In a case of first impression, the New York Supreme Court, Appellate Division, First Judicial Department (“New York appellate court”) stated in its reported opinion entered on April 18, 2024: “The underlying parts of the IVF process implicate both medical malpractice and ordinary negligence. Retrieving the eggs from the ovaries, fertilizing the egg with a donated sperm, grading the quality of the embryos, and preparing them for cryopreservation are clear acts of medical science or art requiring a specialized skillset appropriately characterized as medical in nature. However, all of these acts concluded on August 11, 2008, when the embryos were cryopreserved, rendering the causes of action based on such treatment untimely (see CPLR 214-a). Further, because those processes firmly ended on that date, the continuous treatment doctrine does not toll the statute of limitations (see Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]). As plaintiffs’ causes of action for medical malpractice based upon these allegations are untimely, we need not address their merits.
On the other hand, once cryopreservation has commenced, the mere maintenance of the storage tanks containing the frozen embryos does not comprise acts of “medical science or art requiring special skills not ordinarily possessed by lay persons” (Miller, 95 AD2d at 978). Where an act is more “‘administrative’ than medical in nature,” conduct is “measured by ordinary negligence standards” (id.). While the cryopreservation storage tanks at CFHR were checked at least twice weekly for leaks and the levels of liquid nitrogen, such acts are more administrative than medical in nature. Thus, once the embryos entered cryopreservation, CFHR and its employees merely owed a duty to plaintiffs to maintain the successful operability of the storage tanks.
The alleged failure in “fulfilling [this] different duty” “sounds in negligence,” rather than medical malpractice … the use of embryologists to conduct routine examinations of the storage tanks does not transform an otherwise administrative act into one requiring medical judgment.”
The New York Appellate Court held: “Plaintiffs’ expert, on the other hand, thoroughly countered defendants’ experts’ opinions, concluding that some of the embryos were most likely damaged during freezing and simultaneous storage. Accordingly, plaintiffs raised an issue of fact regarding the adequacy of the storage, maintenance and preservation of plaintiffs’ embryos at CFHR that precludes summary judgment … Accordingly, the order of the Supreme Court, New York County (John J. Kelley, J.), entered December 9, 2022, which granted the motion of defendants Center for Human Reproduction, American Infertility of New York, P.C., Helen Shi Zhong, and Jaime Lee for summary judgment dismissing the complaint against them, should be modified, on the law, to the extent of reinstating plaintiffs’ claims for negligence based upon allegations of improper storage, maintenance and preservation of plaintiffs’ cryopreserved embryos, and otherwise affirmed, without cost.”
Source Bledsoe v Center for Human Reproduction, 2024 NY Slip Op 02088.
If you or a family member suffered harm as a result of fertility treatments in New York or in another U.S. state, you should promptly find a New York medical malpractice lawyer, or a medical malpractice lawyer in your U.S. state, who may investigate your fertility malpractice claim for you and represent you or your family member in a fertility medical malpractice case, if appropriate.
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