Mooney v. New York Fertility Institute

Background

Nicole and Christopher Mooney received fertility treatment from New York Fertility Institute, 1016 5th Avenue Gynecology, PC, Majid Fateh, M.D., and Khalid M. Sultan, M.D., from April 2015 through March 2019. They alleged medical malpractice involving two embryo transfers.

On August 8, 2016, records indicated that one of two embryos involved in the transfer was “dead,” while other records, photographs, Dr. Sultan’s notes, and his testimony supported the defendants’ position that two embryos were transferred. The Mooneys contended that an embryo died after thawing but before transfer and that they were not properly informed.

On August 16, 2017, a “special considerations” embryo was transferred to a gestational carrier even though a healthy female embryo from the same cycle was available. The Mooneys alleged that they were not told about the transfer of the special considerations embryo or the remaining healthy embryo until about two years later. The defendants maintained that the special considerations embryo was the best embryo available for transfer and that the records identifying a different embryo reflected a computer-entry error.

The defendants moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is granted when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law.

Court’s analysis

Under New York medical-malpractice law, a plaintiff generally must prove the applicable standard of care, a departure from that standard, and that the departure proximately caused an injury. Expert testimony is ordinarily required to establish those points.

August 16, 2017 transfer

The court denied summary judgment concerning the use of the special considerations embryo. The defendants’ expert did not offer an opinion on whether the standard of care permitted transferring that embryo instead of a healthy embryo. The Mooneys’ expert, by contrast, opined that common practice was to choose a healthy embryo when one was available. The court found that this created questions of fact about whether the defendants departed from the standard of care.

The court also found a factual dispute about causation. The Mooneys could proceed on the theory that using the special considerations embryo reduced the chance of achieving a pregnancy from that transfer. They could also proceed on the theory that failing to tell them that the healthy female embryo had not been transferred caused emotional distress when they later learned that fact.

August 8, 2016 transfer

The court also denied summary judgment concerning the alleged dead embryo. The NYFI records created a factual dispute about whether an embryo died after thawing and before transfer. Although the defendants offered evidence that two live embryos were transferred, the court concluded that the Mooneys’ reliance on NYFI’s own records was more than a conclusory allegation.

The Mooneys could proceed only on the theory that, if an embryo died, the defendants’ failure to inform them caused emotional distress. The court held that their expert report did not support a theory that the failure to thaw and transfer a replacement embryo reduced the chance of a successful pregnancy. The court therefore limited the damages theory for this transfer to emotional distress.

Record-keeping and other allegations

The court granted the motion as to a stand-alone claim that the defendants committed malpractice by failing to maintain accurate records. The Mooneys had effectively conceded that they were not pursuing record-keeping failures as an independent malpractice claim. The court noted, however, that record discrepancies might still be admissible as evidence of the other malpractice theories.

The court also granted the motion as to allegations not addressed by the Mooneys’ expert report. Those allegations concerned failure to prescribe appropriate medications or treatments, failure to conduct preimplantation genetic screening, negligent prescription of excessive medication doses, and negligent care allegedly leading to poor success or performance rates. The court stated that the last allegation was not included in the amended complaint in the first place.

Disposition

The court granted in part and denied in part the defendants’ summary-judgment motion. The Mooneys could proceed to trial on the limited theories concerning the August 8, 2016 and August 16, 2017 embryo transfers. The clerk was directed to close the motion at Docket 42, and the court set pretrial deadlines.