Court Revives Foreign Object Malpractice Case: The Supreme Court of the State of New York Appellate Division Fourth Judicial Department (“New York Appellate Court”) stated in its June 9, 2023 Memorandum and Order: “We agree with plaintiff that the court erred in granting the motions inasmuch as defendants failed to meet their initial burdens of establishing that the action is time-barred. Where, as here, a malpractice “action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced 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” (CPLR 214-a [a]).”
The defendants relied on a note contained in the PCP’s records, which purportedly referenced the finding of a foreign object, and the affidavit of the PCP, in which he stated that it was his “custom and practice to discuss the findings from [a] procedure/test with the patient at the next visit or sooner.” The New York Appellate Court stated: “In order to establish the admissibility of the PCP’s habit evidence, defendants were required to establish that the PCP engaged in a routine practice of informing patients of the results of their diagnostic procedures and that his practice did not vary from patient to patient … We conclude that defendants failed to do so. The affidavit of decedent’s PCP, submitted in support of the motions, explicitly concedes that the manner in which he informs patients of the results of diagnostic procedures varies. Decedent’s PCP would inform patients of those results either “at the next visit or sooner, if indicated by the circumstances” (emphasis added). Further, the presence “of what appears to be two surgical sponges in [decedent’s] pelvis” was noted only in an “Incidental Note” in the report of the results of decedent’s barium enema, which also suggested that the finding should be confirmed by a CT scan of decedent’s pelvis. The affidavit of the PCP did not, however, provide any evidence that it was the PCP’s habit to discuss incidental notes with patients, and none of the other “assessments” noted in the PCP’s records refers to the presence of the foreign body or the need for a confirmatory CT scan of decedent’s pelvis. Thus, the affidavit failed to lay an adequate foundation for consideration of the PCP’s practices as habit evidence … We further agree with plaintiff that decedent’s medical records and plaintiff’s deposition testimony, also submitted by defendants, do not establish that decedent was aware of the foreign body more than one year before she commenced this action.”
The New York Appellate Court further stated: “Defendants also failed to establish that, more than one year prior to commencing this action, decedent had discovered facts that “would reasonably lead” to the discovery of the foreign object (CPLR 214-a [a]). Defendants’ reliance on decedent’s failure to discover the presence of the foreign body based on the gastrointestinal symptoms that she suffered for approximately three years between 2013 and 2016 is without merit. The medical records establish that decedent “made timely and persistent inquiries to medical . . . professionals with respect to [her symptoms] following the surger[ies]”.”
The New York Appellate Court held: “Inasmuch as defendants failed to establish that decedent was or should have been aware of the presence of the foreign body more than one year prior to commencing this action, the burden never shifted to plaintiff to aver evidentiary facts establishing that the limitations period had not expired, that it was tolled, or that an exception to the statute of limitations applied.”
Source Baker v. Eastern Niagara Hospital, Inc., 38 CA 22-00006.
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