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.
Background
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.