Court of Appeals Clarifies A Key Limitations Issue In Med Mal Cases

Walton v Strong Mem. Hosp.

___ NY3d ___, 2015 NY Slip Op 04786 [2015]

The Court of Appeals has just issued this significant opinion reviewing its major precedents concerning the foreign-object rule in medical malpractice cases, arriving at the factors determining when a given object may qualify for the discovery rule codified in CPLR 214-a, and when it must be excluded as a “fixation device.”

Recall that where a med mal action is based on the discovery of a foreign object in the patient’s body, the statute allows for an extension of the limitations period, for a year after the discovery. Excepted from consideration as “foreign objects” are chemical compounds, fixation devices, and prosthetic aids or devices. Defendants will argue for a broad definition of these terms, thus narrowing the category of foreign objects subject to the discovery rule. Plaintiffs, of course, take the opposite tack.

The classic scenario was presented in Flanagan v Mount Eden Gen. Hosp. 24 N.Y.2d 427 [1969], where a surgical clamp was negligently left in the patient’s body. Clearly, the clamp was a “foreign object.” The Court of Appeals held that the limitations period would start to run at the discovery of the foreign object. Flanagan’s immediate progeny gave the case an expansive reading and applied its discovery rule to cases far afield from its facts. CPLR 214-a was enacted in reaction to these cases, and to restrict the reach of the discovery rule. Later cases have not been as clear-cut as Flanagan, involving IUDs which should have been removed but weren’t (Rodriguez v Manhattan Med. Group, 77 NY2d 217 [1990]); a mis-placed suture whose effect was not discerned for 18 years (Rockefeller v Moront, 81 N.Y.2d 560 [1993]); and a nasal stent which somehow wound up in the patient’s sinus (LaBarbera v New York Eye & Ear Infirmary, 91 N.Y.2d 207 [1998]). These all involve the interplay between the terms “fixation devices” and “foreign objects.”

The plaintiff here underwent heart surgery in 1986, when he was three years old. Among the various lines and tubes inserted in his body was a catheter in the left atrium of his heart to measure local pressure. The lines were not removed until three days after the surgery. A nursing note indicated that a portion of the left atrial catheter had broken off and remained in the patient. No indication was given as to why no corrective action was taken at that time.

The fragment of catheter was not found until 2008, when the source of a transient ischemic attack was investigated, and exploratory surgery found the fragment. The action was commenced within a year of the discovery, against the physicians and hospital involved in the 1986 surgery, claiming that the negligent failure to remove the entire catheter caused the plaintiff to suffer a stroke and several transient ischemic attacks.

The defendants moved for summary judgment on limitations grounds. They argued, in part, that the foreign object rule did not apply, since in their view the catheter qualified as a “fixation device,” in that it had been intentionally placed in the plaintiff’s body for medical purposes. The plaintiff’s view was that the catheter was not part of treatment in and of itself, but was merely the conduit for information to devices outside the plaintiff’s body. It could not, in the plaintiff’s view, be a fixation device since it neither secured tissues to each other nor provided support for tissues, either temporarily or permanently.

Supreme Court rejected the notion that the catheter had been a fixation device, but still held that the fragment left behind had not been a foreign object, since it had originally been placed in the plaintiff’s body for a medical purpose. The Appellate Division considered that the catheter was in fact a fixation device, within the meaning of the Court of Appeals’ precedent in Rockefeller, in that it was intentionally placed in the patient’s body to serve a continuing treatment purpose. The essence of a “foreign object,” on the other hand, is that it is negligently left behind, without any treatment purpose.

The Court of Appeals reversed, holding that the logic of its precedents made for a narrower definition of “fixation device,” which did not include the catheter. The Court discerned from its precedents five general principles:

“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.” [citations omitted]

The Court also explained that the term “fixation device” cannot be broadly interpreted to include every item placed in a patient’s body for treatment purposes, thus excluding them from consideration as “foreign objects.” Sutures, as in Rockefeller, and stents, as in LaBarbera, are “fixation devices” because they serve the purposes of securing and supporting bodily tissues, respectively, and are placed in the body for those treatment purposes. The converse does not necessarily follow: Everything placed in the body for a treatment purpose is not therefore a “fixation device.”

Applying these principles here, the catheter was introduced as part of the surgery, but neither secured nor supported bodily tissues. Hence, it was not a “fixation device” and not excluded from consideration as a “foreign object.” While not quite matching the classic scenario of Flanagan (the catheter was not removed for three days, and its removal was “botched” instead of forgotten) the facts were sufficiently similar to justify the application of the “foreign object” extension.

The Court therefore reversed the Appellate Division, and the motion to dismiss was denied.

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