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B.F. v. Reproductive Medicine Associates of New York, LLP

New York Court of Appeals

December 14, 2017

B.F., et al., Respondents,
Reproductive Medicine Associates of New York, LLP, et al., Appellants. Marie Dennehy, et al., Respondents,
Alan B. Copperman, M.D., et al., Appellants.

          Caryn L. Lilling, for appellants Reproductive Medicine Associates of New York, LLP et al., Nancy Ledy-Gurren, for appellant Copperman., Wendy R. Fleishman, for respondents.

          Caryn L. Lilling, for appellants Reproductive Medicine Associates of New York, LLP et al., Nancy Ledy-Gurren, for appellant Copperman., James N. LiCalzi, for respondents.

          DiFIORE, Chief Judge.

         In Becker v Schwartz, this Court recognized a new cause of action permitting parents to recover the extraordinary expenses incurred to care for a disabled infant who, but for a physician's negligent failure to detect or advise on the risks of impairment, would not have been born (46 N.Y.2d 401, 410 [1978]). The issue in these related appeals is whether the statute of limitations for such an extraordinary expenses claim runs from the date of the alleged negligence or the date of birth. We hold that it is the latter.


         The salient allegations in both cases, which we must assume to be true in light of their procedural posture, are the same. Two couples - the Dennehys and the Farbers - sought in vitro fertilization (IVF) treatment from defendant Dr. Alan Copperman at defendant Reproductive Medicine Associates of New York, LLP (RMA). The couple discussed the possibility of using an egg donor. Copperman informed each couple that RMA screened donor candidates for all known genetic conditions for which testing is available, but did not state which conditions were included in the screening. The couple then matched with an anonymous egg donor and, after consenting to the IVF procedure, the plaintiff mother was implanted with fertilized embryos using the donor eggs. Pregnancy was confirmed and the couple was discharged to their obstetrician/gynecologist. Each plaintiff mother later gave birth without complications - the Dennehys had a single infant and the Farbers had twins. Following birth, Copperman learned that the egg donor had tested positive for the Fragile X trait, a chromosomal abnormality that can result in intellectual disability and other deficits. He informed the couples within one year of the births, and testing later confirmed that the Dennehys' infant and one of the Farbers' twins had the full Fragile X mutation.

         The parents commenced separate lawsuits against Copperman and RMA [1]. As relevant here, the complaints allege, in essence, that defendants failed to timely screen the egg donor for the Fragile X mutation or to notify plaintiffs that they did not screen for this trait. The parents contend these negligent acts or omissions caused them to consent to the IVF procedure and go forward with pregnancy, resulting in the parents incurring extraordinary expenses to care for and treat a child with a disability. Defendants moved to dismiss both complaints under CPLR 3211 (a) (5) and (a) (7), contending, among other things, that the extraordinary expenses claim is time-barred by CPLR 214-a, which provides that a 2½-year statute of limitations for medical malpractice claims runs from "the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure" (CPLR 214-a). Defendants argued that the limitations period runs from the date of the alleged malpractice, which they identified as the date the embryo was implanted in the mother. Plaintiffs opposed the motions to dismiss, contending that the limitations period started on the date of birth. It is undisputed that if the statute of limitations runs from the date of malpractice, even assuming the continuous treatment toll extended the date to plaintiffs' discharge to their obstetrician/gynecologist, the cause of action would be time-barred.

         In each case, Supreme Court, among other things, denied the motion to dismiss with respect to the extraordinary expenses claim. The court held that the statute of limitations began to run upon the infant's birth, which rendered both actions timely. The Appellate Division affirmed, insofar as relevant here (136 A.D.3d 73');">136 A.D.3d 73 [1st Dept 2015]; 134 A.D.3d 543');">134 A.D.3d 543 [1st Dept 2015]), and thereafter granted defendants leave to appeal, certifying the question whether the orders were properly made [2]. We now affirm.


         In negligence cases, the statute of limitations generally begins to run when a cause of action accrues (see Aetna Life & Cas. Co v Nelson, 67 N.Y.2d 169, 175 [1986]). Absent legislative action to the contrary, courts have authority to determine when a common-law cause of action accrues (see Fleishman v Lilly & Co., 62 N.Y.2d 888, 891-892 [1984]; see e.g. Ackerman v Price Waterhouse, 84 N.Y.2d 535, 541-542 [1994]).

         In 1978, this Court recognized a new, narrow cause of action permitting parents to recover the extraordinary care and treatment expenses "accruing as a consequence of the birth" of a child with a disability (Becker, 46 N.Y.2d at 412). This claim, "founded essentially upon a theory of negligence or medical malpractice, " requires "a duty flowing from defendants to [plaintiffs] and that the breach of that duty was the proximate cause of the birth of their infants" (46 N.Y.2d at 412). The claim is restricted to those instances in which the plaintiffs can demonstrate "that but for the defendants' breach of their duty to advise plaintiffs, the latter would not have been required to assume these [extraordinary financial] obligations" (46 N.Y.2d at 412-413). In other words, parents bringing this type of action may seek to recover only "'the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority'" (Foote v Albany Med. Ctr. Hosp., 16 N.Y.3d 211, 215 [2011], quoting Bani-Esraili v Lerman, 69 N.Y.2d 807, 808 [1987]). No recovery is allowed for any consequent psychic or emotional damages (46 N.Y.2d at 413), nor may parents recover the ordinary costs of raising a healthy child born by reason of so-called wrongful conception (see O'Toole v Greenberg, 64 N.Y.2d 427, 432 [1985]). The extraordinary expenses claim belongs to the parents alone - the child cannot bring a claim for "wrongful life" (see Becker, 46 N.Y.2d at 411). This is because, as a matter of public policy, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all (id.).

         The question now before this Court is when this "extraordinary expenses" cause of action accrues - and consequently, when the statute of limitations begins to run [3]. Defendants argue that the date of malpractice controls while plaintiffs contend that the cause of action accrues upon the date of birth [4]. The parties agree that the cause of action is governed by the 2½-year statute of limitations applicable to medical malpractice actions. Due to its unique features, we conclude that the cause of action accrues upon, and hence the limitations period runs from, the birth of the child.

         A claim accrues "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief" (Aetna, 67 N.Y.2d at 175; see also Kronos, Inc. v AVX Corp., 81 N.Y.2d 90, 94 [1993]). As a general rule, a "legal right to relief" in a tort action arises when an injury occurs (Ackerman, 84 N.Y.2d at 541). To determine when a claim accrues, we must balance the competing policy considerations of putting to rest stale claims with ensuring "fairness to the claimant [who] shall not unreasonably be deprived of [the] right to assert [a] claim" (Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, 403 [1975] [quotation marks and citation omitted]).

         The action's gravamen is that, but for defendants' negligence, the parents would not have conceived or given birth to a child requiring extraordinary expenses for treatment and care. Plaintiffs allege that, by failing to take steps to detect that the egg donor was a carrier for Fragile X and therefore that the embryo may have had the Fragile X trait, defendants left the parents in an uninformed state as to whether to avert pregnancy or birth - and the associated costs resulting from birth. Given the nature of these allegations, it follows that until the alleged misconduct results in the birth of a child, there can be no extraordinary expenses claim. Moreover, we have stated that the "legally cognizable injury" is that the parents will incur extraordinary expenses to care for and treat the child (Foote, 16 N.Y.3d at 215). These expenses arise "as a consequence of the birth" (Becker, 46 N.Y.2d at 412), not just the conception. Prior to a live birth, it is impossible to ascertain whether parents will bear any extraordinary expenses [5]. Due to these unique circumstances, the cause of action accrues upon the birth of an infant with a disability. This date appropriately balances the competing statute of limitations policy concerns - it gives parents a reasonable opportunity to bring suit while at the same time limiting claims in a manner that provides certainty and predictability to medical professionals engaged in fertility treatment and prenatal care (see MRI Broadway Rental v United States Min. Prods. Co., 92 N.Y.2d 421, 428 [1998]; Victorson, 37 N.Y.2d at 403).

         We respectfully disagree with our dissenting colleague that Goldsmith v Howmedica, Inc. (67 N.Y.2d 120');">67 N.Y.2d 120 [1986]) requires a different result. Goldsmith is a classic medical malpractice case in which a plaintiff, who suffered a physical injury, sued a doctor for inserting a defective hip prosthetic, seeking pain and suffering and emotional distress damages, and other relief recoverable in a personal injury case (67 N.Y.2d at 122). There, we reiterated the common-law rule that the "action accrues and the Statute of Limitations begins to run at the time of the commission of the alleged malpractice" (67 N.Y.2d at 122). In contrast, the instant case involves a distinct cause of action for extraordinary expenses, which we determine - for the first time on this appeal - to accrue on the date of birth. Our holding that the limitations period also runs from the date of birth is consistent with the accrual-based statute of limitations rule followed in Goldsmith. There, we rejected plaintiffs' argument that such a rule "effectively forecloses an action against the doctor before any injury has been suffered, " and, relying on our precedents, held that the injury in that type of case occurred on the date of negligence, not when the harmful effects were felt (67 N.Y.2d at 123-124, see e.g. Thornton v Roosevelt Hosp., 47 N.Y.2d 780, 781 [1979]). Here, where the legally cognizable injury arises as a consequence of the birth, the limitations period likewise runs from that date.


         CPLR 214-a - which provides that a medical malpractice action must be commenced within 2½ years of "the act, omission or failure complained of" - does not bar this outcome. Prior to the enactment of CPLR 214-a in 1975, courts followed the common-law rule that the statute of limitations in a medical malpractice action begins to run on the date of the alleged malpractice (see Davis v City of New York, 38 N.Y.2d 257, 259 [1975]). This comported with the associated common-law rule that a medical malpractice claim accrues on the date of the negligent act or omission. In 1969, this Court created an exception to the accrual-based rule, holding that "where a foreign object has negligently been left in the patient's body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice" (Flanagan v Mount Eden Gen. Hosp., 24 N.Y.2d 427, 431 [1969]). Following Flanagan, lower courts moved toward adopting a discovery rather than an accrual rule more broadly in medical malpractice cases (see Walton v Strong Mem. Hosp., 25 N.Y.3d 554, 561-562 [2015]).

         The legislature expressed concern that these decisions had "a potential of bringing virtually all medical malpractice cases under the discovery rule" (Governor's Program Bill Mem at 4, Bill Jacket, L 1975, ch 109). To halt this trend, the legislature enacted CPLR 214-a, which codified the common-law rule, as applied in a case like Goldsmith, that the limitations period for medical malpractice begins to run at the time the cause of action accrues - the date of malpractice. This served to curtail further "judicial expansiveness towards a more plaintiff friendly discovery rule" (LaBarbera v New York Eye & Ear Infirmary, 91 N.Y.2d 207, 213 [1998] [emphasis added]; see also Rodriguez v Manhattan Med. Group, 77 N.Y.2d 217, 221 [1990]). There is no question that, in the wake of CPLR 214-a and its companions, the legislature has exclusive authority to determine when the discovery rather than the traditional rule should apply (see e.g. CPLR 214-b [agent orange exposure]; CPLR 214-c [toxic torts]) [6]. However, nothing in the legislative history suggests an intent to constrict judicial authority to otherwise define when a cause of action accrues, or to mandate that the limitations period should commence prior to accrual. Following CPLR 214-a, we have continued to hold that the typical medical malpractice cause of action accrues at the time of the malpractice, consistent with the statute (see Massie v Crawford, 78 N.Y.2d 516, 519 [1991]; Nykorchuck v Henriques, 78 N.Y.2d 255, 258 [1991]). Indeed, we explained in Massie that CPLR 214-a established that "[a]n action for medical malpractice must be commenced within two years and six months of the date of accrual, " citing our common-law precedents to show that a malpractice claim accrues on the date of the alleged malpractice (78 N.Y.2d at 519).

         Yet this is not the typical medical malpractice case. Three years after the legislature enacted CPLR 214-a, this Court recognized for the first time the extraordinary expenses claim, which, as explained above, cannot accrue until the live birth of the infant. Before Becker and prior to CPLR 214-a, we declined to recognize related causes of action for wrongful life (see Williams v State of New York, 18 N.Y.2d 481');">18 N.Y.2d 481 [1966]) and for medical malpractice damages on behalf of an infant who is ...

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