent that I'm missing here, sarah?
Speaker 2:I think, yeah, you covered off the bulk of it.
Speaker 2:Really, I think in the settlement that was announced yesterday, monash IVF stated that they made no admission of liability um, which I think is is maybe slightly different from fault um, but I believe that they have previously admitted and uh uh that the that the testing was inaccurate, so that wasn't going to be at issue in the trial work to go ahead.
Speaker 2:It was more whether it came under their duties and responsibilities to patients and whether they were then liable for the damages, et cetera. And, as you sort of said, there are some quite serious allegations about intentional doctoring of results and fraudulent signing of consent forms that came out in the ABC reporting. But we don't, I mean, and I haven't said there might be detail out there, but I haven't seen any sort of publicly available information about the sort of details of those allegations. Well, I suppose I just just speaking from what I know, the sort of focus of the class action was about the, a particular form of non-in of pre-implantation genetic testing, and the sort of mainstay of the allegations were that patients weren't sufficiently warned about the risks associated with having that test and relative to other tests that were available, and also that in conducting and providing the testing, monash IVF and the sort of related organisations that offer the test were made a sort of failure in their duties of care and or skill to patients.
Speaker 1:So it seems there's two.
Speaker 3:Yeah, you go Just a couple of detail follow-up things there. Yeah, you go, just a couple of detail follow-up um things there. So you said about um, excuse me, the risk of those tests relative to the risk of other tests. What sorts of risks do you mean?
Speaker 2:uh, my understanding is that, um, the non-invasive um version of this, of this, well, the non-invasive version of this, well, the non-invasive test that was found to be inaccurate, or was alleged to be inaccurate, was a test that was seen as an innovation of an existing test, which involved biopsy. So this version was supposed to avoid biopsy. So this version was was supposed to avoid biopsy and um, the sort of testing and results that came out, um, all that were produced in support of the test were making comparisons to the pre-existing biopsy based version of the test.
Speaker 3:You You'd think that the risks associated with biopsy would also lead to pregnancy loss right or to loss of viability of an embryo. I'm always just interested in these things where they're potentially comparing different kinds of risks or different kinds of bad things that aren't necessarily you know that they may have the same outcomes, but where they're not easily comparable, and I wonder if this is one of those sorts of things.
Speaker 2:Yes, yeah, that's an interesting point and I mean I'm not a scientist by any means and you know, somebody with embryology expertise would have a better idea than me. If you're sort of told about a test that is sort of less invasive and you're sort of told, as has been alleged, that the tests are sort of almost equally as good, that how that might play out in your mind and the sort of power of being told that something is less invasive might be particularly attractive or valuable to some people Totally.
Speaker 1:So responses to this seem to be like two.
Speaker 1:So there are lots of responses, clearly, but two of the main ones that are interesting to hear your perspective on and talk about, one being, I guess, this uh settlement, and so some people expressing disappointment or that you know it didn't go to trial because now we don't know a lot of information about what actually was going on with Monash IVF.
Speaker 1:So that seems to be one of the responses. Um, really, it would have been, I'm not sure if this had been on trial for public disclosure, but I guess the counterpoint to that is the pressure and ordeal put on the people involved in the class action lawsuit. So I'd be interested in your perspective on that. And then the other one being the sense that it sort of has sent a message to the industry that somehow this, this is also part of the profit-driven, commercial nature of the industry, rather than just, I guess, an unfortunate medical errors or mishaps, but this is indicative of something systemically wrong and with the industry, and that this should be a call for more kind of regulation. So yeah, what's your perspective on both of those responses?
Speaker 2:yeah, yeah, it's quite interesting because there's sort of two or maybe three sort of ways of looking at this. There's what it might tell us about, or questions it raises about, the IVF industry in Australia which, as we know, is very commercialised and corporatised and dominated by for-profit organisations, and then, sort of off the back of that, what does that tell us? Or what questions does that raise about commercial and corporate medicine more generally? But to go to your first point, Chris, about class actions, which I have an interest in and have worked on class actions before, they're quite an interesting beast really because there are real sort of pros and cons to them.
Speaker 2:On the one hand, you've got a number of aggrieved persons who have similar claims and litigation is really expensive. So going up against an organisation on your own, a lot of people might not do that and it allows people to pursue claims that they might not otherwise or might be really difficult to do on their own. And from the perspective of you know the court system, it's a lot more efficient to have these claims run together. Or, you know, some people getting to the point of settlement might really be a relief, might provide closure and might get them something that they might not otherwise had had if the class action wasn't run.
Speaker 2:But I suppose some of the downsides are that the kinds of issues that you would litigate in a class action are quite narrow and class actions often settle. And that's not necessarily a bad thing because litigation is so expensive and courts encourage parties to mediate and to try and come to some sort of agreement or settlement. But at the same time it does mean that a lot of the kind of matters that were at issue won't be sort of won't go to trial and we won't get much more detail I don't think about what actually happened and we won't get to sort of look at some of the evidence about what happened. And that would be important for telling us not only what happened but how we might be able to prevent something like this happening again and to sort of be able to put it more in sort of a broader regulatory, from a broader perspective on regulation, how the checks and balances that we have are working in practice and how well they may or may not be working.
Speaker 1:Jane, did you have something?
Speaker 3:Yeah, I got a whole lot of geek questions about well questions and comments about screening and accuracy. Will I be jumping the gun if I? No? No, it's really interesting to me the idea. I mean, I don't know the details of this case or anything about it really, but the idea that we have that screening tests are accurate um isn't necessarily the case. So I just in a quick google just then uh saw that this non-invasive um test only uh produce the same result as the, as the invasive, which I assume is the, the biopsy gold standard uh 75 to% of the time and I thought, yeah, that's not bad. So inaccuracy is a really flexible term, I think, when it comes to screening.
Speaker 3:So screening is about and I think this is where it's different in this scenario, because screening is about um trying to understand whether or not something's at greater risk of of occurring um, and so normally, if you are, then if a screening test tells you that you're at greater risk of something, then you would seek further testing. Right, you'd get diagnostic testing done to better understand. Because screening is screening always produces heaps of false positives and false negatives and all that sort of thing. That's just part of you know, it's a fairly blunt instrument, but with this one. It's kind of screening and diagnosis at the same time. Which is you?
Speaker 3:You know, once you do this test and the assessment I guess, is that that, a, that a, um, a fertilized egg, I suppose, is non-viable, then not much you can do about it. Right, you're not going to seek further testing, presumably you're gonna. You're gonna to not use that thing. So it does seem a bit different. I'm wondering if, when we're regularly doing screening tests, which lots of us do in a bunch of different ways for different things, it feels somehow different to this when the stakes are so much higher. With assistive reproduction, you've already spent heaps of money, you've got generally a huge emotional involvement, which is such a weak way of putting it, but you know what I mean. You're really invested in this thing working out, I guess I'm. I'm wondering what you guys think about the idea of screening tests. Is just having a much, a much more important or a much kind of heavier place, um, than other kinds of screening might do when it comes to IVF?
Speaker 1:you mean in comparison to, say, cancer screening, or you know?
Speaker 3:in comparison to you?
Speaker 1:yeah, or you know screening that's going to lead to further diagnostic tests, whereas this screening seems to, as you said, lead to this more binary choice yeah, like you know, presumably your kids got their eyesight screened.
Speaker 3:You know you got all of these really quite um, innocuous seeming screen population screening programs that happen all the time. This is another kind of screening program that presumably you can opt into, as you can with any screening program none of it's compulsory but that this one seems like more of a big deal. Like, as far as I know, we don't have class action suits about, I don't know pap tests and mammograms, yeah well, I don't know what Sarah thinks on this, Of course.
Speaker 1:how would I know what Sarah thinks on this?
Speaker 3:Because you were each speaking for yourself.
Speaker 2:Yeah, yeah, yeah, interesting. I, to be honest, I haven't thought too much about the distinctions between uh screening and testing. Um, I think, chris, you sort of touched on an important point, that it, at least in this context, the, the testing resulted in this binary of viable or non-viable, and in IVF we're talking about embryos, and calling an embryo non-viable leads to, or can lead to, the consequence of that being destroyed, and individuals in IVF will often have a limited number of embryos that they can produce, sort of like a finite number of well, there's finite resources or finite number of chances that they get. So I think part of the narrative around this case has been that it might have led to some people discarding their you know, some of their last chances to conceive children based on inaccurate testing.
Speaker 1:Yes, and I guess you know this is going to be some broad brushes, but I guess, within the context of reproductive medicine and fertility clinics and the idea of these sorts of tests, you know, I think the imperative behind them is it can be a variety of things, you know, on the one hand it can be the sort of the Julian Sevalescu Gattaca. We've got to sort of try to find the best or the most optimal embryo. This procreative beneficence kind of thing will be. We should try to. If we can distinguish a better embryo among four, then we should put the best in. I'm not sure whether that that's what's going on here. I'm just talking about sort of broadly, these, these technologies, um, and, and then I think there's also the related to that, the well, if there are any defects or potential disabilities, you know. So you know, for some people they refuse to have these kinds of diagnostic tests and have all the way back to amniocentesis because it's like, well, we're going to carry the fetus regardless of these tests, so why do them? So why do them? And then I think a third option and this might come to the sort of commercial imperatives is the can these tests show what embryo is going to be viable in the sense of, you know, not having any kind of impairment but is going to come to a live birth or have the best chances to that, which then plays into both the clinic's statistics and success rates and those sorts of questions as well, as obviously the patient wants to have, or the client, depending on where we land on the patient-client distinction in this area. Uh, you know these are these sort of tests being used to, um, I guess, further the chances or at least try to quantify the chances of an embryo taking and coming to life term. But yeah, I don't know the ins and outs of this particular test in this moment. But I think we should wrap up with just one last big comment or question. So the lawyer for Margoliet Injury Lawyers, the managing principal, michelle Margoliet, probably not pronouncing her surname correctly said and this is quoted in the ABC article, or one of the ABC articles there are a few now saying the settlement sent a clear message to the healthcare industry. And then this is the quote, and I think that raises some interesting philosophical and legal questions. So no amount of money can ever fully compensate for the grief and mental anguish, but this settlement does send a clear message to all corporate giants putting profits before their patients, that they will be found out and there will be significant consequences for such conduct.
Speaker 1:And then to continue, an embryo is not a mere inanimate object. An embryo is a chance at having a family. The impact of destroying that chance is beyond devastating and causes real and tangible harm. And I think that last, and this comes back to the previous episode we had on embryo adoption and and sort of personhood around these things, like I guess it didn't go to court so no law could be or case law could be developed from this. But it would be interesting, you know, with these.
Speaker 1:You know, an embryo for some people is a bunch of cells and it is an inanimate object, but for these people it is a chance at having a family. And it sort of plays then into these more sort of potential arguments about what the embryo is. And it seems in some ways the embryo can. Can the embryo be both things, both an inanimate object and a potential family? But yeah, sarah, I don't know if you have any reflections either on that specific question or on this sort of, because yeah, this lawyer, ms Margulit, is certainly saying that this is sending a message to the corporate giants and putting profits before their patients. Argument.
Speaker 2:Yeah, I think there's probably two parts of that. The first is sort of about um, how you um can, yeah, the sort of the perspective on the embryo and how you can um go about, or how you frame the embryo sort of influences how you think about you might go about um, uh, you know, offering a calculating compensation or figuring out how you're going to ameliorate the situation um. And then your second point about this sort of idea of of patience and profits, um, which I'll maybe I'll come back to From sort of a legal point of view. I think what would have been good about this case had it proceeded to trial is that it would have tested a couple of aspects of our legal system in the healthcare context which haven't really been tested before um, and those are sort of obligations under the consumer law as well as damages for what's referred to as psychiatric injury, um and Um, and I think um that just sort of raises this broader question about how well equipped um the legal system might be to um manage those kinds of consequences. Um, for a lot of people the MREO does have this sort of special status and those words that you sort of repeated from the lawyer in this case are quite emotive and does at the same time. There are other areas of legal thought where things like embryos and other sort of human tissues are thought about in terms of property or other sorts of legal structures. So it's certainly something that I think is grappled with within the law, as well as sort of having these more sort of broader philosophical questions that it raises.
Speaker 2:And then to sort of the other point about sending a message to corporations and this idea of putting patients before profits. I think it really raises some really interesting questions about regulation in not only commercial ART but also commercial medicine. I mean, in this case it sort of really raised the question of whether, you know, commercial imperatives might be leading clinics to rush processes of research and innovation and that might be leading them to rush processes of research and innovation and that might be leading them to sort of mislead patients about harms and benefits of those interventions, as well as broader questions about in industries where they're very profit driven and they're very competitive and that competition maybe has upsides. Does it also have downsides if that competition becomes, you know, too ruthless and there's lots of vested interests involved? So yeah, it's a really interesting question and it's quite an interesting regulatory problem as well is if this case suggests that commercial organisations are putting profits before patients, how do you regulate that?
Speaker 2:And myself and some of my colleagues have done some comparative work between Australia and the UK thinking about this question. And it's difficult when we have medicine and healthcare sectors that are being more commercialised and corporatised and financialised and privatised At the same time. Regulation in healthcare and medicine a lot of the thinking is typically focused around the doctor-patient relationship and interaction and this sort of quite different model of how healthcare is done, and perhaps you could argue that it doesn't fully seem to capture the really quite substantial and influential involvement of these sort of large for-profit non-medical actors.
Speaker 1:Yeah, and also the decision makers in those organisations.
Speaker 3:Well.
Speaker 1:I think that sometimes, you know, when we talk about corporate medicine, it's not just the fact that, oh, there are doctors who are, you know, the doctors may be separate from these financial decisions and the drivers for them may be coming from the finance department or the CEO of it is not just that universities shifting their direction to sort of for-profit models and seeing students as clients, but that also the people who are deciding, you know, the university councils, for instance, are stacked with business leaders quote-unquote business leaders, and you know they think in a very different way.
Speaker 2:Yeah, I also think in this case and this is sort of relevant to class actions more generally a lot of class actions are pursued against large organisations because you know, you often only litigate against somebody who has the kind of who basically has the money to sort of not only has like who you think has the liability, but also would be able to, you know, pay the damages that you're seeking. But there's often a lot of reputation at stake and it's one of the sort of mechanisms that, um uh, can encourage parties to settle. So I guess a question that I sort of have in my mind is are the you know, the reputational impacts or ramifications going to have some regulatory effect on the IVF players? I'm not sure, but then there's also lots of questions about transparency and, as I sort of said earlier, being able to assess what happened and how things sort of seem to go astray, whether it was preventable or not. Yeah, I lost my train of thought there a little bit, but that's what happens to all of us.
Speaker 1:Maybe that means it's time to uh go and eat some of that cake or smoke those cigarettes.
Speaker 3:Jane, I don't know if you had a final question no, as a final thought, I guess I was reflecting that you know you gave the the options there of an embryo being a collection of cells or a chance at starting a family, but it's also a sort of the business unit, I suppose, for something like monash it's, it's the um, it's the thing they get, it's the thing that kind of goes on the ledger, goes on their what do you call it? The league table gets them up there.
Speaker 3:So it's not neutral in any way. You know there are so many different ways that embryos are depending on your positioning.
Speaker 1:Well, thank you very much, Sarah. It's been a pleasure for us and certainly informative, and interesting.
Speaker 2:Yeah, oh, my pleasure. Thanks for having me. Bye.