On Thursday, Judge Ho largely denied the motions for summary judgment of three fertility-services-related defendants against negligence claims stemming from the failed freezing of unfertilized eggs (oocytes). In 2014, Plaintiff Larisa Lev-Ary underwent a medical procedure to extract and store her oocytes. Sixteen of these oocytes were deemed viable and subsequently frozen until 2021, when they were thawed for fertilization. At that time, it was discovered that the oocytes “were all destroyed and unusable.”

In a matter of first impression, the Court asked whether the alleged breaches gave rise to ordinary negligence or medical malpractice claims:

The Court has been unable to identify any cases that directly address the precise question presented here—i.e., whether claims arising from the act of freezing oocytes sound in medical malpractice or in ordinary negligence. But the principle articulated by the New York Court of Appeals in Weiner—that claims arising from acts that are “not linked to the medical treatment of a particular patient” sound in ordinary negligence—compels the conclusion that Ms. Levy-Ary’s claim against AFS arising from the freezing of her oocytes do not sound in medical malpractice. True, freezing oocytes is certainly related to medical treatments, as it follows one medical treatment (the retrieval of the oocytes) and may precede another one (e.g., implantation of an embryo). But that is also true of the testing of donated blood for infectious diseases, which similarly follows one medical treatment (the drawing of blood), and may precede another one (e.g., transfusion)—and the Court of Appeals nevertheless concluded that blood testing is not an act “linked” to such treatment for purposes of determining whether a claim falls within the realm of medical malpractice. Similarly, here, the act of freezing oocytes itself is not “linked to the medical treatment of a particular patient,” and therefore claims arising from that act do not sound in medical malpractice.

In its decision, the Court declined to extend the holding of Bledsoe v. Ctr. for Hum. Reprod., 207 N.Y.S.3d 519, 521 (App. Div. 1st Dept. 2024). Bledsoe held that “preparing” eggs to be frozen “would fall within the realm of medical malpractice,” based on the “special skills” required. In contrast, the alleged action here was not “preparing” the oocytes to be frozen, but rather the “actual act of freezing” them. Absent controlling authority from the New York Court of Appeals, the Court explained that Appellate Division decisions were merely “helpful indicators,” and that the Court of Appeals’ statement in Weiner was “the clearest relevant guidance” given that the allegations in this matter were not based on the preparation of the oocytes.

The case is 23 Civ. 05504.