New York’s Court of Appeals has held that the statute of limitations for extraordinary expense claims (“wrongful birth”) runs from the date of birth of the infant and not from the date of last treatment. In B.F. v. Reproductive Medicine Assoc. of NY, LLP, Dennehy v. Copperman, No.126-127, 2017 WL 6375833 (Dec. 14, 2017), two couples brought medical malpractice claims against a fertility specialist whom they alleged failed to perform adequate screening of their egg donor for the Fragile X mutation and failed to notify that they did not screen for this trait. The plaintiffs alleged that these negligent acts and omissions caused them to consent to in vitro fertilization (IVF) procedures and go forward with pregnancy, resulting in conception and birth of plaintiffs’ impaired children. It was only after both births that doctors 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. Plaintiffs sought recovery for the extraordinary expenses associated with care and treatment of a child with a disability. Although New York does not recognize claims for “wrongful life” where it is claimed the child never should have been born at all, recovery is permitted based upon wrongful birth where parents can provide evidence of their expenses related to child care. Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807 (1978).
Defendants, healthcare providers, moved to dismiss both plaintiffs’ complaints under CPLR 3211(a)(5) and (a)(7), contending that these wrongful birth claims were time-barred by CPLR 214-a, which provides a two and one-half year statute of limitations for medical malpractice, which runs from the “act, omission, or failure complained of or last treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.” CPLR 214-a. The only exception to this rule is where the action is based upon the discovery of the foreign object in the body of the patient. 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. In each case, the Supreme Court denied the motions to dismiss, reasoning that the statute of limitations began to run upon the infant’s birth, rendering both actions timely. The Appellate Division affirmed the Supreme Court decisions in both cases and granted Defendants leave to appeal certifying the question whether the decisions were properly made.
The primary question before the Court of Appeals was whether the parent’s causes of action accrued upon the termination of defendants' treatment of the plaintiff mother, less than two months after the implantation of the embryo, or upon the birth of the infant several months later. The Court of Appeals held that “due to its unique features, the cause of action accrues upon… the birth of the child.” B.F. 2017 WL 6375833 at *2. The Court reasoned that since this narrow cause of action is restricted to instances where in which the plaintiffs can demonstrate that but for the defendants’ breach, they would not be required to assume these extraordinary financial obligations “… it follows, that until the alleged misconduct results in the birth of a child, there can be no extraordinary expense claim” because the expenses arise “as a consequence of the birth.” Id at *3. The Court reasoned that “[t]his 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.” Id. citing MRI Broadway Rental v United States Min. Prods. Co., 92 N.Y.2d 421, 428 (1998); Victorson v. Bock Laundry Mach Co., 37 N.Y.2d 395, 403 (1975). The Court relied on LaBello v. Albany Med. Ctr. Hosp., which provides an exception to CPLR 214-a allowing child's medical malpractice claim for injuries suffered as a result of faulty prenatal care, to run from the child’s birth. 85 N.Y.2d 701, 704 (1995).
This decision is a clear departure from the traditional rules governing the statute of limitations applicable for medical malpractice claims provided by CPLR 214-a and favors plaintiffs bringing extraordinary expense claims.
Hon. Michael A. Garcia issued a dissent asserting he did not believe that “unique features” of this cause of action warranted a departure from the “clearly expressed legislative intent of CPLR 214-a.” B.F. 2017 WL 6375833 at *6. Hon. Garcia reasoned that the cause of action accrues at conception of the child rather than birth and stated that the majority’s decision would foreclose a parent from recovering pre-birth expenses associated with a child conceived under these circumstances. Hon. Garcia further stated that the majority’s reliance on LaBello was misplaced as this case was factually distinguishable. Specifically, in LaBello, the Court made a fair exception to CPLR 214-a to allow the infant plaintiff’s statute of limitations run at the date of his/her birth because it was unreasonable to have the time run prior to the date that the infant plaintiff physically existed and had capacity to sue. Id at *5. LaBello thus concerned the accrual date for the infant’s, not the parent’s, cause of action.
Notably, the extraordinary expenses “wrongful birth” claim belongs to the parents alone. New York statute provides a 10 year toll for infant medical malpractice claims, however that toll could not have saved the parents’ claims here because in a “wrongful birth” claim the infant is not the plaintiff. As a matter of public policy, an infant born in an impaired state does not suffer a legally cognizable injury on the theory that the child (himself or herself) would have been better off had the child never come into being born. B.F. 2017 WL 6375833 at *2, citing Becker v. Schwartz.