Fertility Clinic Sued for Inadequate Genetic Testing of Egg Donor; Statute of Limitations Issue


Plaintiffs husband and wife are suing a New York fertility clinic over a donated egg that contained a genetic defect. (A fertility clinic assists couples and individuals who experience difficulty in becoming pregnant because of medical or other reasons.) The couple utilized the services of the clinic, became pregnant with two donated eggs fertilized in vitro, and gave birth to male twins in 2009. One child suffers from Fragile X syndrome, a genetic condition that can cause intellectual and developmental disabilities plus hyperactive behavior, autism spectrum disorders, anxiety, and seizures. The condition was traced to the donated eggs based on post-birth testing of the egg donor.

Plaintiffs argue that the clinic, Reproductive Medicine Associates (RMA), negligently failed to test the donor for Fragile X syndrome despite informing plaintiffs that RMA screens donor candidates for genetic diseases and other conditions.  Plaintiffs seek damages (compensation) for the added expenses of raising a disabled child. The New York State Court of Appeals, that state’s highest court, heard argument on the case in mid-November. A decision is expected sometime in 2018.

The clinic is arguing that the statute of limitations has passed, and thus the case is untimely and should be dismissed. “Statute of limitations” refers to a time period within which a plaintiff can begin a lawsuit, and beyond which a plaintiff cannot sue, no matter how winnable plaintiff’s case may be. The concept is this – a plaintiff with a lawsuit should sue in due time. A would-be defendant should not have to worry indefinitely about the possibility of a lawsuit. The duration of the statute of limitations varies depending on the type of case involved. Generally, the time periods range from one year to five years.

The cause of action (basis on which plaintiff is suing) is malpractice, meaning negligence in the practice of a profession. The statute of limitations for malpractice in New York is two and a half years after an alleged act of malpractice, or in the alternative, from the end of a continuous treatment during which the negligent act or omission occurred. The two embryos were implanted in the plaintiff mother on January 21, 2009. Her last appointmet at RMA was on March 10, 2009. The twins were born on September 25, 2009. The lawsuit was begun in December, 2011.   Thus, if the statute of limitations began to run on the birth of their sons, the case is timely. If the time period commences upon defendants’ last treatment of the plaintiff mother, it is untimely.

The intermediate appellate court ruled that the statute of limitations begins to run with the birth of the impaired child, rendering the malpractice claim timely. On appeal, the clinic argues that ruling is contrary to the statute. The clinic asserts the time period began to run when the couple completed fertility treatments and became pregnant. Per this position, the case should be dismissed as having been started too late.

The plaintiffs’ lawyer argues the parents could not sue before the condition became apparent. “It makes no sense to expect the parents to file a lawsuit before they even knew about the condition.” In response, the clinic asserts that any changes to the law should be made by the legislature, not the courts. Argued the clinic’s lawyer, the statute of limitations must run from the time of the [alleged negligent] act, unless and until the Legislature decrees otherwise.”

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1)    What steps going forward should the clinic take to ensure this problem does not happen again?

2)    Why does the clinic argue that the legislature and not the courts should be the institution to change the statute of limitations if a change is indicated?