LaBello v. Albany Medical Center Hospital

OPINION OF THE COURT White, J. In her complaint in this medical malpractice action stemming from defendants’ prenatal treatment of her, plaintiff alleges that, between November 9, 1982 and November 11, 1982, defendants failed to correctly and properly assess the significance of an ultrasound report and an amniocentesis test and permitted her to proceed beyond full term, thereby causing the infant to be born on November 30, 1982 with severe and permanent injuries. Because plaintiff did not commence this action until November 23, 1992, defendants included two affirmative defenses relating to the Statute of Limitations in their answer. Plaintiff’s motion to strike these defenses was granted by Supreme Court, giving rise to this appeal by defendants. The Statute of Limitations for a medical malpractice action is 2 Vi years, which may be tolled during a plaintiff’s infancy for a maximum of 10 years from the accrual of the claim (see, CPLR 208, 214-a). As a general rule, a medical malpractice action accrues at the time of the commission of the alleged malpractice subject to the continuous treatment doctrine and foreign object exception (see, Goldsmith v Howmedica, Inc., 67 NY2d 120, 122). Plaintiff would have us create another exception for prenatal injury cases by establishing the date of birth as the accrual date. The rationale for her argument is that a cause of action for prenatal injuries cannot be pursued unless the child is born alive (see, Scott v Capital Area Community Health Plan, 191 AD2d 772, lv denied 82 NY2d 656). Plaintiff cites no authority supporting her position. In fact, in an analogous medical malpractice case, Jorge v New York [301] City Health & Hosps. Corp. (164 AD2d 650, revd on other grounds 79 NY2d 905), arising out of the defendant’s misreading of genetic test results of the child’s father early in the mother’s pregnancy, the First Department noted that Supreme Court was correct in its determination that the cause of action accrued on the date the test result was misread. Likewise, in another prenatal injury case, the cause of action was deemed to have accrued on the date the plaintiff’s physician negligently attributed her illness to food poisoning, rather than to rubella, the First Department holding that a medical malpractice claim accrues on the date of the original act, omission or complained-of failure (see, Branigan v DeBrovner, 197 AD2d 270). We also conclude that plaintiff's cause of action accrued when defendants allegedly misread the test results on November 9, 1982 and November 11, 1982. We note that our conclusion is in accord with the legislative intent expressed in CPLR 214-a recognizing the continuous treatment doctrine and the foreign object rule as the only exceptions to the general rule regarding the accrual of a medical malpractice cause of action, and courts have been reluctant to broaden the narrow confines of the exceptions contained in CPLR 214-a (see, Rockefeller v Moront, 81 NY2d 560). Moreover, there are no public policy reasons for creating an exception for prenatal injury cases since the infancy toll provision of CPLR 208 provides an injured infant with an ample period of time within which to seek redress. Even if the Statute of Limitations is tolled under the continuous treatment doctrine to November 30, 1982, the date of the infant’s birth, plaintiff would not benefit since the 10-year infancy toll runs from the date the act of malpractice occurred rather than from the end of the period of continuous treatment (see, Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 634). Accordingly, we find that Supreme Court should have denied plaintiff’s motion since this action was commenced more than 10 years after the accrual of the cause of action. In our view the dissent’s reliance on Kronos, Inc. v AVX Corp. (81 NY2d 90) is misplaced because there is nothing therein to indicate that the general proposition that a tort cause of action does not accrue until an injury is sustained or when all the elements of the tort can be truthfully alleged in the complaint overrides the recently reiterated rule that a malpractice cause of action accrues at the time of the commission of the alleged act of malpractice (see, Rockefeller v [302] Moront, supra). Moreover, the dissent overlooks the distinction between a cause of action and a right of action, the latter being the legal right to maintain an action based upon a given state of facts or transaction (Black’s Law Dictionary 1190 [5th ed 1979]). The fact that an action for prenatal injuries cannot be pursued unless the infant is born alive is not a substantive element of a malpractice cause of action (see, 5 Carmody-Wait 2d, NY Prac § 29:874, at 391), but rather is a limitation upon the infant’s right to maintain such action. Thus, it has no relevancy to the accrual of plaintiffs cause of action in this case. For these reasons, Supreme Court should have denied plaintiffs motion seeking to dismiss defendants’ affirmative defenses asserting the Statute of Limitations.