The New York Court of Appeals, New York’s highest appellate court, held in its opinion filed on December 14, 2017 that the statute of limitations for wrongful birth claims in New York begins to run on the date of birth, and not on the date of the alleged medical negligence.
The Court of Appeals had decided a case in 1978 that permitted that plaintiffs-parents to recover the extraordinary expenses incurred to care for their disabled infant who, but for a physician’s negligent failure to detect or advise on the risks of impairment, would not have been born. In the present case, the Court of Appeals had to decide whether the statute of limitations for claims involving such extraordinary expenses runs from the date of the alleged negligence or the date of birth.
In the two cases the Court of Appeals was deciding in its December 14, 2017 opinion, the IVF plaintiffs alleged that, by failing to take steps to detect that the egg donor was a carrier for Fragile X and therefore that the embryo may have had the Fragile X trait, the medical malpractice defendants left the parents in an uninformed state as to whether to avert pregnancy or birth — and the associated costs resulting from birth. The plaintiffs contended that these negligent acts or omissions caused them to consent to the IVF procedure and go forward with pregnancy, resulting in the parents incurring extraordinary expenses to care for and treat a child with a disability.
The Court of Appeals stated that a wrongful birth claim in New York is restricted to those instances in which the plaintiffs can demonstrate that but for the defendants’ breach of their duty to advise the plaintiffs, the plaintiffs would not have been required to assume these extraordinary financial obligations. In other words, the parents bringing a wrongful birth claim may seek to recover only the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority. No recovery is allowed for any consequent psychic or emotional damages nor may parents recover the ordinary costs of raising a healthy child born by reason of so-called wrongful conception. The extraordinary expenses claim belongs to the parents alone — the child cannot bring a claim for wrongful life because, as a matter of public policy in New York, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all.
The Court of Appeals stated that a claim accrues when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief. As a general rule, a legal right to relief in a tort action arises when an injury occurs. To determine when a claim accrues, the Court of Appeals must balance the competing policy considerations of putting to rest stale claims with ensuring fairness to the claimant who shall not unreasonably be deprived of the right to assert a claim.
The Court of Appeals stated that given the nature of the plaintiffs’ medical malpractice allegations in the present two cases, it follows that until the alleged misconduct results in the birth of a child, there can be no extraordinary expenses claim. Moreover, the extraordinary expenses incurred by the parents to care for and treat the child arise as a consequence of the birth, not just the conception. Prior to a live birth, it is impossible to ascertain whether parents will bear any extraordinary expenses.
The Court of Appeals held that due to these unique circumstances, the cause of action for wrongful birth in New York accrues upon the birth of an infant with a disability: this date appropriately balances the competing statute of limitations policy concerns — it gives parents a reasonable opportunity to bring suit while at the same time limiting claims in a manner that provides certainty and predictability to medical professionals engaged in fertility treatment and prenatal care.
Source B.F. v. Reproductive Medicine Associates of New York; Marie Dennehy v. Alan B. Copperman, M.D., No. 126-127.
If your baby was born with severe disabilities that may have been discovered if appropriate testing was timely done during your pregnancy, you may have the basis for a medical malpractice wrongful birth claim. Obtaining the legal advice from a local medical malpractice attorney in your U.S. state may help you decide if you may and should proceed with a medical malpractice wrongful birth case.
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