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RE: IN VITRO FERTILIZATION: RETRIEVING AND FERTILIZING THE EGGS ARE SUBJECT TO THE MEDICAL-MALPRACTICE STATUTE OF LIMITATIONS; STORING AND MAINTAINING THE FROZEN EGGS ARE SUBJECT TO THE ORDINARY NEGLIGENCE STATUTE OF LIMITATIONS; THE MEDICAL MALPRACTICE ACTIONS ARE UNTIMELY; THE ORDINARY NEGLIGENCE ACTIONS ARE TIMELY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Shulman, determined plaintiffs’ causes of action alleging defendants did not properly freeze, store and maintain embryos for future implantation sounded in negligence, not medical malpractice, and were therefore timely:

The underlying parts of the IVF [in vitro fertilization] 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 … . 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” … . Where an act is more “‘administrative’ than medical in nature,” conduct is “measured by ordinary negligence standards” … . While the cryopreservation storage tanks … 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, [defendants] 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 … . Bledsoe v Center for Human Reproduction, 2024 NY Slip Op 02088, First Dept 4-18-24

Practice Point: The opinion in this “in vitro fertilization” case clearly demonstrates the distinction between medical malpractice and ordinary negligence. The retrieving, fertilizing and grading of the embryos involve specialized medical skills and implicate the medical-malpractice criteria. The storage and maintenance of the frozen embryos, on the other hand, implicate ordinary negligence criteria. Here the medical malpractice causes of action were untimely. But the ordinary negligence causes of action were timely.

 

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