LaBello v. Albany Medical Center Hospital

Yesawich Jr., J. (dissenting).

We respectfully dissent and vote to affirm Supreme Court’s order.

We cannot subscribe to the premise necessarily underlying the majority’s decision, that the infant’s cause of action accrued before he was born. Although in most instances a malpractice action accrues when the act of malpractice is committed, that is also ordinarily the first time at which the injured party could possibly allege all of the elements of the tort.* Here, however, this specific "rule” must yield to the general principle that no action can accrue until the plaintiff has a legal right to…