Two couples who've filed lawsuits gave birth to children in 2009 who have Fragile X syndrome.  This is a genetic condition that has been linked to developmental and intellectual defects.  Symptoms are wide-ranging but can include delays in talking, anxiety, hyperactive behavior, and seizures.  Physical features of Fragile X might include larger than normal ears, a long face, a prominent jaw and forehead, and flat feet.The parents were told by physician Alan Copperman and Reproductive Medicine Associates, where the infertility treatments were performed, that the donors were screened for any genetic abnormalities prior to completing the procedure, which is standard protocol.  Donors are typically screened for multiple potentially serious abnormalities including Fragile X, cystic fibrosis, spinal muscular atrophy, sickle cell anemia, beta-thalassemia, among many others.Lawsuits were filed two years after the birth of the children after their genetic limitations became apparent, and more than two and a half years following the couples’ final treatment at the clinic.  As soon as the syndrome was evident, the donors were tested and were also found to be positive.

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New York’s medical malpractice statute of limitation typically bars lawsuits filed more than two and a half years from the alleged misconduct or from the time a patient is last seen.  The only exception is if a medical instrument is left in a patient.  According to the statute, a lawsuit involving this type of error would need to be filed “within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.”  Attorneys for the Reproductive Medicine Associates (RMA) clinic and physician Alan Copperman argued the case was filed too late.According to Copperman’s profile on Reproductive Medicine Associates’ site, he is a highly accomplished physician with a wealth of experience. “Copperman is Director of the Division of Reproductive Endocrinology and Infertility as well as the Vice-Chairman of the Department of Obstetrics, Gynecology and Reproductive Science at Mount Sinai Medical Center.  Dr. Copperman is a Clinical Professor of Obstetrics, Gynecology and Reproductive Science at the Mount Sinai School of Medicine and also serves as Medical Director of RMA of New York.  He is an experienced and respected clinician, has published numerous manuscripts and book chapters on reproductive medicine, and has co-authored hundreds of scientific abstracts on infertility, in vitro fertilization, egg freezing, ovum donation, and genetics.”  Given his background, the physician should have followed protocol.However, Attorney James LiCalzi said it makes no sense to expect the parents to file a lawsuit before they even knew about the abnormality and given that the injury was not immediately apparent to the plaintiffs.  The New York Court of Appeals also ruled 5-1 that the case was different from most malpractice claims. “Thus the statute of limitations must run from the date of birth,” wrote Chief Judge Janet DiFiore.  Representatives responded it’s outside the power of the court to extend the statute, and rather, it should be up to elected lawmakers to change the rules.

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