A New York Injury Lawyer said between 9 and 11 of November 1982, defendants allegedly failed to correctly and properly assess the significance of an ultrasound report and an amniocentesis test and permitted plaintiff to proceed beyond full term of her pregnancy, thereby causing the plaintiff’s child to be born on 30 November 1982 with severe and permanent injuries, birth injuries.
On 23 November 1992, plaintiff files a complaint for medical malpracticeaction stemming from defendants’ prenatal treatment of her.
Defendants included two affirmative defenses relating to the Statute of Limitations in their answer because plaintiff did not commence the instant action until 23 November 1992.
Plaintiff moves to strike the aforesaid defenses.
On 9 March 1993, the Supreme Court of Albany County grants the motion.
Hence, defendants file an appeal.
Does the Statute of Limitations apply?
Under the law, the Statute of Limitations for a medical malpractice action is 2 1/2 years, which may be tolled during a plaintiff’s infancy for a maximum of 10 years from the accrual of the claim. A Manhattan Personal Injury Lawyer said 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.
Here, plaintiff would have the court 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.
Plaintiff cites no authority supporting her position. In fact, in an analogous medical malpractice case 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. Thus, in the instant case, the court also concludes that plaintiff’s cause of action accrued when defendants allegedly misread the test results on 9 and 11 of November 1982.
The court’s conclusion is in accord with the legislative intent expressed in the Civil Practice Law and Rules 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. Courts have been reluctant to broaden the narrow confines of the exceptions.
Moreover, there are no public policy reasons for creating an exception for prenatal injury cases since the infancy toll provision provides an injured infant with an ample period of time within which to seek redress.
Further, even if the Statute of Limitations is tolled under the continuous treatment doctrine to 30 November 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.
Accordingly, a Nassau County Personal Injury Lawyer said the court finds that the Supreme Court should have denied plaintiff’s motion since the action was commenced more than 10 years after the accrual of the cause of action.
The dissent’s reliance on another case is misplaced. 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. There is a 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. 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; rather, it is a limitation upon the infant’s right to maintain such action. Thus, it has no relevancy to the accrual of plaintiff’s cause of action.
For the foregoing reasons, the Supreme Court should have denied plaintiff’s motion seeking to dismiss defendants’ affirmative defenses asserting the Statute of Limitations.
Henceforth, the statute of limitations apply; the order is modified, on the law; the motion dismissing the third and fourth affirmative defenses in the answer is reversed; the motion denied to that extent; and, as so modified, affirmed.
If you have suffered injuries by reason of a medical malpractice, it is advisable that you act on your right as soon as practicable to avoid having your case barred by the Statute of Limitations. Your right of action to file a case before courts has its limits. You cannot file a case only when you feel like filing because if you do, you may lose your chance of being compensated for the injuries you have suffered. For a free consultation, you may contact Stephen Bilkis & Associates and talk to our NY Medical Malpractice Lawyers or our NY Birth Injury Lawyers.