In a recent case, the New York Court of Appeals (New York’s highest court) discussed the New York statute of limitations in medical malpractice claims that allege injuries due to foreign objects left in patients. In particular, the Court of Appeals discussed what is a “foreign object” for purposes of the discovery rule (CPLR 214-a).
CPLR 214-a provides that a New York medical malpractice lawsuit must normally be brought within two years and six months of “the act, omission or failure complained of[,] . . . where the action is based upon the discovery of a foreign object in the body of the patient, [it] 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. . . . For the purpose of this section, the term ‘foreign object’ shall not include a chemical compound, fixation device or prosthetic aid or device.” (emphasis added)
The Underlying Facts
The plaintiff was three-years-old when he underwent surgery on May 27, 1986 to correct a congenital heart malformation, during which a polyvinyl catheter was placed within the plaintiff’s left atrium for recording atrial pressure. Three days later, while the plaintiff was still in the surgical intensive care unit, the catheters, pacing wires, and drainage tubes were removed from his body but unbeknownst to the plaintiff, part of the catheter broke off as it was being removed and remained within his heart.
In April 2001, the plaintiff had a pacemaker inserted into his heart. In May 2002, the plaintiff had surgery to replace a damaged heart valve with a porcine valve. On March 2, 2003, the plaintiff suffered an embolic stroke. On December 2, 2008, the plaintiff had a transient ischemic attack, after which his pacemaker’s battery was replaced on December 4, 2008 (an echocardiogram at that time revealed “a regular-appearing left atrial foreign body”). On December 18, 2008, the plaintiff had exploratory surgery during which plastic tubing was discovered in his heart.
Plaintiff’s New York Medical Malpractice Lawsuit
The plaintiff filed his New York medical malpractice lawsuit on November 24, 2009, alleging that the medical malpractice defendants negligently left a foreign body in his heart (a portion of an atrial catheter in the left and/or right atrium of his heart) while treating him from May 26 to June 7, 1986, causing him to suffer serious and permanent injuries (a stroke and transient ischemic attacks), and that he could not have reasonably discovered the presence of the foreign body prior to December 4, 2008.
The medical malpractice defendants argued that the plaintiff’s New York medical malpractice lawsuit should have been commenced by May 30, 1996 (10 years after they had allegedly failed to remove the entire catheter), citing CPLR 208 (imposing a 10-year cap on the commencement of an infant’s medical malpractice action). The defendants further argued that although the plaintiff sued within one year of discovery of the tubing, the catheter was necessarily a “fixation device” and therefore was not a foreign object because it was intentionally placed inside the plaintiff during the operation and served a continuing medical purpose beyond the procedure itself.
The trial court dismissed the plaintiff’s medical malpractice claims with prejudice, determining that the catheter left in the plaintiff was not a fixation device but also determining that it was not a foreign object because it was left in the plaintiff’s body deliberately with a continuing medical purpose. The plaintiff appealed to the Appellate Division, which agreed that the plaintiff’s medical malpractice lawsuit was untimely, but for a different reason: the catheter, which was deliberately inserted into plaintiff’s heart to monitor atrial pressure, was a fixation device within the meaning of the statute. The plaintiff then appealed to the Court of Appeals.
The Court Of Appeals Decision
After thoroughly discussing its decisions and holdings in prior medical malpractice foreign object cases, the Court of Appeals cited a prior case in which it stated, “We observed that when deciding whether an item of medical paraphernalia is a foreign object, ‘the courts should consider the nature of the materials implanted in a patient, as well as their intended function. Objects such as surgical clamps, scalpels, and sponges are introduced into the patient’s body to serve a temporary medical function for the duration of the surgery, but are normally intended to be removed after the procedure’s completion . . . . By contrast, items which are placed in the patient with the intention that they will remain to serve some continuing treatment purpose constitute ‘fixation devices’.”
The Court of Appeals stated in the present case: “Several general principles may be distilled from our cases considering the foreign object exception: (1) tangible items (clamps, scalpels, sponges, etc.) introduced into a patient’s body solely to carry out or facilitate a surgical procedure are foreign objects if left behind; (2) the alleged failure to timely remove a fixation device does not transform it into a foreign object; (3) nor does a fixation device become a foreign object if inserted in the wrong place in the body; (4) failure to timely remove a fixation device is generally akin to misdiagnosis, and improper placement of a fixation device is most readily characterized as negligent medical treatment; and (5) the Legislature, in enacting CPLR 214-a, directed the courts not to exploit the rationale supporting Flanagan to expand the discovery exception for foreign objects beyond the rare Flanagan fact pattern, and explicitly commanded that chemical compounds, fixation devices and prosthetic aids or devices are never to be classified as foreign objects.”
(In Flanagan, the doctor had inserted surgical clamps in the body of the plaintiff during the course of gall bladder surgery. Eight years later, after experiencing severe abdominal pain, the plaintiff consulted another physician, who discovered by x-ray that the clamps remained in her body, which were then surgically removed. The Court of Appeals held in Flanagan that “where a foreign object has negligently been left in the patient’s body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice”)
In the present case, the Court of Appeals stated that the catheter inserted in the left atrium of the plaintiff’s heart performed no securing or supporting role during or after surgery. Because the catheters under the facts of this case are therefore not fixation devices (or chemical compounds or prosthetic aids or devices), they are not categorically excluded from the foreign object exception in CPLR 214-a.
The Court of Appeals held that the catheters are analogous to tangible items like the clamps in Flanagan or other surgical paraphernalia (e.g., scalpels, sponges, drains) likewise introduced into a patient’s body solely to carry out or facilitate a surgical procedure. The Court of Appeals reversed the order of the Appellate Division and also denied the defendants’ motion to dismiss the complaint as time-barred.
Source Walton v. Strong Memorial Hospital, et al., No. 67 (June 10, 2015).
If you may have been injured as a result of a foreign object left after a medical procedure in New York or in another U.S. state, you should promptly consult with a New York medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your foreign object medical malpractice claim for you and represent you in a foreign object medical malpractice lawsuit, if appropriate.
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