L. Lilling, for appellants Reproductive Medicine Associates
of New York, LLP et al., Nancy Ledy-Gurren, for appellant
Copperman., Wendy R. Fleishman, for respondents.
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.
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 ). 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.
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.
parents commenced separate lawsuits against Copperman and RMA
. 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.
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
. We now affirm.
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 ).
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 ; see e.g. Ackerman v Price
Waterhouse, 84 N.Y.2d 535, 541-542 ).
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 , quoting
Bani-Esraili v Lerman, 69 N.Y.2d 807, 808 ).
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 ). 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.).
question now before this Court is when this
"extraordinary expenses" cause of action accrues -
and consequently, when the statute of limitations begins to
run . Defendants argue that the date of
malpractice controls while plaintiffs contend that the cause
of action accrues upon the date of birth . 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.
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
). 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  [quotation marks and citation omitted]).
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 . 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 ; Victorson, 37
N.Y.2d at 403).
respectfully disagree with our dissenting colleague that
Goldsmith v Howmedica, Inc. (67 N.Y.2d 120');">67 N.Y.2d 120 )
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 ).
Here, where the legally cognizable injury arises as a
consequence of the birth, the limitations period likewise
runs from that date.
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 ). 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 ). 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 ).
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  [emphasis added]; see also
Rodriguez v Manhattan Med. Group, 77 N.Y.2d 217, 221
). 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]) . 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 ; Nykorchuck v Henriques,
78 N.Y.2d 255, 258 ). 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
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 ) and for medical malpractice damages on
behalf of an infant who is ...