The Court of Appeals has addressed issues pertaining to the statute of limitations in medical malpractice actions in two recent decisions—one involving the time at which a wrongful birth cause of action accrues, and the other involving the continuous treatment doctrine. Those decisions are the subject of ths month’s column.
By way of background, in Becker v. Schwartz, 46 N.Y.2d 401 (1978), the court recognized a cause of action for wrongful birth by which parents may recover for the extraordinary care expenses they incur on behalf of a disabled infant whose birth was attributable to a defendant’s negligent failure to detect or advise on the risk of birth defects. In Alquijay v. St. Luke’s-Roosevelt Hospital Center, 63 N.Y.2d 978 (1984), the court held that an infant impaired by a genetic disorder could not bring an action for the costs she will incur for her own special care because the cause of action belongs only to the parents, and since the statute of limitations had expired as to them there could be no recovery at all in that case. In Bani-Esraili v. Lerman, 69 N.Y.2d 807 (1987), the court further truncated the cause of action, holding that it is limited to extraordinary expenses that the parents may incur until the child turns 21 years of age, after which parents have no legal obligation to support the child. Finally, in Foote v. Albany Medical Center Hospital, 16 N.Y.3d 211 (2011), the court held that the parents’ cause of action for such expenses may proceed despite the availability of services that may be provided for the child via government programs, see Moore and Gaier, Recovery for “Wrongful Birth,” Medical Malpractice, NYLJ, Aug. 2, 2011, p. 3.
In B.F. v. Reproductive Medicine Associates of New York, 30 N.Y.3d 608 (2017), the court resolved appeals in two different but related lawsuits brought by parents who conceived children via in vitro fertilization that was performed by the same defendants using donor eggs from the same donor. In both cases, the defendants represented to the prospective parents that they had screened the donor for all known genetic conditions for which testing was available. One couple had a single infant and the other had twins. The defendants subsequently learned that the donor whose eggs were implanted was later determined to have the genetic trait for Fragile X syndrome, a condition which causes developmental delays and cognitive impairment.
Confirmatory genetic testing on the children was positive for the child born to the couple that had the single birth, and for one of the twins born to the other couple. The parents of each brought actions alleging that the defendants were negligent in failing to timely screen for the Fragile X trait or to notify the parents that they did not screen for it. The defendants in both cases moved to dismiss on the ground that the two-and-a-half-year statute of limitations applicable to the parents’ causes of action had expired. The specific issue before the court was whether the statute of limitations commenced to run on the dates the embryos were implanted (as the defendants argued) or the dates on which the children were born (as the plaintiffs asserted). The Supreme Court and the Appellate Division in each case agreed with the plaintiffs that the statute of limitations began to run at the time of the children’s births, such that the causes of action for the plaintiffs in both cases were timely commenced. The Court of Appeals affirmed in a 5-1 decision. Writing for the majority, Chief Judge Janet DiFiore commenced the analysis by citing the court’s prior determinations 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,’” and that “as a general rule, a ‘legal right to relief’ in a tort action arises when an injury occurs.” Since the gravamen of the wrongful birth action is that due to the defendants’ negligence, the parents are required to incur extraordinary care expenses for the child as a consequence of the birth, the majority reasoned, “the cause of action accrues upon the birth of an infant with a disability.” This demarcation, the majority found, strikes an appropriate balance that “gives the 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.”
The majority found that this analysis was not inconsistent with the requirement of CPLR 214-a that a medical malpractice action must be commenced within two and a half years of the act, omission or failure complained of. While acknowledging that in codifying the common law rule in that statute the Legislature sought to foreclose judicial expansion toward a broad discovery rule in malpractice actions, the majority found that “nothing in the legislative history suggests an intent to constrict judicial authority to otherwise define when a cause of action accrues, or to mandate that the limitations period should commence prior to accrual.” In finding that wrongful birth actions do not accrue, and their limitations period should not commence to run, before birth, the majority observed that “this is not the typical medical malpractice case.” Since the cause of action did not exist in New York when CPLR 214-a was adopted, the majority reasoned, this situation could not have been contemplated by the Legislature.
The majority also found support in its prior holding in LaBello v. Albany Medical Center Hospital, 85 N.Y.2d 70 (1995), which held that the statute of limitations for a child’s medical malpractice action for injuries resulting from faulty prenatal care starts to run not at the time of the malpractice, but upon the birth of the child. While recognizing the distinctions between the two circumstances, the majority found that both warranted “similar interpretive measures” to preclude a scenario in which the statute of limitations could begin to run before the action could even be brought.
Judge Michael Garcia wrote a lone dissent, in which he found the majority’s assumption that the cause of action requires a live birth to be both “novel” and “problematic.” With regard to the latter, the dissent observed that parents may discover a disability prior to birth and begin incurring expenses by purchasing equipment in preparation for the baby’s arrival. Bearing this in mind, the dissent found the majority’s reasoning problematic because it may “restrict the scope of recoverable damages” in these cases. With regard to the former, the dissent found that the Legislature, in CPLR 214-a, displaced judicial authority to implement a common law rule of accrual, and that the court had thus far refrained from expanding beyond the two accrual exceptions built into the statute—foreign objects and continuous treatment. The dissent distinguished LaBello on the ground an unborn child has no “juridical capacity to sue,” such that birth is a necessary prerequisite to an action on behalf of a child. The parents have no such legal impediment to bringing suit before the delivery. Thus, the dissent concluded that the majority’s “well-intentioned effort contravenes the plain language of CPLR 214-a” by implementing “an arbitrary” date of birth accrual.
Judge Garcia would return to this statute two months later when writing for the majority in another split decision, this one finding issues of fact as to whether there was continuous treatment. The plaintiff in Lohnas v. Luzi, 30 N.Y.3d 752 (2018), was treated by the defendant for chronic shoulder problems beginning in 1998, including a 1999 surgery and five postoperative visits over the next year. Nineteen months after the last post-op visit (which had been a year after the surgery), the plaintiff returned to the defendant complaining of increased pain in her shoulder. The defendant recommended injections and performed a second surgery in January 2002. She returned for a post-op visit in April of 2002, and next saw the defendant in September 2003, because her shoulder injury was aggravated. The plaintiff then did not see the defendant again for more than 30 months, until April 2006 when she returned complaining of continued pain. The plaintiff testified that she “had gotten discouraged” with the defendant, but eventually returned to him because he “was all she had.” At this point, the defendant referred her to his partner for a third surgery because he was no longer performing shoulder surgery. She consulted with the partner but began seeing a new orthopedic surgeon in July 2006.
The plaintiff brought suit in September 2008, alleging that the defendant negligently performed the original 1999 surgery and subsequently failed to diagnose the flaws. The defendant moved for summary judgment dismissing all claims from before March 2006. The Supreme Court denied the motion, finding issues of fact as to continuous treatment, and the Appellate Division affirmed. The Court of Appeals, in a four to three decision, likewise affirmed. In finding that there were issues of fact as to continuous treatment that precluded summary judgment, the majority took the following view of the evidence:
“The plaintiff saw the defendant over the course of four years, underwent two surgeries at his hand, and saw no other doctor for her shoulder during this time. She returned to him after the gap of more than 30 months, discussed yet a third surgery with him, and accepted his referral to his partner only because the defendant was no longer performing such surgeries.”
The plaintiff’s testimony regarding feeling discouraged with the defendant’s treatment does not demonstrate as a matter of law that she never intended to return to his care; in fact, her testimony reveals that she considered the defendant her only doctor during this time. Nor does the fact that the defendant repeatedly told the plaintiff she should return “as needed” foreclose a finding that the parties anticipated further treatment. Notably, plaintiff’s injury was a chronic, long-term condition which both the plaintiff and the defendant understood to require continued care.
In this context, the majority, citing Borgia v. City of New York, 12 N.Y.2d 151 (1962), concluded that “each of the plaintiff’s visits to the defendant over the course of seven years were ‘for the same or related illnesses or injuries, continuing after the alleged acts of malpractice.’” The majority also quoted McDermott v. Torre, 56 N.Y.2d 399 (1982), for the proposition that one of the policies underlying continuous treatment is “the recognition that the doctor not only is in a position to identify and correct the malpractice, but is best placed to do so.” However, the majority’s decision, which properly viewed the evidence in the light most favorable to the plaintiff, is as much founded on the standards applicable to summary judgment as it is on the tenets of the continuous treatment doctrine.
Aside from the holding that the “return as needed instruction did not foreclose continuous treatment, there was another aspect of the majority’s decision that directly addressed the availability of the doctrine, and that relates to the 30-month gap in treatment. Citing Massie v. Crawford, 78 NY2d 516 (1991), the majority reiterated its previous observation that “a gap in treatment longer than the statute of limitations ‘is not per se dispositive of the defendant’s claim that the statute has run,’” and further held that “to the extent that lower courts have held to the contrary …, those cases should not be followed.” This equally confirms the correctness of those Appellate Division decisions that have found continuous treatment despite such gaps. See Devadas v. Niksarli, 120 A.D.3d 1000 (1st Dept. 2014).2 The dissent, authored by Judge Rowan Wilson, focused more on the policies underlying the continuous treatment doctrine, and asserted that the majority “has confused ‘continuous treatment’ with a chronic condition …” After discussing the adoption of the doctrine in Borgia, and what it characterized as its subsequent “grudging” codification in CPLR 214-a, the dissent focused on the policy of not requiring a patient to interrupt corrective treatment by the offending physician in order to bring a timely lawsuit, and the decisions holding that continuous treatment does not apply absent continuing efforts to treat a condition. The dissent emphasized that even though the plaintiff professed to be in terrible pain after September 2003, she did not see the defendant again until April 2006. While not advocating a rule that gaps in excess of the statutory period failed per se, it found that viewed most favorably to the plaintiff, with the defendant’s instruction to “return as needed,” the return visit after a more than 30 month gap in treatment cannot be regarded as timely.
Notably, the dissent seemed troubled by the “incongruous” result that this plaintiff’s action may be timely, while the “plaintiffs who are injured by malpractice that cannot be discovered until the statute of limitations has run” are barred. While some solace may be taken from the recent amendments to CPLR 214-a adding a discovery rule in cases involving failures to diagnose cancer and malignant tumors, see Moore and Gaier, “A Discovery Rule for Cancer Cases,” Medical Malpractice, NYLJ, Feb. 6, 2018, we second the sentiment intimated by the dissent concerning in the injustice of permitting anyone’s statute to expire before they could know they have been wronged.
The positions articulated by the majorities and the dissents in both B.F. and Lohnas illustrate the thorniness of issues affecting statutes of limitations that may deny recovery no matter how valid the underlying merits of the case. The goal should be, as much as possible, to avoid unfairness to both the plaintiff seeking compensation and the defendant who must defend the claim.
Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.