June 11, 2015 – New York State Court of Appeals clarifies what constitutes a foreign object for purposes of the discovery rule.
Under CPLR 214-a an injured plaintiff can avoid the imposition of the normal two (2) years and six (6) month statute of limitations and specifically "where the cause of 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 . . ."
Since even before enactment of CPLR 214-a the Courts have struggled with the definition of a "foreign object." In Walton v Strong Memorial Hospital, 2015 NY Slip Op 04786 [June, 10 2015], the Court of Appeals provides a detailed analysis of the foreign object case law and provides the following guidance to practitioners:
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 failure to timely remove a fixation device (such as an IUD or stent) does not transform it into a foreign object;
3. A fixation device does not become a foreign object if inserted in the wrong place in the body (such as a suture);
4. The failure to timely remove a fixation device is more similar to a misdiagnosis and improper placement of a fixation device is properly characterized as negligent medical treatment;
5. CPLR 214-a is to be read narrowly to encompass only true foreign objects and explicitly excludes prosthetic aids or devices and fixation devices.
The Court ultimately determines that a catheter left in the plaintiff's heart that had been initially inserted for monitoring purposes was not a fixation device but instead a foreign object, giving the plaintiff the benefit of the discovery rule. The Court held that the catheter was a surgical device similar to a scalpel or sponge and leaving it in the plaintiff's body did not convert it into a fixation device. Ultimately the Court looked to the nature of the material left behind and its intended function and as the catheter in this case served no purpose whatsoever it could not be considered a fixation device.
Thankfully the Court refused to so narrowly interpret the statute to encompass all objects left behind if they served any legitimate medical purpose. Such an interpretation would have eviscerated the discovery rule in almost all foreign object cases. To read the full opinion of the case, please click here.
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