Win for parents

Drama in ‘wrongful births’

ALBANY — New York’s top court on Thursday ruled that the legal clock for so-called wrongful-birth lawsuits begins ticking the moment a child is born.

In a pair of cases brought by the parents of children born with a rare chromosomal abnormality known as “fragile X,” the state Court of Appeals ruled the statute of limitations should be calculated from the birth of the children and not the time of in-vitro fertilization.

“The circumstances here preclude the parents from bringing the lawsuit until the child is born and thus the statute of limitations must run from the date of birth,” Chief Judge Janet DiFiore wrote for the majority in the 5-1 decision.

The decision by the Court of Appeals was a victory for two couples who sued Manhattan Dr. Alan Copperman and Reproductive Medicine Associates of New York for malpractice because they did not test egg donors for the “fragile X” abnormality, which can produce intellectual disability and other injuries.

Months after the children were born, they were discovered to have the abnormality.

After the parents sued, the defendants claimed the parents waited too long to file their lawsuits, arguing the legal clock started ticking at the moment the in-vitro process was completed.

State law requires that a medical malpractice claim be filed within 2½ years “of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.”

The couples claimed the statute of limitations applied to time of birth and that their lawsuits were still valid. The top court’s decision allows their case to proceed.

Attorneys for the couples, Copperman and RMA did not respond to requests for comment.

Thursday’s decision built on a 1978 Court of Appeals ruling that allowed parents of impaired infants to recover expenses for the care of their children on the theory that had they been made aware of the impairment they would have terminated the pregnancy. Such cases are known as wrongful birth cases.

In a dissenting opinion, Judge Michael Garcia, the only Republican member of the 7-member court, said “the governing statute explicitly provides that plaintiffs’ limitations period runs from the date of the alleged malpractice, not the date of the child’s birth.”