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. REPLY 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 100 Crossways Park Drive, Suite 310 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: February 16, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ..................................................................................................... 1 ARGUMENT PLAINTIFFS HAVE FAILED TO CITE TO A SINGLE AUTHORITY THAT WOULD JUSTIFY THE FIRST DEPARTMENT’S JUDICIALLY CREATED, THIRD EXCEPTION TO CPLR § 214-A ........................................................ 5 CPLR § 214-a is Controlling .................................................................................. 5 The Timing of any Damages Sustained Is Not Relevant to the Accrual Date of this Medical Malpractice Action ................................................. 7 Precedent Confirms the Accrual Date for a “Wrongful Birth” Action Is the Date of the Alleged Medical Malpractice ....................................... 10 The First Department’s Holding Amounts to an Improper Third, Judicially Created Exception to CPLR § 214-a ......................................... 12 CONCLUSION ........................................................................................................21 ii TABLE OF AUTHORITIES Cases Ackerman v. Price Waterhouse, 84 NY2d 535 (1994) ............................................................................................... 1 Aetna Life & Cas. Co. v. Nelson, 67 NY2d 169 (1986) .............................................................................................13 Becker v. Schwartz, 46 NY2d 401 (1978) .............................................................................................13 Blanco v. American Tel. & Tel Co., 90 NY2d 757 (1997) ................................................................................ 12, 13, 14 Britt v. Legal Aid Socy., 95 NY2d 443 (2000) ............................................................................................... 1 Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 NY2d 399 (1993) .........................................................................................1, 17 Flanagan v. Mt. Eden General Hosp., 24 NY2d 427 (1969) ................................................................................ 14, 15, 16 Goldsmith v. Howmedica, Inc., 67 NY2d 120 (1986) ............................................................................................... 9 Grossbaum v. Genesis Genetics Inst., LLC, CIV.A. 07-1359 GEB, 2011 WL 2462279 (DNJ June 10, 2011) ........................11 Jensen v. Gen. Elec. Co., 82 NY2d 77 (1993) ...............................................................................................15 Jorge v. New York City Health & Hosps. Corp., 164 AD2d 650 (1st Dept 1991) ......................................................... 10, 11, 14, 17 Kronos v. AVX Corp., 81 NY2d 90 (1993) ................................................................................................. 6 LaBarbera v. N.Y. Eye & Ear Infirmary, 91 NY2d 207 (1998) ...........................................................................................2, 3 iii LaBello v. Albany Medical Center Hosp., 85 NY2d 701 (1995) .................................................................................. 6, 18, 19 Massie v. Crawford, 78 NY2d 516 (1991) ............................................................................................... 2 O’Toole v. Greenberg, 64 NY2d 427 (1985) ...........................................................................................8, 9 Putter v. North Shore Univ. Hosp., 7 NY3d 548 (2006) ................................................................................................. 4 Rodriguez v. Manhattan Med. Grp., P.C., 77 NY2d 217 (1990) .............................................................................................16 Schmidt v. Merchants Despatch Transp. Co., 270 NY 287 (1936) ................................................................................................. 7 Scrofini v. Sebollena, 226 AD2d 523 (2d Dept 1996) .............................................................................11 Snyder v. Town Insulation, Inc., 81 NY2d 429 (1993) ............................................................................................... 1 Vigilant Ins. Co. of Am. V. Housing Auth. Of City of El Paso, Texas, 87 NY2d 36 (1995) ................................................................................................. 1 Walton v. Strong Memorial Hosp., 25 NY3d 554 (2015) ...................................................................................... 19, 20 Weed v. Meyers, 251 AD2d 1062 (4th Dept 1998) ..........................................................................11 Statutes CPLR 203(a) ..........................................................................................................1, 5 CPLR 213(1) .............................................................................................................. 1 CPLR 214(5) .............................................................................................................. 1 CPLR 214(6) .............................................................................................................. 1 iv CPLR § 203 ................................................................................................................ 5 CPLR § 214 ..............................................................................................................13 CPLR § 214(4) ........................................................................................................... 6 CPLR § 214-a ................................................................................................... passim CPLR § 214-c ............................................................................................................. 7 INTRODUCTION Plaintiffs argue that the accrual of a “wrongful birth” action requires the birth of a live baby, and therefore, the cause of action can only accrue on the date that the plaintiffs’ infant was born alive. In making this argument, plaintiffs rely on an abundance of case law, none of which addresses CPLR § 214-a or medical malpractice actions. Indeed, plaintiffs’ entire argument rests on the interpretation of multiple statutes, with the exception of CPLR § 214-a, the statute at issue on this appeal. 1 The reason is simple: in seeking to effect a transformative change in the law governing the statute of limitations in medical malpractice actions, plaintiffs must make an effort to redirect attention from the overwhelming authority and expressions of policy that stand solidly for the position that plaintiffs’ claim is untimely. Overlooked by plaintiffs is that while other statutes may specify that some other tort claims “accrue[] when a cognizable injury is sustained” (Plaintiff’s 1 Plaintiffs rely on Britt v. Legal Aid Socy. (95 NY2d 443 [2000][a legal malpractice action arising from criminal proceeding governed by CPLR 214(6)]); Vigilant Ins. Co. of Am. V. Housing Auth. Of City of El Paso, Texas (87 NY2d 36 [1995][declaratory relief claims governed by CPLR 213(1)]); Ackerman v. Price Waterhouse (84 NY2d 535 [1994][an accounting malpractice action governed by CPLR 214(6)]); Snyder v. Town Insulation, Inc. (81 NY2d 429 [1993][a negligence claim governed by CPLR 214(5)]); and Ely-Cruikshank Co., Inc. v. Bank of Montreal (81 NY2d 399 [1993][a breach of contract action governed by CPLR 203[a]]). 2 Respondent’s Brief at p. 43), CPLR § 214-a plainly states that “an action for medical…malpractice must be commenced within two years and six months of the act, omission or failure complained of” (CPLR § 214-a [emphasis added]; see also Massie v. Crawford, 78 NY2d 516, 519 [1991][“A claim accrues on the date the alleged malpractice takes place”]). It is undisputed that the alleged “act, omission or failure complained of” in the instant case was the failure to screen for Fragile X in and around August 2008. Plaintiff continued treatment with RMA through September 2008. Thus, a straight application of CPLR § 214-a directs that the action was required to be commenced by March 2011. Because the action was not commenced until October 2011, it is untimely, and should have been dismissed. RMA acknowledges that the strict application of CPLR § 214-a can sometimes have harsh consequences. However, this Court has emphasized the impact of the codification of CPLR § 214-a, and the fact that it “constricts judicial expansiveness towards a more plaintiff friendly discovery rule” (LaBarbera v. N.Y. Eye & Ear Infirmary, 91 NY2d 207, 213 [1998][citations omitted]). Indeed, this Court in LaBarbera went on to note: 3 Yet, in closing our resolution and discussion of this case, we reiterate that this area of medical malpractice has engendered expressions of possible “unfairness” suffered by the strict adherence to definitive rules and policies. We conclude, nonetheless, 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. [citations omitted]). The First Department in this case has crafted a “discovery” accrual rule, which acts as a third exception to the accrual-upon-act-or-omission rule set forth in CPLR § 214-a. The First Department’s holding must fail as it is unrecognized by statute, precedent and public policy, and does not turn on the “discovery” of an injury, but rather represents a factual “fix” towards timeliness under the unique circumstances of this case. Finally, plaintiffs’ emphasis on the purported merit to their claim is not only irrelevant to the analysis, but considerably misleading. Plaintiffs’ gratuitous comment that “[i]t seems very unlikely that not testing for this very common disorder conforms with the standard of care” (Plaintiff’s Respondent’s Brief at p. 7), is grossly misinformed considering there are over 6,000 genetic disorders that can be passed down through generations. Defendants have not submitted “standard of care” evidence because it is irrelevant to the statute of limitations 4 issue before the Court, and because the statute of limitations has its own laudatory policy considerations: it is not, as plaintiffs wish to imply, a mere shield against meritorious actions. Moreover, the proper application of the medical malpractice statute of limitations to this case makes it manifest that plaintiffs “discovered” their claim while there was still nearly a year and a half left to run on the statute. The statute, then, worked no “injustice” (e.g., expiration in an advance of discovery) in this instance, and plaintiffs offer no explanation as to their own delay in commencing the instant action (Putter v. North Shore Univ. Hosp., 7 NY3d 548, 554 [2006] [“Since [plaintiff] had sufficient timely knowledge of the facts, was aware of the basis of a cause of action within the applicable statute of limitations and failed to bring a timely suit, further discovery is not necessary” and the action was dismissed as untimely]). As will be shown, the First Department’s Decision and Order, concluding that this “wrongful birth” medical malpractice action accrued, for purposes of the statute of limitations, on the date of the infant’s birth, cannot be permitted to stand. 5 ARGUMENT PLAINTIFFS HAVE FAILED TO CITE TO A SINGLE AUTHORITY THAT WOULD JUSTIFY THE FIRST DEPARTMENT’S JUDICIALLY CREATED, THIRD EXCEPTION TO CPLR § 214-A. CPLR § 214-a is Controlling As noted, plaintiffs rely almost exclusively on cases addressing the accrual of the statute of limitations in every type of case other than medical malpractice. The critical error in plaintiffs’ position, however, is that none of the governing statutes addressed in the cases relied upon by plaintiffs explicitly identify the accrual date. On the contrary, CPLR § 214-a explicitly sets forth when a medical malpractice claim accrues and the time within which the action must be commenced: “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of..” Indeed, CPLR § 203 governs the “[m]ethod of computing periods of limitations generally” and states that “[t]he time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed” (CPLR § 203[a][emphasis added]). Thus, since CPLR § 214-a “expressly prescribe[s]” 6 when a medical malpractice claim shall be commenced, any reliance on or analysis of other sections of the CPLR is unnecessary in determining the timeliness of this medical malpractice action. Like this Court in LaBello v. Albany Medical Center Hosp. (85 NY2d 701 [1995]), plaintiffs rely heavily on Kronos v. AVX Corp. (81 NY2d 90, 94 [1993]). Kronos involved a claim that the defendant tortiously induced the breach of plaintiff’s contract, which was governed by CPLR § 214(4), not CPLR § 214-a. Most significantly, this Court in Kronos made an explicit distinction between accrual of a general tort action and a medical malpractice action, when it stated that: “a tort cause of action cannot accrue until an injury is sustained….That, rather than the wrongful act of defendant or discovery of the injury by the plaintiff, is the relevant date for marking accrual” (81 NY2d at 94 [emphasis added). In contrast, as noted, CPLR § 214-a explicitly states that a cause of action for medical malpractice accrues not when an injury is sustained, but “within two years and six months of the act, omission or failure complained of…” (CPLR § 214-a [emphasis added]). Plaintiffs assert that the defendants have attempted to “improperly equate failure to diagnose cases with wrongful birth claims” (Plaintiffs’ Respondent’s 7 Brief at p. 43), which completely overlooks the nature of their own medical malpractice claim. Their claim sounds in medical malpractice and alleges an “omission or failure” to properly screen the donor eggs. Pursuant to both Kronos and the plain language of CPLR § 214-a, the cause of action accrued on the date of the alleged medical malpractice. In fact, it is indistinguishable from a failure to diagnose medical malpractice claim. The Timing of any Damages Sustained Is Not Relevant to the Accrual Date of this Medical Malpractice Action Contrary to plaintiffs’ interpretation, the fact that damages will not be incurred until after the infant is born is not dispositive of when the action accrues for purposes of the statute of limitations. Plaintiffs rely on Schmidt v. Merchants Despatch Transp. Co. (270 NY 287 [1936]), which involved inhalation of dust at the defendant’s facility, not a medical malpractice action. While this Court’s holding in Schmidt was superseded by the enactment of CPLR § 214-c, the language quoted by plaintiffs actually supports the defendants’ position in the case at bar. Indeed, in Schmidt, this Court, after noting that a cause of action accrues only when the wrongful act produces an injury, concluded “[t]hat does not mean that the cause of action accrues only when the injured person knows or should know that the injury has occurred. The injury 8 occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues” (270 NY at 300). Here, the “invasion of personal…rights” was the deprivation of the right not to utilize the donor eggs, or the election to go forward to create a pregnancy, which occurred at the time of treatment, prior to the infant’s birth. However, neither the type nor the amount of damages incurred is relevant to the accrual date of this medical malpractice action. A patient who is a victim of a failure to diagnose breast cancer may ultimately sustain some items of damages, be it pain and suffering, lost earnings, or medical expenses, or may sustain no damages if her cancer is diagnosed soon after the misdiagnosis. Neither the type nor extent of damages ultimately incurred, however, alter the fact that the medical malpractice cause of action accrued on the date of the alleged failure to diagnose, despite the fact that the patient was unaware whether and to what extent she was injured at the time of the misdiagnosis. Plaintiff’s reliance on a statement taken out of context from O’Toole v. Greenberg (64 NY2d 427 [1985]), is equally unavailing. In O’Toole, this Court held that a parent of a healthy child cannot allege “a cognizable legal harm” because the birth of a healthy child does not constitute a “harm.” While it is true 9 that “[l]iability for negligent conduct exists only when it proximately causes legal harm to a fully protected interest of another” (id. at 431), whether RMA is liable is not the issue. Liability is to be determined upon motion or trial. The date the statute of limitations begins to run in this medical malpractice action is determined pursuant to the plain language of CPLR § 214-a, which renders the instant action untimely. While plaintiffs’ anticipated damages are unknown at the time of the alleged medical malpractice, such is often the case in medical malpractice actions. As noted, the day after a doctor fails to diagnose breast cancer, the patient has not suffered any appreciable injury and cannot identify any damages; nevertheless, the patient’s cause of action accrued on the day of misdiagnosis, regardless of whether the patient does not learn of the misdiagnosis until several years later. Indeed, this Court addressed this specific point in Goldsmith v. Howmedica, Inc. (67 NY2d 120, 123-24 [1986]), a medical malpractice case, and stated, in relevant part, as follows: Plaintiffs also claim that to require the bringing of an action within three years of the commission of the malpractice effectively forecloses an action against the doctor before any injury has been suffered. The argument is not new. We have carefully considered it on numerous occasions. In each, we weighed the detriments of such a result against the effect of potentially open-ended claims upon the repose of defendants and society, and held that 10 the Statute of Limitations must run from the time of the act until the Legislature decrees otherwise. Precedent Confirms the Accrual Date for a “Wrongful Birth” Action Is the Date of the Alleged Medical Malpractice Plaintiffs repeatedly attempt to diminish the impact of Jorge v. New York City Health & Hosps. Corp. (164 AD2d 650 [1st Dept 1991], revd. on other grounds, 79 NY2d 905 [1992]), by emphasizing the First Department’s comment that it was unknown whether plaintiff raised an argument about the accrual date on appeal. Overlooked by plaintiffs however, is that regardless of the arguments raised by the parties, both the Appellate Division and this Court concluded that the cause of action accrued on the date of the alleged medical malpractice. The First Department explicitly stated that the action accrued “on the date of the alleged wrongful act or omission” (id. at 652). This Court obviously did not disagree, and dismissed the action as untimely, noting that the “alleged act of malpractice” constituted “the misreading of the father’s genetic test results,” which occurred more than one year and 90 days prior to the commencement of the action. Conspicuously absent from plaintiffs’ argument is any acknowledgment that if this Court had determined in Jorge that the cause of action accrued on the date of the infant’s birth, the action would have been timely. As noted, the alleged malpractice in Jorge was committed on January 16, 1985; the infant was born on 11 August 30, 1985; and the action was commenced on September 11, 1986, within one year and 90 days (the applicable statute of limitations) of the infant’s birth. 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. While plaintiffs argue that we should refrain from reading into the Jorge decision, given that the issue decided in that case was whether the action was barred by the applicable statute of limitations, one does not have to read too far to conclude that this Court agreed with the First Department’s conclusion that the action accrued on the date of the alleged medical malpractice, just like any other medical malpractice claim. Moreover, plaintiffs assert that RMA is mistaken as to the history of “wrongful birth” claims, but they simultaneously fail to effectively refute that Scrofini v. Sebollena (226 AD2d 523 [2d Dept 1996]), Weed v. Meyers (251 AD2d 1062 [4th Dept 1998]), and 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]), were all “wrongful birth” cases in which the statute of limitations was held to accrue on the date of the alleged medical malpractice. 12 The First Department’s Holding Amounts to an Improper Third, Judicially Created Exception to CPLR § 214-a Plaintiffs assert that the Appellate Division’s holding did not judicially create a third exception to CPLR § 214-a, but rather, it was simply “[t]ying the statute of limitations to the specific nature of the underlying action” (Plaintiff’s Respondent’s Brief at p. 30). The underlying action is a medical malpractice action. Analysis of the specific facts and nature of the case was not necessary. As noted, a straight application of the governing statute should have resulted in dismissal. Plaintiffs emphasize this Court’s decision in Blanco v. American Tel. & Tel Co. (90 NY2d 757 [1997]), and proclaim that the defendants’ failure to discuss the case is “startling” (Plaintiff’s Respondent’s Brief at p. 31). That case, like almost all of the cases relied upon by plaintiffs, is not a medical malpractice case, and therefore, does not address CPLR § 214-a. Thus, plaintiffs’ criticism of the defendants in their failure to raise Blanco is confounding, at best. Nevertheless, and not surprisingly, the case fails to demonstrate the propriety of the First Department’s holding in the case at bar. Blanco involved 90 separate plaintiffs suing various computer keyboard manufacturers, alleging personal injury as a result of a design defect. Each 13 plaintiff asserted a repetitive stress injury (RSI), and the governing statute of limitations was CPLR § 214. Unlike CPLR §214-a, CPLR § 214 does not explicitly set forth when the cause of action accrues, it states only that “[t]he following actions must be commenced within three years: …an action to recover for a personal injury…” Thus, when addressing when the action accrued, this Court did not cite to the statute since, unlike CPLR § 214-a, it is silent as to the accrual date, but rather, to the case law, which held that the cause of action accrued “when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court” (id. at 767, quoting Aetna Life & Cas. Co. v. Nelson, 67 NY2d 169, 175 [1986]). Moreover, the Blanco Court acknowledged the deference it gave to the Legislature to recast the accrual methodology, but noted the distinction in Blanco was the “new categories of tort claims and injuries,” which required a “careful and balanced analysis” of the interplay with the policy considerations underlying our statute of limitations jurisprudence. Here, not only does the plain language of the applicable statute explicitly indicate that the claim accrued on the date of the alleged malpractice, but the claim is not a new category of tort claim to the extent that the claim has existed since 1978 (Becker v. Schwartz, 46 NY2d 401 [1978]). Moreover, since 1991, the accrual date for the purposes of the statute of limitations 14 had been the date of the alleged malpractice (Jorge v. New York City Health & Hosps. Corp., 164 AD2d 650 [1st Dept 1991], revd. on other grounds, 79 NY2d 905 [1992]). Like in other cases involving an analysis of an accrual date, this Court in Blanco emphasized “the injured person’s interest in having a reasonable opportunity to assert a claim” (Blanco, supra, 90 NY2d at 774). Here, the very nature of the “wrongful birth” claim necessarily provides a plaintiff with a reasonable amount of time to assert a claim to the extent that the alleged medical malpractice in connection with the pregnancy will have necessarily occurred close in time to the discovery of an injury. In fact, here plaintiffs learned that their son had Fragile X nearly a year prior to the expiration of the statute of limitations. Plaintiffs further argue that this Court’s decision in Flanagan v. Mt. Eden General Hosp. (24 NY2d 427, 431 [1969]), signifies this Court’s willingness to “apply the statute of limitations fairly in appropriate situations to insure that deserving plaintiffs are not deprived of the ability to bring an action that would, due to circumstances beyond their control, otherwise be barred by the improper application of a statute of limitations” (Plaintiffs’ Respondents’ Brief at p. 32). 15 While plaintiffs certainly make a sympathetic argument, it is not germane to the circumstances of this case. Unlike the plaintiff in Flanagan, the instant plaintiffs were never “deprived of the ability to bring an action…due to circumstances beyond their control” (id.). As noted, the plaintiffs were informed that their son had Fragile X mutation in May of 2010. They had almost a year, until March 26, 2011, to institute an action, but inexplicably waited until October 2011 to commence the action. Thus, the circumstances of this case are far different than in Flanagan, where surgical clamps were inserted into plaintiff’s body in July 1958, and not discovered until eight years later, in June 1966, approximately five years after the expiration of the statute of limitations. Here, the plaintiffs discovered their son’s condition prior to the expiration of the statute of limitations (see Jensen v. Gen. Elec. Co., 82 NY2d 77, 89 [1993][“It should not be overlooked that this conclusion will encourage timely action with ample time allowances by injured parties with knowledge of their injuries. This inducement is fair to everyone and benefits everyone proportionately. It discourages people from sitting on their rights and inhibiting early intervention and remediation, factors neutralizing or displacing the concern about some occasional anticipatory estimation of damages…”]). 16 Also significant is that in Flanagan, contrary to plaintiffs’ interpretation, this Court was not interpreting a statute, but rather, was interpreting case law (24 NY2d at 434): Our decision does not encroach upon any legislative prerogatives. The Legislature did not provide that the Statute of Limitations should run from the time of the medical malpractice. This court did. Therefore, a determination that the time of accrual is the time of discovery is no more judicial legislation than was the original determination. It was after Flanagan, in 1975, that the Legislature codified both the foreign object exception, and the accrual date of a medical malpractice action. Thus, given the Legislative action, and the plain language of CPLR § 214-a, no legitimate basis exists for the First Department’s decision in the instant case. Further, Flanagan noted the significant distinction between alleged negligent medical treatment and cases involving foreign objects, such that the discovery rule for foreign objects, which can remain concealed for several years, was appropriate (see also Rodriguez v. Manhattan Med. Grp., P.C., 77 NY2d 217, 224 [1990][“In the final analysis, this case is no different from any other medical malpractice action…”]). 17 Plaintiffs criticize RMA for its purported citation to “cases having absolutely nothing to do with wrongful birth causes of action” (Plaintiffs’ Respondents’ Brief at p. 40). Not only does RMA cite to the chronology of “wrongful birth” actions, in which the statute of limitations was determined to accrue on the date of the alleged malpractice (RMA Appellant’s Brief at p. 31-43), but RMA appropriately relies on other medical malpractice cases, since the analysis is of CPLR § 214-a, which is entitled “Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions.” Plaintiffs also continue to rely on LaBello v. Albany Med. Ctr. Hosp. (81 NY2d 399 [1993]), overlooking that the holding concerning the infant plaintiff’s standing is entirely irrelevant here. The plaintiff in LaBello was the infant, who was in utero when the alleged malpractice occurred, and, thus, lacked standing at that time to commence any legal action. In contrast, the plaintiffs in the case at bar were adults, who legally existed and had standing when the alleged medical malpractice occurred. Indeed, this Court explicitly particularized the issue in LaBello as “whether the infant’s cause of action accrued when the alleged negligent act or omission occurred, or, rather, on the date he was born” (id. at 702 [emphasis added]). Thus, the reasoning in LaBello that the infant “plaintiff could not have enforced his claim prior to his birth, because neither he nor anyone on his 18 behalf had any cognizable status in a court of law to sue” (85 NY2d at 707), is wholly inapplicable here. Moreover, this Court in LaBello made clear that its ruling did not create a new exception to the accrual-upon-act-or-omission rule set forth in CPLR § 214-a. Rather, this Court “[took] the statute on its own terms and appl[ied] it to this unenvisaged circumstance” (85 NY2d at 706). It is submitted that the circumstances were deemed unenvisaged because the plaintiff was in utero at the time of the alleged malpractice, without the jural capacity to sue. Thus, the Court was compelled to make a “policy determination” based, in part, on the well-settled law that “an infant plaintiff has no right of action unless born alive” (id. at 704). Here, however, the circumstances call for no such accommodation. Rather, the plaintiff parents are like any other putative medical malpractice plaintiffs: they physically exist and have the capacity to sue at the time of the alleged medical malpractice. In LaBello, this Court was compelled to undertake “statutory interpretation and harmonization” because the infant plaintiff was in utero at the time of the alleged negligent act, and the relevant statute, CPLR § 214-a, “expresses and presumes physical existence and juridical capacity to sue” (id. at 704, 706). Given 19 the instant plaintiffs’ physical existence and capacity to sue at the time of the alleged act of malpractice, unlike in LaBello and contrary to plaintiffs’ assertion, it is unnecessary for this Court in this case “to fill the gap by traditional interpretation and common-law development and application” (id. at 706). Rather, a straight application of the plain language of CPLR § 214-a dictates that the accrual date for this medical malpractice action was the date of the plaintiff’s final treatment; the action was commenced more than two years and six months after the last date of treatment, rendering the action untimely. Plaintiffs’ citation to Walton v. Strong Memorial Hosp. (25 NY3d 554 [2015]), is particularly peculiar since, in the case at bar, the First Department has “expand[ed] a given statute of limitations ‘beyond its legislatively-limited scope,’” which this Court explicitly cautioned against in Walton (Plaintiffs’ Respondents’ Brief at p. 44, quoting Walton, 25 NY3d at 573). While essentially ignored by plaintiffs, only two exceptions to the medical malpractice statute of limitations exist: (1) continuous treatment doctrine and (2) “foreign object.” By holding that a “wrongful birth” medical malpractice claim accrues not on the date of the alleged medical malpractice, but on the date of the infant’s birth, the First Department has, despite plaintiffs’ bald assertions to the contrary, improperly crafted a third exception to the accrual-upon-act-or-omission rule. 20 Most significantly, in Walton, upon detailing and thoroughly analyzing the “foreign object” exception and the history leading up to and subsequent to the enactment of CPLR § 214-a, this Court noted that although CPLR § 214-a continued the judicially created “continuous treatment” doctrine, it, nevertheless “sought to prevent manipulation of the date when the statute of limitations began to run,” by limiting the circumstances that constituted “continuous treatment” (25 NY3d at 574, n. 3 [emphasis added]). In particular, it explicitly set forth that “continuous treatment” shall not include examinations undertaken by the patient for the sole purpose of ascertaining the patient’s condition. In sum, 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. CONCLUSION Based upon all of the foregoing, this Court should conclude that the Appellate Division's Decision and Order of December 17, 2015, concluding that a "wrongful birth" action accrues, for purposes of the statute of limitations, on the date of the infant's birth, 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 February 16, 2017 Of Counsel CARYN L. LILLING KATHERINE HERR SOLOMON Respectfully submitted, MAUR LILLINGNAPARTYLLP By:~'--+-~--=-R._. -------l~-- 1 00 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 21 WORD COUNT CERTIFICATION Pursuant to Rule 500.11 (m), Caryn L. Lilling, as appellate counsel for Appellants Reproductive Medicine Associates of New York, LLP and Reproductive Medicine Associates-International, 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 4,494.