Two couples are suing a New York fertility doctor and his clinic after giving birth to children with a genetic abnormality later traced back to donated eggs. The two children, both born in 2009, have Fragile X syndrome, a genetic condition that can lead to intellectual and developmental impairments. The parents, identified by initials and last names in legal papers, argue the doctor and the clinic failed to test the women who donated the eggs to determine whether they were carriers for Fragile X.
They’re seeking damages for the added expenses of raising a disabled child. The New York Court of Appeals heard oral arguments in the case on Wednesday. A decision is expected next year. The outcome is likely to hinge on the statute of limitations in the state’s medical malpractice law, which gives plaintiffs two-and-a-half years to sue following an alleged act of malpractice — or a patient’s last treatment by the physician. Attorneys for the Reproductive Medicine Associates clinic and physician Alan Cooperman argue the suit was filed too late, because the state of limitations began counting down when the women ended fertility treatment after becoming pregnant — and not when the children were born or when the genetic abnormality was diagnosed. The parents filed the lawsuits two years after the children were born. In court on Wednesday, their attorneys argued the parents couldn’t sue before the condition became apparent in the children. Attorney James LiCalzi said it makes no sense to expect the parents to file a lawsuit before they even knew about the abnormality. “A claim didn’t exist here until this child was born alive,” he said. But attorneys for the clinic said it’s outside the power of the court to extend the statute of limitations in this case. Attorney Caryn Lilling said that it should be up to elected lawmakers — and not the court — to change the rules. “The statute of limitations must run from the time of the act until the Legislature decrees otherwise,” she said. According to court papers, the donors of the eggs were tested after the children were born. Both were found to be carriers of the Fragile X mutation.