B.F. v. Reprod. Med. Assocs. of N.Y., LLP

• Decision Date: 17 December 2015
• Citation: 22 N.Y.S.3d 190,136 A.D.3d 73
• Parties: B.F., et al., Plaintiffs–Respondents, v. REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 73
22 N.Y.S.3d 190

B.F., et al., Plaintiffs–Respondents,
v.
REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Dec. 17, 2015.

22 N.Y.S.3d 191

Mauro Lilling Naparty LLP, Woodbury (Caryn L. Lilling and Katherine Herr Solomon of counsel), for Reproductive Medicine Associates of New York, LLP, appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for Alan B. Copperman, M.D., appellant.

Lieff Cabraser Heimann & Bernstein, LLP, New York (Wendy R. Fleishman, Daniel R. Leathers and Jeremy J. Troxel of counsel), for respondents.

DAVID FRIEDMAN, J.P., DAVID B. SAXE, SALLIE MANZANET–DANIELS, PAUL G. FEINMAN, JUDITH J. GISCHE, JJ.

FRIEDMAN, J.P.

136 A.D.3d 75

This is a medical malpractice action for "wrongful birth" (see Foote v. Albany Med. Ctr. Hosp., 16 N.Y.3d 211, 214, 919 N.Y.S.2d 472, 944 N.E.2d 1111 [2011] ; Becker v. Schwartz, 46 N.Y.2d 401, 412–413, 413 N.Y.S.2d 895, 386 N.E.2d 807 [1978] ), in which it is alleged that defendants' failure to perform adequate genetic screening of an egg donor for an in vitro fertilization resulted in the conception and birth of plaintiffs' impaired child. The primary question raised on this appeal is whether plaintiffs' wrongful birth cause 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. We hold that the wrongful birth claim accrued upon the birth of the infant and, therefore, was not barred by the applicable statute of limitations (CPLR 214–a ) when this action was commenced within 2 ½ years after the birth. Accordingly, we affirm the order appealed from insofar as it denied defendants'

22 N.Y.S.3d 192

motion to dismiss the cause of action for medical malpractice.¹

Plaintiffs, who had been unable to achieve pregnancy naturally, first consulted with defendant Alan Copperman, M.D., at defendant Reproductive Medicine Associates of New York, LLP (RMA), in February 2008, and subsequently placed themselves on RMA's waiting list for an egg donor. Plaintiffs were told that RMA screened donor candidates for genetic diseases and other conditions, but the particular conditions for which candidates were tested were not discussed with them. Plaintiffs were told, however, that some risk of birth defects would remain notwithstanding the screening.

In October 2008, plaintiffs were matched with a donor, whom they accepted. In December 2008, plaintiffs signed a consent form to go forward with the in vitro fertilization procedure. The consent form contains, among other provisions, a representation that plaintiffs "understand that the risk of major birth defects following the use of donor oocytes (eggs) appears to be the same as in the general population."

On January 21, 2009, two embryos, each produced by fertilizing a donated ovum with the plaintiff father's sperm, were implanted in the plaintiff mother. Shortly thereafter, it was confirmed that the plaintiff mother was pregnant with twins. The plaintiff mother had her last appointment at RMA on

136 A.D.3d 76

March 10, 2009, and thereafter treated with an obstetrician unaffiliated with defendants for the remainder of the pregnancy. On September 25, 2009, the plaintiff mother gave birth to twin boys.

In February 2010, after Dr. Copperman received information that plaintiffs' donor might have a genetic mutation, RMA tested the donor for a chromosomal abnormality known as "Fragile X," which can produce intellectual disability and other deficits, particularly in males. The donor, who had not been tested for Fragile X before donating her eggs to plaintiffs, was shown to be a Fragile X carrier. The following May, Dr. Copperman called the plaintiff mother and told her that her egg donor was a Fragile X carrier. Plaintiffs then had their sons tested and found that one of the boys (M.F.) had the full Fragile X mutation.

In December 2011, plaintiffs commenced this action against RMA and Dr. Copperman, asserting 12 causes of action. RMA and Dr. Copperman moved separately to dismiss the complaint pursuant to CPLR 3211(a)(5) and 3211(a)(7). Supreme Court granted the motions to the extent of dismissing the seventh through twelfth causes of action (from which plaintiffs have not appealed), but otherwise denied the motions, leaving pending plaintiffs' first six causes of action, which are denominated, in order, "fraudulent concealment," "medical negligence," "negligence," "common law fraud," "negligent misrepresentation" and "breach of contract." The court also denied defendants' motions insofar as they sought to strike the complaint's prayer for punitive damages. Defendants have appealed.

Initially, defendants ask us to dismiss "any claims which may be construed to be asserted on behalf of M.F.," plaintiffs' impaired child. Defendants are correct that any cause of action brought against them on behalf of M.F. would amount to a "wrongful life" claim not cognizable under New York law (see Becker, 46 N.Y.2d at 408–412, 413 N.Y.S.2d 895, 386 N.E.2d 807 ), since the harm alleged by the complaint is M.F.'s conception and birth. Under Becker, parents may not bring a claim on behalf of an impaired child on the theory

22 N.Y.S.3d 193

that the child himself or herself (as opposed to the parents) would have been better off had the child never come into being. However, while M.F. is named as an infant plaintiff in the caption of the action, the only two causes of action that the complaint asserts on his behalf—the seventh, for "breach of contract—third-party beneficiary," and the tenth, for "breach of express and implied warranties—third-party beneficiary"

136 A.D.3d 77

—were dismissed by Supreme Court as legally insufficient pursuant to CPLR 3211(a)(7) and, as previously noted, plaintiffs have not taken an appeal from Supreme Court's order. Accordingly, M.F.'s lack of any cognizable claim against defendants provides no occasion for disturbing the order appealed from, which properly dismissed all claims asserted on M.F.'s behalf.

While an impaired child may not recover damages "dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence" (Becker, 46 N.Y.2d at 412, 413 N.Y.S.2d 895, 386 N.E.2d 807 ), the child's parents may seek to recover their past and future "extraordinary financial obligations relating to the care" of that child during his or her minority (Foote, 16 N.Y.3d at 215, 919 N.Y.S.2d 472, 944 N.E.2d 1111 ). To recover such damages on a wrongful birth cause of action, "the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or [as alleged here] that the child would not have been conceived but for the defendant's malpractice" (Mayzel v. Moretti, 105 A.D.3d 816, 817, 962 N.Y.S.2d 656 [2d Dept.2013] ). In this case, the second cause of action asserted in plaintiffs' complaint, denominated "medical negligence," states a wrongful birth cause of action, based principally on allegations (1) that defendants' failure to test the egg donor for Fragile X was a deviation from the applicable medical standard of care and (2) that defendants failed to obtain plaintiffs' informed consent to the procedure inasmuch as they did not disclose to plaintiffs that the egg donor had not been tested for Fragile X. The question is whether this claim is barred by the statute of limitations.

CPLR 214–a provides in pertinent part:

"An action for medical, dental or podiatric malpractice must be commenced within two years and six months of 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[.]"

As noted, the embryos arising from the donated eggs were implanted in the plaintiff mother on January 21, 2009; the last date on which defendants treated the plaintiff mother was March 10, 2009; and plaintiff's impaired son was born on September 25, 2009. This action, however, was not commenced until December 2011. Thus, if plaintiffs' wrongful birth claim accrued upon the birth of their son, it has been timely asserted; if the claim accrued upon defendants' last treatment of the plaintiff mother, it is untimely.

136 A.D.3d 78

The Court of Appeals has not addressed the question of when a wrongful birth cause of action accrues. In LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 628 N.Y.S.2d 40, 651 N.E.2d 908 (1995), however, the Court of Appeals held that "an infant plaintiff's medical malpractice cause of action, premised on alleged injurious acts or omissions occurring prior to birth, accrues on the earliest date the injured infant plaintiff could juridically assert the claim and sue for relief, that is, the date of being born alive"...