B.F., et al., Respondents,v.Reproductive Medicine Associates of New York, LLP, et al., Appellants.

Brief

N.Y.November 15, 2017

APL-2016-00159 New York County Clerk’s Index No. 800405/11 Court of Appeals STATE OF NEW YORK B.F. and STEVEN FARBER, a married couple, individually and as parents and natural guardians on behalf of their minor child, M.F., Respondents, against REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and ALAN COPPERMAN, M.D., Appellants. >> >> BRIEF FOR APPELLANT ALAN COPPERMAN, M.D. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Appellant Alan Copperman, M.D. 600 Third Avenue, 5th Floor New York, New York 10016 212-593-6700 Of Counsel: Elliott J. Zucker Nancy Ledy-Gurren Date Completed: October 18, 2016 To Be Argued By: Elliott J. Zucker Time Requested: 15 Minutes {01885904.DOC } TABLE OF CONTENTS Table of Authorities……………………………………………………….….. ii Preliminary Statement………………………………………………………… 1 Question Presented ………………………………………………….……….. 3 Jurisdictional Statement ……………………………………………………… 4 Factual and Procedural History………………………………………………. 5 Factual Background…………………………………. . ………………. 5 Procedural History ………..…………………..……………………….. 7 Legal Argument……………………………………………………………….. 10 A. The Statutory Scheme …………..…………………………………. 10 B. Prior Appellate Cases on Wrongful Birth Statute of Limitations… 20 Conclusion…………………………………………………………………….. 26 i {01885904.DOC } TABLE OF AUTHORITIES Ciceron v. Jamaica Hosp., 264 A.D.2d 497, 694 N.Y.S.2d 459 (2nd Dept. 1999)…………………………………………. 23 Flanagan v. Mt. Eden General Hospital, 24 N.Y.2d 427, 248 N.E.2d 871, 301 N.Y.S.2d 23 (1969)…………………………………… 11 Fleishman v. Lilly & Co., 62 N.Y.2d 888, 467 N.E.2d 517, 478 N.Y.S.2d 853 (1984)……………………………………………………... 15 Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 491 N.E.2d 1097, 500 N.Y.S.2d 640 (1986)…………………………………………………….. 18 Grossbaum v. Genesis Genetics Inst., LLC, Civil Action No. 07-1359 (GEB), 2011 U.S. Dist. LEXIS 62180, (DNJ June 10, 2011), aff’d, 489 Fed Appx 613 (3d Cir. 2012)……………………………………………. 25 Helgans v. Plurad, 255 A.D.2d 554, 680 N.Y.S.2d 648 (2nd Dept. 1998)……………………………………………………………… 18 Highby v. Mahoney, 48 N.Y.2d 15, 396 N.E.2d 183, 421 N.Y.S.2d 35 (1979)……………………………………………………… 15 Jorge v. New York City Health & Hosps. Corp., 164 A.D.2d 650, 563 N.Y.S.2d 411 (1st Dept. 1991), revd. on other grounds, 7 9 N.Y.2d 905, 590 N.E.2d 239, 581 N.Y.S.2d 654 (1992)………………… 20 LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207, 691 N.E.2d 617, 668 N.Y.S.2d 546 (1998)…………………………………. 14 LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 651 N.E.2d 908, 628 N.Y.S.2d 40 (1995)……………………………………………………. 19, 22 Marchand v. Capone, 223 A.D.2d 686, 637 A.D.2d 455 (2nd Dept. 1996)………………………………………………………………. 24 ii {01885904.DOC } Pahlad v. Brustman, 33 A.D.3d 518, 823 N.Y.S.2d 518 (1st Dept. 2006)……………………………………………………………….. 24 Rodriguez v. Manhattan Medical Group, 77 N.Y.2d 217, 567 N.E.2d 235, 566 N.Y.S.2d 193 (1990)…………………………………………………….. 13 Scrofini v. Sebollena, 226 A.D.2d 523, 640 N.Y.S.2d 523 (2nd Dept. 1996)…………………………………………. 22 Walton v. Strong Memorial Hospital, 25 N.Y.3d 554, 35 N.E.3d 827, 14 N.Y.S.2d 757 (2015)…………………………………….. 13 Weed v. Mayers, 251 A.D.2d 1062, 674 N.Y.S.2d 242 (4th Dept. 1998)………………………………………………………………. 23 iii {01 885 056 .DOC X } 1 PRELIMINARY STATEMENT This is an appeal from a decision and order of the Appellate Division, First Department, dated December 17, 2015 (R1756-1782).1 In addition to addressing the sustainability of various causes initially brought by the plaintiffs (including fraud, breach of contract, negligent misrepresentation and breach of contract, amongst other claims) that are not now before this Court, the heart of the First Department decision dealt with a more fundamental question, that of how to measure the statute of limitations is a “wrongful birth” case. Specifically, the Appellate Division affirmed a ruling of the trial court, and held that the statute of limitations in these types of should be measured from an infant’s date of birth, rather than from the date of the alleged malpractice. That made the instant action timely, whereas it is not disputed that the lawsuit would have been untimely if the accrual date of the action was measured from the date of the alleged departure from accepted standards of medical care. The decision of the Appellate Division, in effect, lengthened the statute of limitations and provided the plaintiffs an extra period of time in which to commence his lawsuit. This was, we submit, a rather extraordinary exercise of judicial fiat. Statutes of limitations are, of course, a creation of the legislature. The two-and-a-half year statute of limitations governing medical malpractice case is plainly laid out in the 1 The numbers in parentheses refer to pages in the Record on Appeal. {01 885 056 .DOC X } 2 CPLR, and the only two previously-recognized exceptions to that time limitation – continuous treatment and the discovery of foreign bodies – are also legislative creations specifically enumerated by the CPLR, as are the standard tolling provisions for conditions such as infancy or disability. What the Appellate Division did here, in essence, was to create a third recognized exception to the medical malpractice statute of limitations, and to do so without any legislative permission or authority whatsoever. It is the defendants’ position that if the legislature wants to create such a third exception, it is free to do so, but that the courts do not possess the power by themselves to change the scheme the legislative branch has carefully laid for the limitation of actions. For this reason, the decision and order of the Appellate Division on this issue should be reversed, and this case should be dismissed as time-barred. {01 885 056 .DOC X } 3 QUESTION PRESENTED Did the courts below usurp their authority by, without legislative authority, extending the medical malpractice statute of limitations in “wrongful birth” situations so as to measure the accrual of the action from the date of birth rather from the alleged act or omission giving rise to the claim? It is respectfully submitted that this question should be answered in the affirmative. {01 885 056 .DOC X } 4 JURISDICTIONAL STATEMENT This case comes to this Court by permission of the Appellate Division, First Department. That Court, in turn, was reviewing a decision of the Supreme Court, New York County (Lobis, J.), dated December 12, 2013, and entered January 7, 2014 (R12-25), which had denied motions by both defendants Alan Copperman, M.D. (hereinafter “Dr. Copperman”) and Reproductive Medicine Associates of New York, LLP (hereinafter “RMA”), seeking to dismiss this lawsuit as untimely. A Notice of Appeal was served on behalf of Dr. Copperman on January 10, 2014 (R9-10). After perfection and argument of that appeal, the Appellate Division, First Department, issued its Decision and Order on the appeal on December 17, 2015 (R1756-1782). On April 22, 2016, Dr. Copperman then moved in the Appellate Division, First Department for leave to appeal to this Court, joining a similar motion that had been made by RMA. At that time, the Decision and Order had not yet been served, rendering the motion timely. By Order of the Appellate Division, First Department, dated July 21, 2016, the motion for leave to appeal was granted (R1754-1755). {01 885 056 .DOC X } 5 FACTUAL AND PROCEDURAL HISTORY We would initially note that we have read and digested the appellant’s brief being submitted on behalf of RMA, our codefendant, and we would ask that the Court consider all arguments in that brief as fully incorporated herein. Factual Background The plaintiffs’ allegations of malpractice in this case are relatively straightforward, and are not, in their particular details at least, greatly important in terms of the overarching legal question before this Court. Briefly, then, the plaintiff-parents first presented to RMA for an initial consultation with Dr. Copperman on February 25, 2008 (R253). By that point, they had already been through four or five four or five in vitro fertilization cycles over several years, none of which had been successful (R451, 453, 460, 462-463). In part due to B.F.’s age, Dr. Copperman recommended that the best option would be for plaintiffs to undergo IVF treatment using a donor egg (R487-488). On April 4, 2008, the plaintiff mother attended a donor workshop at RMA, where she saw a PowerPoint presentation and received handouts that addressed a variety of topics, including donor recruitment and screening and the matching processes (R280, 498-499). {01 885 056 .DOC X } 6 The plaintiffs thereafter placed themselves on the donor waiting list (R494), and on October 21, 2008, they were offered an Oocyte donor, which they accepted on October 28, 2008 (R67, 281, 285, 516). On November 3, 2008, Dr. Copperman performed a culture and sounding procedure, and by December 13, 2008, the plaintiffs had signed consent forms (R288-295) that acknowledged the risk of receiving inaccurate or incomplete information from the egg donor and that there was there was no guarantee that a “healthy baby” would result from this procedure. The donor’s eggs were subsequently retrieved by RMA on January 16, 2009 (R1659), and five days later two embryos, fertilized by the semen of the plaintiff father, were implanted into the plaintiff mother’s uterus by a Dr. Klein, who is not a party to this litigation (R67, 296). On January 30, 2009, B.F. was confirmed to be pregnant (R68, 297). She was thereafter discharged into the care of her private obstetrician (R543-544). On September 25, 2009, B.F. gave birth to twin boys (R68, 450). Some five months later, in February 2010, Dr. Copperman received information that suggested that plaintiffs’ donor might have an unknown genetic mutation (R347), and he informed the plaintiff-mother of that the donor was a carrier of Fragile X, and that the twins might have Fragile X syndrome, on May 10, 2010 (R68, 348, 440-441). On May 10, 2010, after having their children tested, {01 885 056 .DOC X } 7 the plaintiffs learned that their son M.F. did indeed have the full Fragile X mutation (R69). Procedural History The plaintiffs commence this litigation with the filing of a summons and complaint on December 7, 2011 (R60-92). The central contention in this pleading was that Dr. Copperman and RMA departed from accepted practice in failing to establish protocols and procedures in which each egg donor was tested for Fragile X, in failing to specifically test plaintiffs’ donor for Fragile X, and in failing to inform plaintiffs that the donor was not so tested (R73). Had they known that this egg donor was a Fragile X carrier, the complaint asserts, “they would have never agreed to become pregnant using an egg from this donor” (R77). Although the initial pleading was broken down in to numerous causes of action, the bulk of which have now been dismissed,2 the focus of the complaint was the allegation that, as a result of the defendants’ alleged malpractice, the plaintiff-parents “will have in the future a permanent obligation to expend money for medical care, life care, services, supplies, psychological care, services and supplies and other needs associated with Minor Plaintiff’s severe manifestation of Fragile X Syndrome” 2 The initial eleven additional causes beyond “medical negligence” sounded in fraudulent concealment, negligence, fraud, negligent misrepresentation, breach of contract as to the plaintiff parents and the infant as a third-party beneficiary, breach of express and implied warranty of merchantability as to the plaintiff parents and the infant as a third-party beneficiary, failure to warn, and negligent infliction of emotional distress, in addition to seeking punitive damages. {01 885 056 .DOC X } 8 (R73), and that they were entitled to “all costs and expenses incurred and...those which shall be incurred in the future, related to the medical/rehabilitative care and life care of M.F.” (R75). This was, in other words, a classically defined “wrongful birth” case. Both defendants then separately moved to dismiss the plaintiffs’ complaint, pursuant to CPLR §§ 3211(a)(5) and 3211(a)(7), arguing that certain causes of action were time-barred and that others failed to state a cause of action (R27-59, 302-335). With respect to the “wrongful birth” claim, the defendants argued that it was time-barred since it was asserted more than two years and six months from the date of the plaintiffs’ last treatment at RMA. The plaintiffs opposed the defendants’ motions, and cross-moved on discovery issues (R1036-1074, 1359- 1406). On or about December 12, 2013, the IAS court issued an order that denied that branch of defendants’ motions to dismiss the plaintiffs’ “wrongful birth” medical malpractice claim (the second cause of action) on statute of limitations grounds (R21). It also refused to dismiss the causes of action sounding in punitive damages, fraudulent concealment, negligence, fraud, negligent misrepresentation, and breach of contract as to the plaintiff parents (causes of action one, three, four, five and six), but did dismiss the causes of action sounding in breach of contract as to the infant as a third-party beneficiary, negligent infliction of emotional distress, {01 885 056 .DOC X } 9 failure to warn, and breach of express and implied warranty of merchantability as to the parents and the infant (causes of action seven through twelve) (R23-25). Both defendants appealed, eventually resulting in the First Department’s decision and order of December 17, 2015. In that ruling, the Appellate Division modified the trial court’s order to the extent of now dismissing the plaintiffs’ causes of action sounding in fraudulent concealment, negligence, fraud, negligent misrepresentation and breach of contract. More importantly for the issue now before this Court, the Appellate Division affirmed the ruling refusing to dismiss the “wrongful birth” medical malpractice claim, concluding that it was timely. The Court noted the two competing methods of computing the statute of limitations in this case, and the consequences of adopting either: “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.” The Appellate Division eventually ruled on the former side of this duality, rather than the latter. At the same time, the Appellate Division noted that this was a question that had never been squarely addressed by this Court, and the defendants thus thereafter separately moved for leave to appeal. Those motions were granted, and the current appeal then followed. {01 885 056 .DOC X } 10 LEGAL ARGUMENT The Appellate Division Usurped Its Authority in Creating a New, Statutorily-Unauthorized Exception to the Medical Malpractice Stature of Limitations The Statutory Scheme The statute of limitations governing medical malpractice actions is clear, unambiguous, and is plainly set forth in CPLR §214-a. That statute sets forth that claims for medical negligence begin to accrue on the date of the “act, omission or failure complained of,” and that any lawsuit must be commenced within two years and six months thereafter. Our statutory scheme lays out two exceptions to this rule, one involving foreign objects (which no one claims is applicable to the case at bar), and that involving “continuous treatment.” Even if one were to accept, arguendo, that the continuous treatment exception had some applicability to the case at bar, the uncontested facts of this case are that the plaintiff last received any sort of “treatment” at RMA on March 10, 2009 (although the accusations of malpractice clearly relate to a period before that “end date”). If one were to start the two-and- a-half year statute of limitations period running from that last “treatment” date, the present lawsuit would have had to have been commenced on or before September {01 885 056 .DOC X } 11 10, 2011. In reality, however, the instant litigation was not commenced until December 7, 2011, nearly four months late. On its face, therefore, this action was untimely. The only way the lawsuit could survive, therefore, is if the accrual date were not measured from the time of the malpractice, or from the time of the last treatment, but was instead measured from some other point in time. In this case, the courts below chose the date of the infant’s birth as the accrual date. The problem in doing so, however, is that there is no statutory authority for creating this new accrual date; it is purely a judicial creation, made outside of any legislative permission, mandate or process. The question squarely before this Court, therefore, is whether the courts have the ability to create a third “exception,” beyond what is specifically laid out in statute, to the malpractice statute of limitations. The circumstances surrounding the enactment of CPLR §214-a shows both the legislature’s desire to reign in a prior history of statutes of limitations being used in an expansive way and to make sure its enactments in this area were strictly adhered to. Before the CPLR was amended in 1975, the statute of limitations for medical malpractice claims was the same governing all negligence claims, the three years set forth in CPLR §214, as measure from the negligent event. In 1969, however, this Court created a common law exception for cases involving foreign objects. In those cases, the Court ruled, actions do not begin {01 885 056 .DOC X } 12 accruing until the plaintiff-patient could reasonably have discovered the malpractice. Flanagan v. Mt. Eden General Hospital, 24 N.Y.2d 427, 248 N.E.2d 871, 301 N.Y.S.2d 23 (1969). Yet even in doing so, the Court recognized the importance of not leaving things too open-ended. After noting that, historically, there had been no statutes of limitations at all, the Court wrote that: The Statute of Limitations was enacted to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action. The statutes embody an important policy of giving repose to human affairs. "The primary consideration underlying such legislation is undoubtedly one of fairness to the defendant. There comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not to be called on to resist a claim where the 'evidence has been lost, memories have faded, and witnesses have disappeared...'" The Supreme Court has noted that Statutes of Limitation "are founded upon the general experience of mankind that claims, which are valid, are not usually allowed to remain neglected. The lapse of years without any attempt to enforce a demand creates, therefore, a presumption against its original validity, or that it has ceased to subsist. This presumption is made by these statutes a positive bar; and they thus become statutes of repose, protecting parties from the prosecution of stale claims, when, by loss of evidence from death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth." 24 N.Y.2d at 429-430 (internal citations omitted). In 1975, some six years after Flanagan, the legislature enacted CPLR § 214– a, which both reduced the statute of limitations in medical malpractice actions from {01 885 056 .DOC X } 13 three years to two years and six months, and also established two very specific exceptions to the accrual-upon-act-or-omission rule, the same two that remain in place today, that dealing with “continuous treatment,” and that dealing with foreign objects exception. While the latter represented a codification of this Court’s ruling in Flanagan, albeit with some important differences (including in how the time was measured and in placing its own time limitation on the exception), the reason for the codification was of primary importance, namely attempts by intermediate courts after Flanagan to use this judicially-created exception in ever-more expanding circumstances. See, Walton v. Strong Memorial Hospital, 25 N.Y.3d 554, 35 N.E.3d 827, 14 N.Y.S.2d 757 (2015). The purpose of CPLR §214-a, in other words, was to curtail the excesses that followed Flanagan, and this Court since that time has been careful not to allow expansion of statute of limitations beyond the legislative mandate. Thus, for example, in Rodriguez v. Manhattan Medical Group, 77 N.Y.2d 217, 567 N.E.2d 235, 566 N.Y.S.2d 193 (1990), the Court was confronted with a defendant who had allegedly failed to detect the implantation of an IUD device into the plaintiff’s uterine wall. The Court initially noted that this was not really a “foreign body” case at all, entitling the plaintiff to use of a discovery method of computing the statute of limitations, but was rather a case no different from any {01 885 056 .DOC X } 14 other involving the failure to detect a condition ins a patient’s body requiring surgery. More importantly was the Court’s warning that using the CPLR §214-a’s present exceptions to fit the fact pattern of that case would “represent a giant step toward precisely what the statute’s drafters feared: ‘bringing virtually all medical malpractice cases under the discovery rule.’ Since such a result is plainly inconsistent with the Legislature’s intentions, we are duty-bound to reject it.” 77 N.Y.2d at 224, quoting Bill Jacket, Governor’s Mem., op cit., at 4. That “fear” remains relevant in considering the case at bar. The factual circumstances of this case do not fit in to any current exception to the clear language of CPLR §214-a, so why should the courts go where the legislature has not? It is not, after all, like wrongful birth cases are a new phenomenon, or that the legislature has been deprived of an opportunity to address these cases if it wanted to. This Court has recognized precisely this in dealing with other cases in which there were attempts to expansively ready the statute of limitations beyond what was expressly authorized by the legislature. For instance, in LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207, 691 N.E.2d 617, 668 N.Y.S.2d 546 (1998), the Court noted that common law development of statute of limitations guidelines have been limited by “statutory codification.” While the Court noted that “strict adherence” to the definitive rules and policies expressly laid out in the {01 885 056 .DOC X } 15 CPLR may sometimes engender expressions of possible “unfairness,” nevertheless, “the Legislature, having statutorily occupied the field, is more appropriately suited to effectuate any redefinition or expansion of the application of the exception, if that is warranted.” 91 N.Y.2d at 211. As this Court had earlier noted in Highby v. Mahoney, 48 N.Y.2d 15, 396 N.E.2d 183, 421 N.Y.S.2d 35 (1979), the “Legislature has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand and its members are properly politically responsive to the electorate… under our polity of government and distribution of powers, responsibility for making the policy decisions inherent in the adoption of the original legislative provision was, by its very nature, vested in the legislative branch. 48 N.Y.2d 18-19. In Fleishman v. Lilly & Co., 62 N.Y.2d 888, 467 N.E.2d 517, 478 N.Y.S.2d 853 (1984) this Court declared that, “Any departure from the policies underlying these well-established precedents is a matter for the Legislature and not the courts” 62 N.Y.2d at 890. In point of fact, our legislature has proven highly adept at enacting legislation seeking to ameliorate the seemingly “unfair” application of the statute of limitations, passing amendments that allow for extra time in commencing an action in cases involving exposure to Agent Orange (CPLR §214–b) and other toxic substances as well (CPLR §214–c), and for the revival of causes of action {01 885 056 .DOC X } 16 after the applicable limitations period expired in personal injury actions arising from infusion of AIDS-tainted blood products (CPLR §214–e). Still, despite having had ample opportunity to do so, the legislature has never made any special exceptions for wrongful birth cases. It has never carved out any exception allowing the accrual these cases to be measured from birth, from discovery, or from anything else other than what the CPLR already says is the date of accrual: the time of the act or omission. Periodic attempts to change how the statute of limitations is measure continue to the present day, yet still have never been enacted. As recently as this past spring, proposed legislation known as “Laverne’s Law,” which would amend the statute of limitations for medical malpractice to include a discovery of injury rule (not to exceed 10 years from the date of the alleged malpractice), once again failed to make it through the State Senate. According to the State Assembly memorandum in support of this legislation, the bill has been introduced no less than 16 times in the last 20 years, and has been rejected in each instance. Yet despite the many previous admonitions from this Court regarding not going where the legislature has refused to tread, the First Department’s decision did just that. There can be little question that the Appellate Division was in fact trying to apply a twisting and turning modification of the CPLR 214-a discovery rule to this {01 885 056 .DOC X } 17 case. That Court’s ruling is apparently based on the idea that one never knows how a pregnancy is going to go (“the natural course of any pregnancy is a matter of substantial uncertainty”), and that only once there has been a live birth can one discover whether a “legally cognizable injury” even exists. Even then, the Court’s rationale does not make particular sense given the facts of this case, since the birth itself in the case at bar did not tell the parents anything (let alone that a cognizable injury existed), and it was only upon being informed by the defendants of a possible problem with the donor’s egg did they become aware of a potential problem, and did not “discover” the injury until subsequent testing confirmed the existence of Fragile X Syndrome. This conflicting logic of the rationale behind the court’s ruling was perhaps inevitable when a court strays so far from what the governing statute lays out, but there can be no question that such a deviation from the statutory mandate is exactly what occurred. In point of fact, apart from the areas formally codified in the CPLR, ascertaining whether a legally cognizable injury exists has never been the standard by which statutes of limitations are measured in the field of medical malpractice. This can be perhaps most clearly be seen in cases involving the failure to diagnose cancer. The statute of limitations in those cases is indisputably measured from the time of the failure to diagnose, rather from the discovery of the failure to diagnose the cancer. That, of course, can lead to results that are unquestionably “harsh.” If {01 885 056 .DOC X } 18 a patient does not discover that the cancer even exists until more than two-and-a- half years after the physician who allegedly should have diagnosed it failed to do so, that does nothing to extend the statute of limitations. As the Second Department stated in Helgans v. Plurad, 255 A.D.2d 554, 680 N.Y.S.2d 648 (2nd Dept. 1998): To accept the plaintiff’s argument [that CPLR 214–a arbitrarily and unfairly treats victims of a negligent failure to diagnose a disease with a latency period of over two years and six months more harshly than any other class of medical malpractice victims] essentially would require a rule of accrual upon discovery of the injury for every medical malpractice claim, a result which has been repeatedly rejected in this State, on the basis that the detriment of the harsh effect of CPLR 214–a in certain cases would be outweighed by “the effect of potentially open-ended claims upon... defendants and society”, if the period of limitation were to run from discovery of the injury. 255 A.D.2d at 557, quoting Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 491 N.E.2d 1097, 500 N.Y.S.2d 640 (1986). The instant matter is substantively no different from one of these failure to diagnose cancer cases. In both situations, a plaintiff may not be in a position to know they have a cognizable cause of action until quite some time after the malpractice occurred, yet that does not mean that the statute has not yet begun to run. There is, we submit, no logical way to reconcile a plaintiff whose case is dismissed because he did not learn that there was a failure to diagnose cancer until {01 885 056 .DOC X } 19 more than two-and-a-half years after the act of malpractice occurred, and a plaintiff in a wrongful birth case who – under the First Department’s rationale – is allowed “extra time” to see whether a “cognizable injury” exists, as if the CPLR also contained a pregnancy toll for these cases. In trying to justify its decision, the First Department also misunderstood the notion of damages, conflating pecuniary loss to harm, and improperly using the occurrence of damage – as opposed to the occurrence of an act or omission – as the starting point for measuring the statute of limitations. To that end, the Court cited to LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 651 N.E.2d 908, 628 N.Y.S.2d 40 (1995) for the proposition that “[w]ithout legally cognizable damages, there is no legal right to relief, and ‘the Statute of Limitations cannot run until there is a legal right to relief’” (emphasis added). The reliance on LaBello, however, is misplaced. First, the lawsuit in LeBello was brought on behalf of an infant. The injury occurred at the time of the infant’s live birth, and the question was the timeliness of the claims asserted on the child’s behalf providing the infant plaintiff standing to assert all elements of the claim. That is in contrast to the case now before the Court, in which the injury in the plaintiffs’ wrongful birth claim was their being deprived of the opportunity to refuse the donor eggs and never conceive the infant. That harm occurred prior to (and regardless of) the birth. {01 885 056 .DOC X } 20 Second, and perhaps as importantly, there is a difference between damage and pecuniary loss. While the extraordinary expenses incurred in a wrongful birth case are what are recoverable, no one would suggest that the cause of action does not accrue until the first dollar of those expenses was incurred (which might be many months after the birth). The monetary compensation that may be recoverable in these cases may not begin until birth (or after), but that does not mean that may that the damage did not occur beforehand, when the parents were allegedly deprived of the chance not to proceed with the IVF with a “risky” donor egg. Prior Appellate Cases on Wrongful Birth Statute of Limitations Nevertheless, the courts of our State have reached different conclusions in addressing the statute of limitations in wrongful birth situations. The question was first addressed by the First Department in Jorge v. New York City Health & Hosps. Corp., 164 A.D.2d 650, 563 N.Y.S.2d 411 (1st Dept. 1991), revd. on other grounds, 79 N.Y.2d 905, 590 N.E.2d 239, 581 N.Y.S.2d 654 (1992). In Jorge, the defendant hospital erroneously informed the plaintiffs that the plaintiff-father had tested negative for sickle cell anemia. The plaintiff-mother was already known to be a carrier of this trait, and it was claimed that the pregnancy would have been terminated but for the misinformation provided. As it was, the infant was carried to term, and was born with the disease. {01 885 056 .DOC X } 21 When the case came before the same Appellate Division that decided the case now before this Court, the First Department specifically noted that the trial court “correctly determined” that the statute of limitations accrued on the date of the plaintiff father’s testing, i.e., the date of the actual malpractice. The action was ultimately deemed timely, however, based upon the continuous treatment doctrine. This Court then subsequently reversed the First Department’s order, concluding that the continuous treatment doctrine did not apply and ruling that the action “must be dismissed as untimely.” The Court left undisturbed the very thing that had led to the finding of untimeliness, the fact that the accrual date was the date of the alleged act of malpractice, the misreading of the father’s genetic test result. This, we submit, is precisely analogous to what we argue should be the measuring point in this case, the defendants’ alleged malpractice. In the instant matter, the First Department acknowledged that this Court “implicitly took the position that the wrongful birth claim accrued before the child was born,” but it nevertheless declined to rely on Jorge since “the plaintiff [in that case] did not argue that her claim accrued upon the birth of the child.” That, we would suggest, is beside the point: all the different Courts involved in deciding Jorge took the position that the cause of action accrued, like any other medical malpractice claim, on the date of the alleged medical malpractice. {01 885 056 .DOC X } 22 Three years after its decision in Jorge, this Court next had an opportunity to address the statute of limitations and how the statute interacts with birth in the LeBello case, supra. As discussed above, however, that case addressed not a wrongful birth claim, but rather the timeliness of an infant’s malpractice claim for prenatal injuries. While thus not dispositive of the case at bar, the LaBello decision still contains language that is pertinent to the present discussion. For example, this Court in that case took great pains to emphasize that nothing it was doing changed CPLR §214-a or the fact that said statute “admits of only two exceptions - continuous treatment and foreign object.” 85 N.Y.2d at 706. Rather, the Court insisted, it was only “tak[ing] the statute on its own terms and apply[ing] it to this envisaged circumstance,” specifically those of “nonjuridical, inchoate plaintiffs.” That is, of course, in marked contrast to the case at bar, which involves wrongful broth claims by plaintiff-parents who were at all pertinent times the very opposite of “nonjuridical” or “inchoate.” At least initially, it seemed clear in the appellate cases that followed LeBello that its rulings would not be “over-read” into the area of wrongful birth cases. For instance, In Scrofini v. Sebollena, 226 A.D.2d 523, 640 N.Y.S.2d 523 (2nd Dept. 1996), the Second Department confronted a fact pattern in which a misread genetic test led to the carrying to term of an infant with Thalassemia Major, a blood disorder. The action would have been considered timely if the action had accrued {01 885 056 .DOC X } 23 on the date of the infant’s birth. If measured from date of the actual malpractice, the action would have been time barred. In that case, the trial court ruled that the continuous treatment doctrine did not apply, and thus – measured from the time of the act or omission – the action was untimely, and the Second Department affirmed. Similarly, in Weed v. Mayers, 251 A.D.2d 1062, 674 N.Y.S.2d 242 (4th Dept. 1998), plaintiff-parents brought a wrongful birth claim after their child was born with retinoblastoma, a type of hereditary form of eye cancer. It was claimed that the defendant ophthalmologist committed malpractice by failing to warn of the risk that the child could develop this condition. The question before the Court was again one of statute of limitations, because if the timeliness of the action was measured from the date of birth, the case would be allowed to continue, whereas if it were measure from the time of the malpractice, it would be untimely commenced. Citing to both Jorge and LaBello, the Fourth Department held that, “Contrary to the contention of plaintiffs, their derivative causes of action did not accrue upon the birth of the children but on the date of the alleged malpractice.” It was not until 1999, when the Second Department handed down its decision in Ciceron v. Jamaica Hosp., 264 A.D.2d 497, 694 N.Y.S.2d 459 (2nd Dept. 1999), that we saw some deviation from the seemingly previously- understood sentiment that the statute of limitations in wrongful birth cases should {01 885 056 .DOC X } 24 be measure from the date of malpractice. There, the Appellate Division had before it a wrongful birth case involving a claim that the defendants should have performed a repeat sonogram, which it was alleged would have revealed the presence of the infant plaintiff’s spina bifida in time to allow the plaintiff mother to terminate the pregnancy. As before, if the action accrued on the date of the malpractice, the action would have been time barred; if measured from the date of birth, it was untimely. This time, however, the Second Department came to the completely contrary conclusion that it had come to in Scrofini, supra, a decision it did not even acknowledge existed, and ruled that because the wrongful birth action would not have been “enforceable” until a “live birth,” the clock should only have begun running from that birth. In support of this ruling, the Appellate Division’s brief decision relied on string citations to LaBello, supra, and Marchand v. Capone, 223 A.D.2d 686, 637 A.D.2d 455 (2nd Dept. 1996), both of which involved an action brought on behalf of an infant, not a “wrongful birth” claim brought by parents, and both of which, incredibly, pre-dated Scrofini, in which the same Court had reached the opposite (and, we submit, correct) result. Yet, relying on Ciceron, the First Department then followed suit and reversed its own prior Jorge precedent (and also not acknowledging that it was doing so) in Pahlad v. Brustman, 33 A.D.3d 518, 823 N.Y.S.2d 518 (1st Dept. {01 885 056 .DOC X } 25 2006), writing that, “We agree with the dissent that a cause of action for wrongful life accrues at the time of the infant plaintiff's birth.” Still, not all courts were adopting this switch. In Grossbaum v. Genesis Genetics Inst., LLC, Civil Action No. 07-1359 (GEB), 2011 U.S. Dist. LEXIS 62180, (DNJ June 10, 2011), aff’d, 489 Fed Appx 613 (3d Cir. 2012), a federal court was asked to apply New York law in determining whether wrongful birth claims brought by parents was time barred. The defendant in that case had tested several fertilized eggs of parents, who were both carriers of the mutation for cystic fibrosis, and reported that at least three of the embryos were safe for implantation. When the couple’s daughter was then born with cystic fibrosis, the plaintiffs brought a wrongful birth action based on the alleged negligence in screening the embryos. Citing to both CPLR §214-a and Jorge, the Court dismissed these claims, ruling that the timeliness of the action would have to be measured from the date of supposed malpractice, and not from the date of birth.3 It is with these aberrant deviations from what had previously appeared to be settled law that this case now finds itself before this Court. 3 The plaintiff would subsequently urge the appellate court to apply Ciceron instead, but as the plaintiff had not raised that issue before, the Third Circuit refused to address that contention. {01 885 056 .DOC X } 26 CONCLUSION No one disputes that the application of statute of limitations law sometimes yields “harsh” results. That is as true whether one is dealing with a failure to diagnose cancer case as it is when one is confronting a wrongful birth claim. Nevertheless, the legislature has adopted a very specific, very easily understood, statutory scheme to ensure that claims are allowed to linger only for finite periods of time before it becomes too late to bring them into litigation. Here, the legislature has prescribed that medical malpractice actions must be brought within two years and six months of the time of the act or omission complained of, and while the statute does create certain exceptions to this rule, there is no dispute that this wrongful birth claim does not fit amongst them so as to save it from its untimeliness. It is thus respectfully submitted that the Appellate Division’s decision and order was incorrectly decided, and that defendants’ motions to dismiss the “wrongful birth” medical malpractice action as time-barred should have been must be granted, and the plaintiffs' complaint dismissed. Dated: Woodbury, New York October 18, 2016 Nancy Ledy-Gurren, Esq. Of Counsel Respectfully submitted, Elliott J. Zucker, s . AARONSON RAB ORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant-Appellant ALAN COPPERMAN, M.D. 600 Third Avenue New York, NY 10016 (212) 593-6700 Ledy-Gurren Bass D'Avanzo & Siff, LLP 4 7 5 Park A venue South, NY 1 0016 (212) 447-1 105 {O l885056.DOCX } 27