In its decision filed on June 7, 2017, the Supreme Court of the State of New York Appellate Division: Second Judicial Department (“New York Appellate Court”) held that a camera capsule swallowed by the plaintiff in order to diagnostically visualize the condition of the plaintiff’s intestines (known as a capsule endoscopy) was not a “foreign object” that would extend New York’s two years and six months medical malpractice statute of limitations, to one year from the date of the discovery of a foreign object in the plaintiff’s body.
The defendant gastroenterologist had the plaintiff swallow the camera capsule in January 2008 in order to diagnose and treat her Crohn’s disease. The camera capsule works by transmitting pictures to a computer worn by the plaintiff during the procedure. The procedure was intended to last six to eight hours, after which the camera capsule was expected to pass through and exit the plaintiff in the normal course of digestion (i.e., pooped out).
The plaintiff had a CT scan taken in January 2009 that showed the presence of a metallic object lodged inside her intestines. The plaintiff alleged that she was never advised of the results of the 2009 CT scan. A CT scan performed in 2011 revealed the presence of the endoscopic capsule camera inside of her intestines, which had to be surgically removed.
The plaintiff filed her New York medical malpractice lawsuit in August 2011 in which she alleged lack of informed consent and that the defendants committed medical malpractice. The defendants moved pursuant to CPLR 3211(a)(5) to dismiss the plaintiff’s New York medical malpractice complaint as being time-barred. The trial court granted the motion to dismiss and the plaintiff appealed.
New York Appellate Court Decision
CPLR 214-a provides that where a New York medical malpractice claim 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. The statute provides that a “fixation device” is not a “foreign object.”
The New York Appellate Court stated that in determining whether an object which remains in the patient constitutes a “foreign object,” courts should consider the nature of the materials implanted in a patient, as well as their intended function.
The New York Appellate Court stated that in determining whether objects are foreign objects pursuant to CPLR 214-a, the question is whether the objects are analogous to tangible items like surgical clamps 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.
In the case it was deciding, the New York Appellate Court held: “The capsule camera at issue herein was used diagnostically to visualize the condition of the plaintiff’s intestines. It was not used or even introduced into the plaintiff’s body in the course of a surgical procedure. Rather, the capsule camera was knowingly and intentionally swallowed by the plaintiff with the expectation that it would travel through her digestive system until eliminated in the regular course of digestion. Thus, the malpractice alleged against the moving defendants, the failure to recognize from the 2009 CT scan that the observed metallic object was a retained endoscopic capsule camera, and to advise the plaintiff of such, “”is most logically classified as one involving misdiagnosis—a category for which the benefits of the “foreign object” discovery rule have routinely been denied.””
The New York Appellate Court therefore held that the trial court correctly rejected the plaintiff’s argument that the statute of limitations was tolled by the foreign object discovery rule so as to render her cause of action alleging malpractice timely.
Source Leace v. Kohlroser, D52503
If you may have been injured as a result of a foreign object left behind during 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 case, if appropriate.
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