Marie Dennehy, et al., Respondents,v.Alan B. Copperman, M.D., et al., Appellants.BriefN.Y.November 15, 2017To be Argued by: CARYN L. LILLING (Time Requested: 30 Minutes) APL-2016-00160 New York County Clerk’s Index No. 800349/11 Court of Appeals of the State of New York MARIE DENNEHY and JAMES DENNEHY, Respondents, – against – ALAN B. COPPERMAN, M.D., REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and REPRODUCTIVE MEDICINE ASSOCIATES — INTERNATIONAL, LLP, Appellants. BRIEF FOR APPELLANTS REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and REPRODUCTIVE MEDICINE ASSOCIATES — INTERNATIONAL, LLP Of Counsel: CARYN L. LILLING KATHERINE HERR SOLOMON MAURO LILLING NAPARTY LLP 130 Crossways Park Drive, Suite 100 Woodbury, New York 11797 Tel.: (516) 487-5800 Fax: (516) 487-5811 Appellate Counsel to: PETER C. KOPFF, LLC Attorneys for Appellants Reproductive Medicine Associates of New York, LLP and Reproductive Medicine Associates — International, LLP Date Completed: October 18, 2016 DISCLOSURE STATEMENT Pursuant to 22 NYCRR §§ 500.1(f), 500.13(a), Appellants, Reproductive Medicine Associates of New York, LLP and Reproductive Medicine Associates- International, LLP, have no parents or subsidiaries, but are affiliated with each other. TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii QUESTION PRESENTED ........................................................................................ 1 JURISDICTION ........................................................................................................ 1 PRELIMINARY STATEMENT ............................................................................... 2 STATEMENT OF FACTS ........................................................................................ 6 Background Facts ................................................................................................. 6 The Instant Action ................................................................................................ 8 The Order Appealed From .................................................................................. 10 The Appellate Division’s Decision ..................................................................... 11 ARGUMENT THE APPELLATE DIVISION IMPROPERLY CREATED A THIRD EXCEPTION TO THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS, WHICH AMOUNTS TO A DISCOVERY RULE...................... 13 It Was Improper For The Appellate Division To Create An Exception To CPLR §214-a, Which Creates A Discovery Rule For “Wrongful Birth” Actions ................................................................................... 15 The Statute Of Limitations Accrues On The Date Of The Alleged Malpractice Or The Date Of The Last Treatment ........................... 15 The First Department’s Holding Was Improper ............................................ 23 The Legislature Has Rejected The Discovery Rule ...................................... 29 The Appellate Division’s Holding Is Inconsistent With The History Of “Wrongful Birth” Claims In New York ........................................................ 31 The Appellate Division, Second Department Changed The Law Without Any Legal Basis Or Substantive Analysis ...................................... 38 ii The First Department Subsequently Cites Ciceron ....................................... 40 A Return To Pre-Ciceron Analysis By A Federal Court ............................... 42 Summary Of Argument ...................................................................................... 43 CONCLUSION ........................................................................................................ 46 iii TABLE OF AUTHORITIES Cases Ackerman v. Price Waterhouse 84 NY2d 535 (1994) .............................................................................................30 B.F. v. Reproductive Medicine Assoc. of New York, LLP 136 AD3d 73 (1st Dept 2015) ................................................................. 11, 12, 15 Becker v. Schwartz 46 NY2d 401 (1978) .............................................................................................31 Ciceron v. Jamaica Hosp. 261 AD2d 497 (2d Dep’t 1999)............................................................................10 Ciceron v. Jamaica Hosp. 264 AD2d 497 (2d Dept 1999) .............................................................................38 Flanagan v. Mt. Eden General Hosp. 24 NY2d 427 (1969) .............................................................................................16 Fleishman v. Lilly & Co. 62 NY2d 8880 (1984) ...........................................................................................21 Goldsmith v. Howmedica, Inc. 67 NY2d 120 (1986) .............................................................................................25 Grossbaum v. Genesis Genetics Inst., LLC CIV.A. 07-1359 GEB, 2011 WL 2462279 (DNJ June 10, 2011), aff'd, 489 Fed Appx 613 (3d Cir 2012) .......................................................................................42 Helgans v. Plurad 255 AD2d 554 (2d Dept 1998) .............................................................................25 Higby v. Mahoney 48 NY2d 15 (1979) ...............................................................................................21 Jorge v. New York City Health & Hosps. Corp. 79 NY2d 906 (1992) .............................................................................................24 iv Jorge v. New York City Health & Hosps. Corp. 164 AD2d 650 (1st Dept 1991) ............................................................................32 LaBarbera v. New York Eye & Ear Infirmary 91 NY2d 207 (1998) .............................................................................................20 LaBello v. Albany Med. Ctr. Hosp. 85 N.Y.2d 701 (1995) ................................................................................... passim Marchand v. Capone 223 AD2d 686 (2d Dept 1996) ...................................................................... 39, 40 Matter of New York County DES Litig. 89 NY2d 506 (1997) .............................................................................................22 Matter of Schinasi 277 NY 252 (1923) ...............................................................................................21 McCoy v. Feinman 99 NY2d 295 (2002) ...................................................................................... 22, 30 McDermott v. Torre 56 NY2d 399 (1982) .............................................................................................24 Nykorchuck v. Henriques 78 NY2d 255 (1991) ...................................................................................... 26, 45 Order of Railroad Telegraphers v. Railway Express Agency 321 US 342 (1944) ...............................................................................................17 O’Toole v. Greenberg 64 NY2d 427 (1985) .............................................................................................27 Pahlad v. Brustman 33 AD3d 518 (1st Dept 2006) ..............................................................................41 People v. Hobson 39 NY2d 4799 (1976) ...........................................................................................21 Plummer ex rel. Heron v. New York City Health & Hosps. Corp. 98 NY2d 263 (2002) .............................................................................................16 v Rizk v. Cohen 73 NY2d 98 (1989) ...............................................................................................19 Rodriguez v. Manhattan Medical Group, P.C. 77 NY2d 217 (1990) ...................................................................................... 19, 44 Schwartz v. Heyden Newport Chem. Corp. 12 NY2d 212 (1963) .............................................................................................19 Scrofini v. Sebollena 226 AD2d 523 (2d Dept 1996) .............................................................................36 Steinhardt v. Johns–Manville Corp. 54 NY2d 1008 (1981) ...........................................................................................19 Walton v. Strong Mem’l Hosp. 25 NY3d 554 (2015) .............................................................................................19 Weed v. Meyers 251 AD2d 1062 (4th Dept 1998) ..........................................................................38 Wood v. Carpenter 101 US 135 (1879) ...............................................................................................17 Young v. New York City Health & Hosps. Corp. 91 NY2d 291 (1998) ...................................................................................... 26, 45 Statutes CPLR § 201 ..............................................................................................................22 CPLR § 214 ..............................................................................................................16 CPLR § 214-a ................................................................................................... passim CPLR § 214-b ..........................................................................................................22 CPLR § 214-c ...........................................................................................................22 CPLR § 214-e ...........................................................................................................22 CPLR § 3211(a)(5) .................................................................................................... 9 vi CPLR § 3211(a)(7) ..................................................................................................... 9 Other Authorities Assembly Introducer's Mem in Support Bill A285A .............................................................................................................29 Fischer, The Limits of Statutes of Limitation 16 SW U. L. Rev. 1 ..............................................................................................17 Harshaw, Not Enough Time?: The Constitutionality of Short Statutes of Limitations for Civil Child Sexual Abuse Litigation 50 Ohio St. L.J. 753 ..............................................................................................17 Medical Socy. of the State of NY Mem. in Opposition Senate-Assembly Bill S911A, A285A ....................................................................30 QUESTION PRESENTED Does a medical malpractice action -- in which the plaintiff parents seek damages for the “wrongful birth” of their infant child -- accrue, for purposes of the statute of limitations, on the day of the alleged act of malpractice, or the last date of continuing treatment (as do all other malpractice actions not involving a “foreign object”)? JURISDICTION The legal issue on this appeal was raised in the motion to dismiss on behalf of defendants, Reproductive Medicine Associates of New York, LLP and Reproductive Medicine Associates – International, LLP, which was denied by an Order of the Supreme Court, New York County (Lobis, J.), dated December 10, 2013 (R. 7-16). A Notice of Appeal was served on behalf of Reproductive Medicine Associates of New York, LLP and Reproductive Medicine Associates – International, LLP on January 10, 2014 (R. 5.4-5.5). The Appellate Division, First Department, issued its Decision and Order on the appeal on December 17, 2015 (R. 1544-1546). On April 14, 2016, defendants Reproductive Medicine Associates 2 of New York, LLP and Reproductive Medicine Associates – International, LLP moved in the Appellate Division, First Department for leave to appeal to this Court. 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 was granted (R. 1542). PRELIMINARY STATEMENT This appeal, set in the context of a “wrongful birth” claim, raises a fundamental issue about the accrual of medical malpractice actions in this State, and whether the First Department, with its ruling, has improperly created a judicially-crafted “discovery” accrual rule (and exception) which (1) is unrecognized by statute, precedent or public policy; and (2) must fail, in any event, as it does not turn on “discovery of the injury” but on an arbitrary time period (date of birth), which merely represents a fortuitous date that renders these plaintiffs’ claim timely (as opposed to all cases similarly situated). In short, the Appellate Division’s decision is erroneous because it both disrupts established law and policy, and does not create a logical, or reliable, construct that will even-handedly preserve the salutary objectives of the statute of limitations. 3 The statute of limitations issue in this case arises in the context of medical infertility treatments (including the use of donor eggs in an IVF cycle) provided by defendants, Reproductive Medicine Associates of New York, LLP and Reproductive Medicine Associates – International, LLP (collectively “RMA”) and Dr. Alan Copperman, to plaintiff parents, Marie and James Dennehy. The substantive medical malpractice issue turns on whether the standard of care demanded routine population testing of all donors for the genetic mutation of Fragile X, or whether the standard required genetic testing of only donors who revealed either a disclosed family history or diminished ovarian reserve. This issue is not pertinent to the procedural context, but the timing and discreteness of the medical services provided by the defendant medical practice is most assuredly relevant. The treatment was rendered in 2008, and the plaintiff mother was discharged from RMA’s care on September 26, 2008, after which she received treatment from her private obstetrician (R. 21, 644). Accordingly, there is no ambiguity surrounding the fact that RMA’s treatment stopped on a date certain, well in advance of the birth of the child. From these undisputed facts, the First Department needed to consider whether the steadfast rule that a claim of malpractice accrues on the date of the malpractice (or the date of the last treatment) applies, but for reasons that lack any legal rationale than a single-case factual “fix” 4 towards timeliness, the First Department turned its back on policy, precedent and statute. In the Decision and Order appealed from, the Appellate Division, First Department simply cast aside the accrual-upon-act-or-omission-rule (CPLR § 214- a) and the last date of continuous treatment toll that governs (and has traditionally governed) the accrual date for the statute of limitations in medical malpractice actions1, for no apparent reason other than to transform the particular facts of this case as timely. The Appellate Division, in over-reaching, also failed to appreciate that the single “discovery accrual” applicable to malpractice actions, the “foreign object rule,” is a narrow discovery exception, statutorily crafted, and that any expansion of “discovery accruals” have rightfully (and historically) been referred to the Legislature. Indeed, the First Department, with its decision in this case, determining that a medical malpractice claim for “wrongful birth” accrues to the parents on the date of birth of the infant, has improperly judicially crafted a heretofore unknown “discovery rule,” which has been consistently rejected by the Legislature, and which, in fact, does not even operate (under the facts of this case) as a discovery rule. 1 The same statutory provision recognizes a single “discovery” accrual applicable only to “foreign objects,” which manifestly has no applicability to this action. 5 In sum, by holding that a “wrongful birth” action does not accrue until the birth of the infant, the Appellate Division concluded that the cause of action does not accrue until the infant’s impairment can be discovered, which resulted in a new, third exception to the accrual-upon-act-or-omission-rule for “wrongful birth” cases (The first exception being the continuous treatment doctrine, and the second being the foreign object discovery rule). The Appellate Division created this third exception despite (1) the longstanding precedent against a “discovery rule” in medical malpractice actions which, if established at all, should only be made by the Legislature; (2) the fact that the occurrence of date of birth did not provide the plaintiff parents with any lacking standing to pursue their rights (as it might have to an infant plaintiff); and (3) the clear circumstance that the “date of birth” does not, logically, provide a “discovery” point, in this case or other cases. Indeed, thoughtful analysis of the statutory history and precedent makes it plain that this decision is no more than a judicial “exception” crafted for the specific facts of this case, having neither public policy nor precedent to commend it. The First Department granted the defendants leave to appeal to this Court, asking whether its Decision and Order was “properly made.” For the reasons that follow, this Court must answer the First Department’s question in the negative. 6 STATEMENT OF FACTS Background Facts In or around the Spring of 2007, a friend recommended Dr. Copperman and RMA to plaintiffs for fertility treatment (R. 537-538). In Autumn of 2007, plaintiffs attended a presentation at RMA, where the IVF process was discussed, and ultimately decided to undergo IVF treatment at RMA with donor eggs (R. 562, 567, 585, 634). On April 2, 2008, an RMA employee informed plaintiffs that an egg donor was available and the following day, on April 3, 2008, plaintiffs accepted the donor (R. 709-713, 1140-1141). The donor had been screened pursuant to RMA’s protocols, which included certain genetic testing, but which did not, in keeping with the standard of care, then include routine screening for Fragile X (R. 21). In early August 2008, the plaintiff husband’s semen was collected and the donor egg was fertilized (R. 720). Thereafter, on August 11, 2008, the oocyte transfer took place, in which two embryos were implanted in the plaintiff wife (R. 703, 1174). Thereafter, from August through September 2008, plaintiffs followed up with RMA employees approximately twice per week (R. 722). Plaintiffs learned, 7 at these follow-up visits, that only one embryo of the two that were implanted had survived (R. 724-725). On September 26, 2008, plaintiffs were discharged from RMA and began treating with a private obstetrician (R. 644). After their discharge from RMA, plaintiffs did not treat with RMA or Dr. Copperman again (R. 728). Accordingly, in keeping with the steadfast accrual rules applicable to medical malpractice claims, the last date of treatment, and hence the accrual of any malpractice claim against RMA was September 26, 2008. Applying the two-and-a-half year statute to that accrual date, the statute should have expired on March 26, 2011. Plaintiffs treated with her obstetrician until the birth of the infant on April 11, 2009 (R. 733, 737). It is undisputed that, at the time of birth, the plaintiff parents did not “discover” any impairment of their son. In February 2010, Dr. Copperman received information that suggested that plaintiffs’ donor might have an unknown genetic mutation (R. 313). Shortly thereafter, on February 23, 2010, RMA arranged for the donor to be tested for Fragile X and the testing determined that she was a carrier for Fragile X (R. 313, 413). On May 11, 2010, Dr. Copperman called the plaintiff mother and informed 8 her that her donor was a carrier for Fragile X; he offered the plaintiffs a consultation with a genetics counselor, and ultimately a geneticist, to have the results of the donor’s testing explained and to follow with testing of the plaintiffs’ son (R. 751). The infant underwent a genetic test and on May 21, 2010, was diagnosed with full mutation Fragile X (R. 744-745, 753). Notably, plaintiffs thus “discovered” their son’s condition approximately one year prior to the expiration of the statute of limitations (the statute expired on March 26, 2011, and May 21, 2010 represents a date of discovery, nearly a year before). The Instant Action Nearly a year and a half after learning that the infant had Fragile X, on October 11, 2011, plaintiffs commenced this action against RMA and Dr. Copperman to recover the extraordinary expenses associated with raising their infant son (R. 48-59). Plaintiffs asserted a cause of action sounding in general medical malpractice and a cause of action sounding in lack of informed consent, and alleged that RMA and Dr. Copperman departed from accepted medical practice in failing to: (1) adopt and enforce proper policies and procedures to test egg donors; (2) properly test plaintiffs’ particular egg donor; (3) inform plaintiffs 9 of the risks, benefits, hazards, and alternatives associated with the treatment rendered and procedures performed; and (4) timely notify plaintiffs that their egg donor was a carrier of Fragile X (R. 52-53). Plaintiffs asserted that “[a] reasonably prudent person in the plaintiff’s position would not have undergone the treatments rendered and procedures performed if she had been fully informed of the risks, benefits, hazards, and alternatives connected with said treatment and procedures” (R. 53). Thus, their medical malpractice action invoked a “wrongful birth” claim, and the claimed damages were the “expenses incurred in raising a child with Fragile X Syndrome” (R. 52). Plaintiffs asserted three additional causes of action sounding in breach of contract, breach of express and implied warranties and warranties of merchantability, and negligence (R. 54-57). Plaintiffs further asserted a claim for punitive damages based upon the “intentional, purposeful, willful, knowing, fraudulent, and wanton concealment and misrepresentations of the defendants” (R. 58). RMA and Dr. Copperman moved separately, by Order to Show Cause, pursuant to CPLR §§ 3211(a)(5) and 3211(a)(7), to dismiss plaintiffs’ complaint on the basis that certain causes of action were time-barred and others failed to state 10 a cause of action (R. 17-47, 211-242). Plaintiffs opposed defendants’ motions (R. 1087-1107, 1483-1504). The Order Appealed From By Order of the Supreme Court, New York County (Lobis, J.), dated December 10, 2013, defendants’ motions were granted in part to the extent that plaintiffs’ cause of action sounding in breach of express and implied warranties and warranties of merchantability was dismissed (R. 16). However, the court denied those branches of defendants’ motions to dismiss plaintiffs’ “wrongful birth” medical malpractice and lack of informed consent claims on statute of limitations grounds (R. 13). In support of this holding, the court cited Ciceron v. Jamaica Hosp. (261 AD2d 497 [2d Dep’t 1999]), and noted that, in actions “arising out of injury to an infant, appellate authority provides that the parents’ cause of actions accrue upon the birth of the infant” (R. 13). As will be shown below, this authority was either inapplicable or improperly decided, and failed to render the instant action timely. Defendants’ motions were also denied to the extent that defendants’ challenges to plaintiffs’ causes of action sounding in breach of contract and negligence were deemed to be premature (R. 14-15). Finally, the motion court 11 declined to dismiss the punitive damages claim, concluding that striking the claim would similarly be premature (R. 15). The Appellate Division’s Decision The defendants appealed, and by Decision and Order of the Appellate Division, First Department, dated December 17, 2015, the trial court’s Order was modified to the extent that the plaintiffs’ causes of action sounding in breach of contract and negligence were dismissed (R. 1544-1545). The Court, however, sustained the “wrongful birth” medical malpractice claim, for the reasons set forth in the companion case, B.F. v. Reproductive Medicine Assoc. of New York, LLP (136 AD3d 73 [1st Dept 2015]), concluding that it was timely. In sustaining the “wrongful birth” claim, the Appellate Division properly identified the issue: “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” (id. at 77). It also, as noted, recognized that the issue had never been explicitly addressed by this Court. While the trial court relied upon this Court’s decision in LaBello v. Albany Med. Ctr. Hosp. (85 N.Y.2d 701 [1995]), in holding that the plaintiffs’ claim was timely, the Appellate Division appropriately concluded that LaBello “does not control the 12 present question concerning the time of accrual of a cause of action belonging to two adults, each of whom was fully capable of bringing suit at all relevant times” (id. at 78). The Appellate Division then went on to analyze the issue, and ultimately concluded that “a cause of action for wrongful birth accrues upon the birth of the impaired child, which renders the medical malpractice claim in this case timely” (id. at 79). As will be shown, based upon this Court’s precedent, the Appellate Division’s decision is not proper. After an analysis of well-settled law concerning the statute of limitations governing medical malpractice actions as well as the roles of the Judiciary and Legislature, this Court should conclude that a cause of action for “wrongful birth” accrues, like any other medical malpractice action, on the date of the alleged malpractice, and, as such, the instant action is untimely. Further facts will be subsumed in the Argument section of this Brief. In addition, the following Argument is nearly identical to the arguments raised in B.F. v. Reproductive Medicine Associates, LLP (APL-2016-00159). 13 ARGUMENT THE APPELLATE DIVISION IMPROPERLY CREATED A THIRD EXCEPTION TO THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS, WHICH AMOUNTS TO A DISCOVERY RULE. Known as the accrual-upon-act-or-omission rule, the statute of limitations for a medical malpractice action is two years and six months, and accrues, pursuant to CPLR § 214-a, on the date of the “act, omission or failure complained of.” Two exceptions to CPLR § 214-a “accrual” exist: (1) the continuous treatment doctrine and (2) the foreign object exception. Only the continuous treatment exception is applicable to facts of this case. Plaintiffs’ allegations of medical malpractice involve the screening of the donor, which occurred in mid to late 2008, and the plaintiff mother’s last date of treatment at RMA was on September 26, 2008. Applying CPLR § 214-a in its entirety, with allowance for the continuous treatment doctrine, the statute of limitations expired on March 26, 2011 (two and one half years from the last date of treatment). Since the plaintiffs did not commence this action until October 11, 2011, the action should have been deemed untimely. 14 However, the First Department avoided rightful dismissal by disregarding the accrual of the last date of treatment, and holding that a “wrongful birth” medical malpractice action does not begin to accrue, for purposes of the statute of limitations, until the birth of the impaired child. This was error, and clearly motivated by the fortuitous circumstance that the election of the date of birth as the date of accrual rendered the instant action timely. The error in the First Department’s holding is three-fold. First, the holding amounts to a third, judicially created exception to CPLR § 214-a, as it creates a distinct “discovery rule” for “wrongful birth” medical malpractice actions. Uninterrupted precedent, however, instructs that only the legislature may properly engraft a new “discovery” exception onto the malpractice statute of limitations rules. Second, the notion of a “discovery rule,” broader than the foreign object rule in medical malpractice cases, has repeatedly been rejected by the Legislature, rendering the decision in this case a rather clear, and contrary, example of judicial legislation. Third, and perhaps significant to the lack of internal integrity of the new “discovery rule,” it does not even function as a discovery rule, but only as a “savings provision,” because there is no evidence (particularly in genetic testing cases) that there is “discovery” of the impairment at the time of birth. For these 15 reasons, individually and collectively, the First Department’s determination should be reversed, and the defendants’ motion to dismiss granted. It Was Improper for the Appellate Division to Create an Exception to CPLR §214-a, Which Creates a Discovery Rule for “Wrongful Birth” Actions The Appellate Division, First Department held that a medical malpractice action, alleging “wrongful birth” damages, accrues, for purposes of the statute of limitations, “upon the birth of the impaired child” (B.F. v. Reproductive Medicine Associates of New York, LLP, supra, 136 AD3d at 79). Although it cited the accrual-upon-act-or-omission rule governing the statute of limitations for medical malpractice actions (CPLR § 214-a), it neither recognized that it was creating an exception to CPLR § 214-a for “wrongful birth” damage claims, nor did it acknowledge that it created a “discovery rule” for this medical malpractice action. Both of the foregoing factors mandate reversal of the First Department’s holding. The Statute of Limitations Accrues On The Date of the Alleged Malpractice Or the Date of the Last Treatment Pursuant to CPLR § 214-a, “[a]n action for medical…malpractice must be commenced within two years and six months of the act, omission or failure 16 complained of…” (CPLR § 214-a; see, Plummer ex rel. Heron v. New York City Health & Hosps. Corp., 98 NY2d 263, 267 [2002]). Prior to the enactment of CPLR § 214-a, medical malpractice actions were governed by the three-year period of limitations in CPLR § 214, which applied to negligence actions in general. Under CPLR § 214, no distinction was made based upon when the malpractice was discovered. In 1969, in Flanagan v. Mt. Eden General Hosp. (24 NY2d 427, 431 [1969]), however, this Court created a common law discovery rule for only foreign objects, with the period of limitations to commence when “the patient could have reasonably discovered the malpractice.” In Flanagan, this Court recognized “a fundamental difference” between negligent medical treatment cases involving medical judgment and cases in which a foreign object is left in a patient’s body, in which it cannot be claimed that the patient’s action is feigned or frivolous, such that the policy considerations for the statute of limitations were not at play in the latter (id. at 430). The policy considerations for statutes of limitation include “promot[ing] justice by preventing surprises through the revival of claims that have been 17 allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared” (Order of Railroad Telegraphers v. Railway Express Agency, 321 US 342, 348-349 [1944]); “promot[ing] repose by giving security and stability to human affairs” (Wood v. Carpenter, 101 US 135, 139 [1879]), judicial economy, discouraging courts from reaching dubious results, recognition of self- reformation by defendants, and the perceived unfairness to defendants of having to defend claims long past, particularly claims that rest on questions of professional diagnostic judgment (see, Fischer, The Limits of Statutes of Limitation, 16 SW U. L. Rev. 1, 1–2; see also, Harshaw, Not Enough Time?: The Constitutionality of Short Statutes of Limitations for Civil Child Sexual Abuse Litigation, 50 Ohio St. L.J. 753). Six years after Flanagan, in 1975, the Legislature enacted CPLR § 214-a, applicable to medical malpractice actions, which both reduced the general statute from three years to two years and six months and established two exceptions to the accrual-upon-act-or-omission rule: (1) the continuous treatment doctrine and (2) a foreign object exception, which represented a codification of Flanagan. Notably, however, Flanagan was codified in modified form to the extent that CPLR § 214-a put a one year limitation on the extension. In addition, rather than 18 starting the extended period when the patient could have reasonably discovered the malpractice, it started the period at the earlier of the time when the patient either discovered the foreign object or discovered facts which would have reasonably lead to discovery of the foreign object. In enacting CPLR § 214-a, the Legislature recognized that courts had improperly expanded the precedent set in Flanagan, and it sought to curtail Flanagan. In his Program Bill Memorandum, the Governor explained that although: the Court of Appeals sought to make it emphatically clear that its decision [in Flanagan] should be limited to foreign objects and should not become a ‘discovery’ rule ..., intermediate appellate courts rapidly sought to broaden it into a ‘discovery rule.’ For example, they applied [Flanagan] to instances where fixation devices were inserted in a patient’s body for the purpose of treatment and to chemicals introduced in the body for the purpose of treatment. The most damaging expansion was to a situation where nothing was introduced into the patient’s body but malpractice occurred in that while treating one organ the doctor caused damage to another. It is obvious that this latter extension has a potential of bringing virtually all medical malpractice cases under the discovery rule. This measure [CPLR § 214-a] would correct these abuses by limiting the discovery statute to ‘foreign objects’ and specifically excluding therefrom chemical compounds, fixation devices and prosthetic devices” (Governor’s Program Bill Mem. at 4, Bill Jacket, L. 1975, ch. 109). 19 Walton v. Strong Mem’l Hosp., 25 NY3d 554, 563-64 (2015). Most significantly, the Governor described the application of the “discovery rule” to medical malpractice cases not involving foreign objects as “abuses” (id.). Moreover, after enactment of CPLR § 214-a, this Court repeatedly admonished against judicial extension of the discovery rule beyond the scope the Legislature prescribed for it in the statute (see, Rodriguez v. Manhattan Medical Group, P.C., 77 NY2d 217 [1990]; Rizk v. Cohen, 73 NY2d 98, 104 n. 3 [1989]; Matter of Steinhardt v. Johns–Manville Corp., 54 NY2d 1008, 1011 [1981]; Schwartz v. Heyden Newport Chem. Corp., 12 NY2d 212 [1963]). Indeed, the exclusivity of the two exceptions to the accrual-upon-act-or- omission rule (continuous treatment and foreign object) was made clear by this Court in Rodriguez (supra), which involved the defendant’s failure to detect an IUD device that had become buried in the plaintiff’s uterine wall. In rejecting plaintiff’s attempt to invoke the “foreign object” exception to the statute of limitations, this Court reiterated that “[i]n the final analysis, this case is no different from any other medical malpractice action in which it is claimed that a physician negligently failed to detect a condition within the patient’s body requiring treatment or surgical removal” (77 NY2d at 224). 20 Indeed, this Court went on to state: Application of CPLR 214-a’s “foreign object” exception to this case would thus represent a giant step toward precisely what the statute’s drafters feared: “bringing virtually all medical malpractice cases under the discovery rule” (Bill Jacket, Governor’s Mem., op. cit., at 4). Since such a result is plainly inconsistent with the Legislature’s intentions, we are duty-bound to reject it. Id. Likewise, in LaBarbera v. New York Eye & Ear Infirmary (91 NY2d 207, 211 [1998]), this Court was again confronted with the foreign object exception, and confirmed that “the statutory codification limited the range of common-law development.” In affirming the dismissal of the complaint, this Court noted that “the codification of the judicially created ‘foreign object’ rule in CPLR 214-a constricts judicial expansiveness towards a more plaintiff friendly discovery rule” (id. at 213). While this Court noted that “this area of medical malpractice has engendered expressions of possible ‘unfairness’ suffered by the strict adherence to definitive rules and policies,” it concluded that “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” (id.). There must be “greater restraint in stepping in to undertake correction of what may be perceived as erroneous determinations with respect to questions 21 arising under legislative enactment” (Higby v. Mahoney, 48 NY2d 15, 18 [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” (id. at 18-19). In addition, “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” (id. at 19). Indeed, this Court has explicitly held that: “[p]recedents involving statutory interpretation are entitled to great stability [since]…in such cases courts are interpreting legislative intention and a sequential contradiction is a grossly arrogated legislative power” (id., quoting Matter of Schinasi, 277 NY 252, 265-266 [1923]). More importantly, “if the precedent or precedents have ‘misinterpreted’ the legislative intention, the Legislature’s competency to correct the ‘misinterpretation’ is readily at hand” (id., quoting People v. Hobson, 39 NY2d 479, 489 [1976]; see also, Fleishman v. Lilly & Co., 62 NY2d 888, 890 [1984][“Any departure from the policies underlying these well-established precedents is a matter for the Legislature and not the courts”]). Indeed, in addition to correcting the misinterpretation of Flanagan by enacting CPLR § 214-a, the Legislature has also seen fit to ameliorate the statute of 22 limitations’ effects by enacting a date of discovery rule in other circumstances: (1) exposure to Agent Orange during the Vietnam War (CPLR § 214-b); (2) exposure to other toxic substances (Matter of New York County DES Litig., 89 NY2d 506 [1997]; CPLR § 214-c); and (3) revival of causes of action after the applicable limitations period expired in personal injury actions arising from infusion of AIDS-tainted blood products (CPLR § 214-e). In McCoy v. Feinman (99 NY2d 295, 306 [2002]), in concluding that a plaintiff’s legal malpractice action was time-barred, this Court recognized the foregoing legislation and noted that “[i]f the Legislature chooses not to apply date of discovery principles in other professional malpractice settings, this Court should not tread where the Legislature refuses to go” (id. at 307 n 2). Notably, in McCoy, this Court also cited CPLR § 201, which provides that “[n]o court shall extend the time limited by law for the commencement of an action.” Based upon all of the foregoing, two things are manifest: (1) only two exceptions to (CPLR § 214-a) the accrual-upon-act-or-omission rule for medical malpractice actions exist and (2) any additional exceptions must be effectuated by the Legislature. 23 The First Department’s Holding was Improper Applying this Court’s well-settled precedent to this case, this Court should conclude that the plaintiff’s “wrongful birth” medical malpractice action accrued on the last date of treatment, not on the date of the infant’s birth, rendering the plaintiffs’ action untimely. In holding that a “wrongful birth” medical malpractice action accrues on the date of birth of the impaired infant, the First Department focused on the fact that “[w]hether [the] legally cognizable injury will befall potential parents as the result of the gestation of an impaired fetus cannot be known until the pregnancy ends” (B.F., supra, 136 AD3d at 79). The Court went on to reason that “[o]nly if there is a live birth will the injury be suffered,” noting that “the natural course of any pregnancy is a matter of substantial uncertainty” (id. at 87 n 3). The Court couched its holding in terms of the elements of the claim such that “until there is a live birth, the existence of a cognizable legal injury that will support a wrongful birth cause of action cannot even be alleged” (id. at 79). This characterization of the claim is, most certainly, wrong, as it mischaracterizes the description of the “injury” for the precise purpose of defining a discovery rule. When, for instance, a physician misreads a biopsy, and the 24 results of that medical conduct are not discovered until after the statute of limitations has elapsed, there can be no alteration of the accrual rules, with the argument that until the “injury” is known, a claim cannot be alleged (see, McDermott v. Torre, 56 NY2d 399 [1982]; Jorge v. New York City Health & Hosps. Corp., 79 NY2d 905 [1992]). The issue, rather, turns on when the treatment was rendered, and when it fairly can be said to have concluded (accrual- upon-act-or-omission rule and continuous treatment doctrine). The plaintiffs, in this “wrongful birth” context, are alleging that the purported malpractice (a failure to test the donor for Fragile X) interfered with their reproductive choice to test for Fragile X, and terminate the pregnancy. Indeed, they had that very cause of action (and could have alleged it) at the time of rightful accrual (the last day of treatment), and as the facts of this case show, their right to do so was not “augmented” by the mere birth of their child, because they “discovered” no further facts, nor gained no further judicial standing by the mere birth. So, quite obviously, the First Department merely “manufactured” a “discovery rule,” running from the time of birth, because the “math” in this particular case seems to save the plaintiffs’ untimely cause of action. Consistent with traditional principles, there was a cognizable cause of action to the parents at the time of the malpractice and the First Department’s struggle to reach a case-specific result does damage to both precedent and logic. 25 Accordingly, while not acknowledged by the First Department, not only did the Court create a third exception to CPLR § 214-a, but its holding amounted to an ill-crafted “discovery rule” that states that a cause of action with wrongful life damages does not accrue until birth, when injury is discovered, despite the fact that injury is not “destined” to be discovered at birth, nor was it so discovered in this case. As noted, the First Department’s reasoning has consistently been rejected in many untimely medical malpractice claims (Goldsmith v. Howmedica, Inc., 67 NY2d 120, 123-124 [1986]). For example, an action for a delay in diagnosing cancer accrues on the date the physician failed to diagnose cancer, not on the date the delay in diagnosis is discovered or the date the plaintiff has incurred or can identify damages. Indeed, as eloquently noted by the Appellate Division, Second Department, in Helgans v. Plurad (255 AD2d 554, 557 [2d Dept 1998], quoting Goldsmith v. Howmedica, Inc., supra, 67 NY2d at 124): 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 26 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. The fact that a plaintiff in a “wrongful birth” medical malpractice action may not be in a position to identify or may not yet have incurred damages until after the birth of the impaired child, however unfortunate, should not alter the date the medical malpractice cause of action accrues for purposes of the statute of limitations. A patient who has cancer, but experienced a misdiagnosis on a date certain may not incur an injury at all, or may not incur an injury or damages until several months or years after the misdiagnosis when the cancer metastasizes. Those factors, however, do not alter the date the patient’s medical malpractice action accrues (Young v. New York City Health & Hosps. Corp., 91 NY2d 291 [1998]; Nykorchuck v. Henriques, 78 NY2d 255, 257 [1991]). Likewise, here, on the date of the infant’s birth, the day the plaintiffs propose should trigger the accrual of the statute of limitations, the plaintiffs had yet to incur any damages as they were unaware of the infant’s condition. In support of its holding in this case, the First Department cited O’Toole v. Greenberg (64 NY2d 427 [1985]), in concluding that a live birth was required to allege a “wrongful birth” claim. Most significantly, however, and overlooked by 27 the First Department, is that while the O’Toole Court addressed whether the parents of a healthy child suffered a “cognizable legal harm,” because it ultimately concluded that the plaintiffs had failed to state a valid cause of action, it did not address when the statute of limitations for such an action would accrue, which is the issue in the case at bar. The First Department also failed to recognize the distinction between an injury and the damages that flow from that injury. The Court quoted LaBello v. Albany Med. Ctr. Hosp. (supra, 85 NY2d 701 [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’” (B.F., supra, 136 AD3d at 79 [emphasis added]). In LaBello, however, the analysis pertained to the injury to the child, who needed to be born alive to have all the elements (including standing) to state a cause of action. Thus, in that case, the injury occurred at the time of the infant’s live birth, thus, providing the infant plaintiff standing to assert all elements of the claim. Here, the plaintiffs were allegedly injured when they were deprived of the opportunity to refuse the donor eggs, decline to conceive the infant, or terminate the pregnancy. The alleged malpractice and injury (conception or a denial of the 28 right to terminate the pregnancy) occurred prior to the infant’s birth with both parents having standing to bring an action. That plaintiffs had yet to incur any pecuniary damages as a result of the alleged malpractice was not a barrier to bringing the action and should have no bearing on when the cause of action accrued for purposes of the statute of limitations, however unfair that fact may seem. As noted by the First Department, the permissible compensation in a “wrongful birth” case is the extraordinary costs incurred in caring for the impaired child. The fact that costs had not yet been incurred at the time of the alleged malpractice is not a barrier to suit, and is irrelevant to the academic ascertainment of the accrual date for the statute of limitations. Plaintiff need only assert an injury, i.e. the deprivation of the opportunity to not conceive the infant plaintiff, or to terminate an already existing pregnancy, to set forth a claim for “wrongful birth.” The amount of compensation (damages) to be awarded is not a necessary element to assert the cause of action. Based upon the foregoing, this Court must reject the First Department’s reasoning and conclude that its decision is improper. 29 The Legislature Has Rejected the Discovery Rule While it would be the role of the Legislature, not this Court, to enact an exception to CPLR § 214-a, to alter the accrual date of a medical malpractice action, with “wrongful birth” damages, to the date of the impaired child’s birth, it is notable that the Legislature has refused to enact such a “discovery rule” for medical malpractice cases. Known as “Laverne’s Law,” proposed legislation to 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 Senate in the Spring of 2016. The proposed legislation has been introduced no less than 16 times in the last 20 years and has been rejected each year (Assembly Introducer’s Mem in Support, Bill A285A). While supporters of the proposed legislation maintain that the current rule is unfair to the extent that a patient’s injury is often not discovered until after the statute of limitations has expired, the Legislature is also mindful of the burden on the medical community since the legislation could lead to enormous increases in the cost of liability insurance for physicians and hospitals at a time when no increases can be tolerated. Indeed, the legislation has the potential to quadruple the 30 length of the statute of limitations, causing a significant increase in medical liability premiums. While other states have adopted a discovery rule for medical malpractice actions, it is well known that malpractice payouts in New York are far out of proportion to the rest of the country and New York has the highest per- capita medical liability payments of the country (see, Medical Socy. of the State of NY Mem. in Opposition, Senate-Assembly Bill S911A, A285A). As this Court has held, “the limitations period could become incalculable were we to adopt plaintiff’s argument…” (McCoy v. Feinman, 99 NY2d 295, 306 [2002]). “The policies underlying a Statute of Limitations -- fairness to defendant and society’s interest in adjudication of viable claims not subject to the vagaries of time and memory -- demand a precise accrual date” (id., quoting Ackerman v. Price Waterhouse, 84 NY2d 535, 542 [1994]). In sum, this Court must conclude that the First Department’s holding improperly created a third exception to CPLR § 214-a, which amounts to a “discovery rule,” which has been repeatedly rejected by both the courts of this State and the Legislature. Moreover, the discovery rule constructed is contrary to the expressed public policy of this State, and arbitrarily picks “the date of birth” as 31 a purported discovery accrual, despite the fact that the date of birth played no part in the “discovery” in this case.2 The Appellate Division’s Holding is Inconsistent with The History of “Wrongful Birth” Claims in New York This Court first sanctioned a claim for “wrongful birth” in Becker v. Schwartz (46 NY2d 401 [1978]). There, plaintiffs brought a claim on behalf of their infant son, who was born with Down’s Syndrome, alleging that defendants -- obstetric and gynecologic specialists who treated the plaintiff mother throughout her pregnancy -- failed to inform plaintiffs of the increased risk of women over the age of 35 giving birth to a baby affected with Down’s Syndrome (id. at 406). Plaintiffs further claimed that defendants failed to offer an available amniocentesis test, which would have determined that the fetus had Down’s Syndrome (id.). According to plaintiffs, if they had been accurately advised of the chances that their child would be born with Down’s Syndrome and had been made aware of the availability of the amniocentesis test, they would have undergone the test and, if it 2 It is also surprising that the First Department would seek to create a judicial discovery rule on the facts of this case, where the undisputed proof establishes that plaintiffs made their “discovery” of their “injury” almost one year prior to the expiration of the statute of limitations. This most certainly is not an instance where the plaintiffs, by the fortuities of the statute of limitations’ accrual rules, had no reasonable time to seek remedy. 32 indicated that the fetus would be born with Down’s Syndrome, they would have terminated the pregnancy (id. at 411). In Becker, this Court permitted the plaintiff parents to assert a “wrongful birth” claim “predicated upon a breach of a duty flowing from defendants to [plaintiffs], as prospective parents, resulting in damage to plaintiffs for which compensation may be readily fixed” (id. at 413). Notably, this Court went on to note that it was not necessary to “determine with particularity what items of expense or loss may properly be taken into account in computation of the damages recoverable [since] [s]uch questions properly await consideration and resolution presumably on trial, after liability has been proven, if it can be” (id.). The statute of limitations governing a “wrongful birth” claim was first addressed in 1991 by the Appellate Division, First Department in Jorge v. New York City Health & Hosps. Corp. (164 AD2d 650 [1st Dept 1991], revd. on other grounds, 79 NY2d 905 [1992]). In Jorge, plaintiff parents brought an action against the hospital where the plaintiff mother received genetic counseling and prenatal care. Knowing that she was a carrier of the sickle cell anemia trait, the plaintiff mother requested that the plaintiff father be tested for the trait as well (164 AD2d at 651). The defendant hospital erroneously informed plaintiffs that the 33 father tested negative and plaintiffs, who would have otherwise terminated the pregnancy, carried the infant to term under the care of defendant and the infant was born with the disease (id.). 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 - the date of the actual malpractice (id. at 652). The action was ultimately deemed timely based upon the continuous treatment doctrine, however, the Appellate Division made clear that the cause of action accrued on the date of the alleged malpractice (and consideration of the continuous treatment rule), but there was no discussion, or consideration of a “discovery” accrual at birth. This Court subsequently reversed the First Department’s order, concluding that the continuous treatment doctrine did not apply and the action “must be dismissed as untimely” (79 NY2d at 906). Most significantly, however, in dismissing the parent’s “wrongful birth” claim, this Court implicitly concluded that the claim accrued on the date of “the alleged act of malpractice - the misreading of the father’s genetic test result” (id.), and that the “birth” of the child had no place in the analysis of accrual of the parents’ cause of action. 34 Importantly, in Jorge, if this Court had determined that the date of accrual was the date of the infant’s birth, the action would have been timely. In this regard, the alleged malpractice was committed on January 16, 1985; the infant was born on August 30, 1985; and the action was commenced on September 11, 1986 (164 AD2d at 651). Thus, if the claim was deemed to accrue on the date of the infant’s birth, the statute of limitations [which was one year and 90 days] would have expired on November 30, 1986, and the action would have been timely. However, using the date of the alleged malpractice as the accrual date, the statute of limitations expired on April 16, 1986 and, therefore, the action was untimely. Thus, since the action was dismissed, this Court implicitly rejected the notion that an action for “wrongful birth” accrues on the date of the infant’s birth, rather than on the date of the alleged malpractice pursuant to CPLR § 214-a (or the last date of continuous treatment, should continuous treatment exist). In the case at bar, the First Department acknowledged that this Court “implicitly took the position that the wrongful birth claim accrued before the child was born,” but declined to rely on Jorge since “the plaintiff [in that case] did not argue that her claim accrued upon the birth of the child” (B.F., supra, 136 AD3d at 79). Regardless of the arguments raised by the parties, it is significant that the different Courts involved in deciding Jorge all took the position that the cause of 35 action accrued, like any other medical malpractice claim, on the date of the alleged medical malpractice. In 1995, this Court addressed the timeliness of an infant’s malpractice claim for prenatal injuries in LaBello v. Albany Med. Ctr. Hosp. (supra, 85 NY2d 701 [1995]). While this Court determined that the infant’s claim accrued upon the date of the infant’s birth, as acknowledged by the First Department, the holding in LaBello is irrelevant to the instant analysis since it did not involve a parent’s claims for “wrongful birth,” but rather a malpractice cause of action brought on behalf of the infant, whose birth was a necessary precedent to the existence of a cause of action. While the holding in LaBello does not represent precedent on the instant issue, some of this Court’s rationale is pertinent to the analysis. In LaBello, this Court discussed CPLR § 214-a at length and explicitly noted that it was not creating another exception to the rule. This Court first acknowledged that “CPLR § 214-a states the accrual-upon-act-or-omission rule and admits of only two exceptions - continuous treatment and foreign object” (85 NY2d at 706). Then, it specifically noted that it was not creating “a new exception” to the rule, but rather was “tak[ing] the statute on its own terms and apply[ing] it to this unenvisaged 36 circumstance” (id.). In this regard, since “CPLR 214-a simply does not cover accrual for nonjuridical, inchoate plaintiffs,” this Court reasoned that it needed “to fill the gap by traditional interpretation and common-law development and application” (id.). Here, on the other hand, taking the statute on its own terms results in an accrual date as the last date of treatment. Most significantly, immediately following LaBello, the law concerning the accrual date for a parent’s “wrongful birth” claim remained the same. For example, in 1996, the Appellate Division, Second Department, citing Jorge, dismissed an action as untimely where the alleged act of malpractice, a misread genetic test, occurred more than two-and-one-half years prior to the date the action was commenced, despite the fact that the infant’s date of birth was within the two-and-one-half year period (Scrofini v. Sebollena, 226 AD2d 523 [2d Dept 1996]). Specifically, in Scrofini, the defendant obstetrician confirmed the plaintiff’s pregnancy and informed her that she was a carrier of the trait for Thalassemia Major, a blood disorder (Scrofini Def. Resp. Br. at 1-2, 1996 WL 34434878). On October 24, 1989, the plaintiff husband was tested to determine if he was also a carrier of the trait (id.). Two days later, the results were reported to be normal 37 (id.). The plaintiff mother thereafter gave birth and the child was later diagnosed with Thalassemia Major (id.). The date of the infant’s birth was June 21, 1990 (id.). Thereafter, in June 1992, plaintiffs brought a claim against defendants for “wrongful birth” (Scrofini Plt. App. Br. at 4, 1995 WL 17856156). The trial court determined that the statute of limitations began to run on October 24, 1989, the date of the alleged malpractice, and expired on April 24, 1992 (id. at 4). Holding that the continuous treatment doctrine did not apply, the trial court granted defendants’ motions for summary judgment and dismissed plaintiffs’ complaint as time-barred (id.). The Second Department, citing Jorge, affirmed, holding that the trial court “correctly determined that the continuous treatment doctrine does not apply and dismissed the action as untimely” (226 AD2d at 523). Importantly, like in Jorge, if the statute of limitations was determined to accrue on the date of the infant’s birth, the action would have been deemed timely. As noted, the action was commenced only two years and one month after the infant’s birth. Clearly, however, since the trial court held that the statute of limitations accrued on the date of the malpractice and the Second Department upheld such decision, the Second Department properly took the position that a “wrongful birth” claim accrues on the date of the alleged malpractice. 38 Two years later, the Fourth Department held similarly in Weed v. Meyers (251 AD2d 1062 [4th Dept 1998]). There, plaintiff parents alleged that defendant, an ophthalmologist, committed medical malpractice in failing to warn plaintiffs of the risk that their children could develop retinoblastoma, a hereditary form of eye cancer, based upon the father’s hereditary makeup (id.). Defendant treated the plaintiff father for the condition and periodically saw the father for routine eye exams for approximately four years thereafter, including while the infants were in utero (id.). The children were born with the condition, and the parents brought a “wrongful birth” claim seeking to recover the extraordinary expenses arising out of raising their disabled children. The trial court dismissed plaintiffs’ complaint and the Fourth Department affirmed, citing Jorge and comparing LaBello, and explicitly held that the parents’ causes of action “did not accrue upon the birth of the children but on the date of the alleged malpractice” (id.). The Appellate Division, Second Department Changed the Law Without Any Legal Basis or Substantive Analysis In 1999, the Second Department was faced with the same issue it faced in Scrofini (supra) but inexplicably issued a contrary holding. In Ciceron v. Jamaica Hosp. (264 AD2d 497 [2d Dept 1999]), the Court erroneously applied the holding of LaBello to a parent’s “wrongful birth” claim, and concluded that the claim 39 accrues, for purposes of the statute of limitations, on the date of the infant’s birth, rather than on the date of the alleged malpractice. In Ciceron, the plaintiffs alleged that the defendants departed from accepted practice in failing to perform a repeat sonogram, which would have revealed the presence of the infant plaintiff’s spina bifida in time to allow the plaintiff mother to terminate the pregnancy. The Appellate Division’s brief decision confirms the parents’ right to maintain a claim for “wrongful birth,” which sought “recovery for the extraordinary costs incurred in raising a child with this disability” (id. at 498). The Court then went on to conclude that the trial court erred in dismissing the claim as untimely (id.): We also agree with the plaintiffs that the fourth cause of action [for “wrongful birth”] would not have been enforceable until after the live birth of the infant plaintiff, so that it accrued at the time of birth, rather than at the time of the earlier alleged malpractice (see, LaBello v. Albany Med. Ctr. Hospital, 85 NY2d 701; Marchand v. Capone, 223 AD2d 686). The infant plaintiff was born on June 7, 1993, and this action was commenced within 2 ½ years thereafter, on or about October 30, 1995. The Supreme Court therefore erred in dismissing the fourth cause of action as time-barred. Not only did the Second Department fail to even acknowledge that it was deviating from its own precedent, but it carved out an exception to CPLR § 214-a, 40 without undertaking any substantive analysis and based upon a misapplication of case law. Indeed, the Court failed to articulate any consideration of principles of stare decisis, and despite carving out an exception to a statutory rule, it did not even mention the statute or provide an analysis to support this judicially-created exception to CPLR § 214-a. Instead, the Ciceron Court cited LaBello v. Albany Med. Ctr. Hosp. (supra), which, as noted, addressed an infant’s claim for medical malpractice, not a parent’s claim for “wrongful birth.” In addition, the Court improperly relied upon Marchand v. Capone (223 AD2d 686 [2d Dept 1996]), which also involved an action brought on behalf of an infant, not a “wrongful birth” claim brought by parents. The only conclusion that can be reached is that Ciceron was wrongly decided by the Second Department. The First Department Subsequently Cites Ciceron Despite the contrary statutory and Court of Appeals precedent, and the absence of any substantive analysis concerning the significant change in the law, Ciceron was cited by the First Department for the proposition that a parent’s claim for “wrongful birth” accrued on the date of the infant’s birth (see, Pahlad v. Brustman, 33 AD3d 518 [1st Dept 2006]). In Pahlad, the First Department, citing 41 Ciceron, concluded that a parent’s cause of action for “wrongful life,” which was misidentified and should have been identified as “wrongful birth,” accrued at the time of the infant’s birth. Notably, the disparity between the date of the alleged malpractice and the date of the infant’s birth was not dispositive in Pahlad and plaintiffs’ claims were nevertheless dismissed since, even using the date of the infant’s birth as the accrual date, the action was untimely. As such, while the First Department noted in Pahlad that “a cause of action for wrongful life accrues at the time of the infant plaintiff’s birth” (33 AD3d at 519), it concluded in the Decision and Order appealed from that “[t]he statement in Pahlad, however, is dictum since the action (which the majority held to be time-barred) was commenced more than three years after the child was born” (B.F., supra, 136 AD3d at 87 n 2). In addition, while Pahlad was affirmed by this Court, this Court did not address when the cause of action accrued, since it was not disputed by the parties, and addressed only whether the equitable estoppel defense was available to toll the statute of limitations (8 NY3d 901 [2007]). 42 A Return to Pre-Ciceron Analysis by a Federal Court Despite Ciceron and Pahlad, in 2011, a federal court dismissed plaintiff parents’ “wrongful birth” claim as time-barred, concluding that the statute of limitations accrued at the time of the malpractice (Grossbaum v. Genesis Genetics Inst., LLC, CIV.A. 07-1359 GEB, 2011 WL 2462279 [DNJ June 10, 2011] affd, 489 Fed Appx 613 [3d Cir 2012]). In Grossbaum, plaintiffs, a husband and wife who were both carriers of the mutation for cystic fibrosis, sought the services of defendant facility to fertilize several of the wife’s eggs and test the resulting embryos for the relevant genetic mutation (2011 WL 2462279 at *1). Defendant facility reported that at least three of the embryos were safe for implantation (id.). When their daughter was born with cystic fibrosis, plaintiffs sued, alleging that the defendant facility was negligent in screening the embryos. In a lengthy decision, the court dismissed the action as against the facility, citing both CPLR § 214-a and Jorge, and held that the alleged date of malpractice -- the facility’s improper rendering of the results of the screening -- was the date upon which the statute of limitations began to run (2011 WL 2462279 at *9). On appeal, plaintiffs argued that the statute of limitations began to run upon the infant’s birth pursuant to Ciceron, however, the Appellate Court refused to address the issue because it was raised for the first time on appeal (489 Fed Appx 43 at 617). Had it been addressed, the Court could have, and should have concluded that Ciceron was a departure and aberration that should not be followed. Summary of Argument Contrary to all of the foregoing principles, the First Department held that a medical malpractice action, alleging “wrongful birth” damages, accrues, not on the date of the alleged malpractice (or last date of treatment), but on the date of the infant’s birth, which improperly amounts to a judicially created third exception to CPLR § 214-a that is a poorly crafted “discovery” rule, purportedly keyed to the date of birth, which is contrary to precedent, the uninterrupted public policy of this state, and which is a case-specific “saving” decision that does not withstand logical analysis. Applying this Court’s prior analysis must result in a reversal of the First Department’s Decision and Order. The instant case is no different from any other medical malpractice action. Rightfully applying the continuous treatment doctrine to the facts of this case, the action is manifestly untimely. Moreover, the fact that the alleged medical malpractice is asserted in a “wrongful birth” context should not alter the accrual date of the statute of limitations. As this Court reiterated in 44 Rodriguez v. Manhattan Medical Group, P.C. (supra, 77 NY2d at 220), “[t]raditionally, the limitations period for bringing a medical malpractice action has been held to run from the date that the last act of alleged malpractice was performed rather than from the date that the resulting injury was discovered” (id. at 220). From the inception of the cause of action for “wrongful birth” the claim was deemed to have accrued on the date of the alleged malpractice. While this Court has yet to directly address the issue, in Jorge, this Court implicitly concluded that the cause of action accrues on the date of the alleged malpractice, or on the last date of continuous treatment (should such exist); otherwise, the claim in Jorge would have been deemed timely. No basis exists for a “wrongful birth” claim to be treated any differently than any other medical malpractice claim. The rules of accrual express decades of precedent and policy that are not to be “undone” for a single case outcome, particularly one where the plaintiffs are not in the category of litigants who were foreclosed a remedy by a wholesale failure of discovery. 45 Indeed, even in instances where there is a potential for injured plaintiffs to be wholly foreclosed from recovery, this State has steadfastly invoked the applicable statute of limitations, no matter how unfortunate the result (see, Young v. New York City Health & Hosps. Corp., supra, 91 NY2d 291 [1998] [dismissing complaint as untimely where defendant failed to communicate results of mammogram revealing nodular densities to plaintiff and subsequent mammogram, nearly one year later, required biopsy which revealed cancer]; Nykorchuck v. Henriques, supra, 78 NY2d 255, 257 [1991] [dismissing complaint, which was commenced more than eight years after lump in breast was first brought to defendant’s attention and more than four years after plaintiff’s last appointment with defendant in connection with another medical condition, as barred by the two- and-one-half year statute of limitations for medical malpractice]). Further, as noted, the fact that the statute of limitations accrues on the date of the malpractice did not, in any way, work a hardship upon plaintiffs here. Plaintiffs would have had until March 26, 2011 to institute an action. As noted above, Dr. Copperman informed the plaintiffs in May of 2010 that the donor was a Fragile X carrier. Thus, plaintiffs had almost a year to bring the instant action after learning that the donor was not tested for Fragile X and was, in fact, a carrier, but instead waited until October 2011. CONCLUSION Based upon all of the foregoing, this Court should conclude that the Appellate Division's Decision and Order of December 17, 2015, was wrongly decided. The defendants ' motions to dismiss the "wrongful birth" medical malpractice action must be granted, and the plaintiffs' complaint dismissed. Dated: Woodbury, New York October 18,2016 Of Counsel CARYN L. LILLING KATHERINE HERR SOLOMON Respectfully submitted, MAURO LILLING NAP ARTY LLP By:~&~ 100 Crossways Park Drive West, Ste. 310 Woodbury, NY 11797 (516) 487-5800 Appellate Counsel to: Peter C. Kopff, LLC Attorneys for Defendants-Appellants REPRODUCTIVE MEDICINE ASSOCIATES OF NEW YORK, LLP and REPRODUCTIVE MEDICINE ASSOCIATES-INTERNATIONAL, LLP 46 WORD COUNT CERTIFICATION Pursuant to Rule 500.11 (m), Caryn L. Lilling, as appellate counsel for Appellant Reproductive Medicine Associates of New York, LLP, certifies that the word count for the text of this submission was obtained through the word count software on Microsoft Word, the word-processing system used to prepare the submission and states that the word count is 9,697.