foreign object exception in New York

1997Given the unequivocal language used by the Court of Appeals, most recently in Rockefeller (supra, at 566 ) and Rodriguez (supra), that the courts may not broaden the "narrow confines” of the foreign object discovery rule, we must reject plaintiff’s contention that the stent is, in effect, a hybrid creature, that it is a fixation device for a limited period of time (i.e., the time it is intended to remain in the body), but has the capacity to become a foreign object if not removed at the conclusion of its "useful life.” He asks this Court to carve an exception to the foreign object rule, to rec

1994We note that our conclusion is in accord with the legislative intent expressed in CPLR 214-a recognizing the continuous treatment doctrine and the foreign object rule as the only exceptions to the general rule regarding the accrual of a medical malpractice cause of action, and courts have been reluctant to broaden the narrow confines of the exceptions contained in CPLR 214-a (see, Rockefeller v Moront, 81 NY2d 560 ).

1995(See, Mitchell v Abitol, 130 AD2d 633 [2d Dept 1987] [foreign object exception does not apply to a claim that the physician failed to use the proper suturing material thereby causing inflammation and pain in the area of the incision].) Accordingly, plaintiffs’ first cause of action is time barred.

1987Although we held in a previous appeal involving these litigants that the insertion of an intramedullary nail, which is a fixation device, would fall within the ambit of the foreign object exception to the Statute of Limitations and that the plaintiff’s cause of action, therefore, accrued upon discovery of the broken nail (see, Szajna v Rand, 75 AD2d 617 ), "it is now clear that a fixation device placed intentionally within the body cannot be considered a foreign object even with respect to claims which arose prior to July 1, 1975, the effective date of CPLR 214-a” (Mitchell v Abitol, 130 AD2d

2016(Walton, 25 NY3d at 557 .) In applying these principles, the Court of Appeals observed that the polyvinyl catheter in question functioned like a sentinel and “a conduit for information from [the] cardiovascular system” and “performed no securing or supporting role during or after surgery.” (Walton, 25 NY3d at 572 .) Therefore, they were not fixation devices that were categorically excluded from the foreign object exception in CPLR 214-a.

2016(Walton, 25 NY3d at 557 .) In applying these principles, the Court of Appeals observed that the polyvinyl catheter in question functioned like a sentinel and “a conduit for information from [the] cardiovascular system” and “performed no securing or supporting role during or after surgery.” (Walton, 25 NY3d at 572 .) Therefore, they were not fixation devices that were categorically excluded from the foreign object exception in CPLR 214-a.

1997It is instructive for our analysis here that, prior to Rockefeller , the Third Department had found that the hemoclips in Vinciguerra v Jameson (supra), although deliberately placed and meant to be left in plaintiff, did become "foreign objects” because they were attached to the wrong organ during surgery ( 153 AD2d 452, 454-455 ).

1997It is instructive for our analysis here that, prior to Rockefeller , the Third Department had found that the hemoclips in Vinciguerra v Jameson (supra), although deliberately placed and meant to be left in plaintiff, did become "foreign objects” because they were attached to the wrong organ during surgery ( 153 AD2d 452, 454-455 ).

1995Group, 77 NY2d 217, 221-222, 224 ; Goldsmith v Howmedica, Inc., 67 NY2d 120, 123 ; Beary v City of Rye, supra, at 415.) These cases indicate, notwithstanding the dictum in Mateo v Rish ( 86 AD2d 736 ), which opined a possibility that the foreign object exception might apply where less than medical grade silicone was injected into a plaintiff, that the exception as interpreted does not apply.

1990Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so (e.g., Sternberg v Gardstein, 120 AD2d 93 [2d Dept]; Ooft v City of New York, 80 AD2d 888 [2d Dept]), but not apply when a doctor negligently fails to remove a tumor after undertaking to do so (e.g., Florio v Cook, 65 AD2d 548, 549 [2d Dept], affd 48 NY2d 792 ; see also, Famulare v Huntington Hosp., 78 AD2d 547 [2d Dept])?

1990Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so (e.g., Sternberg v Gardstein, 120 AD2d 93 [2d Dept]; Ooft v City of New York, 80 AD2d 888 [2d Dept]), but not apply when a doctor negligently fails to remove a tumor after undertaking to do so (e.g., Florio v Cook, 65 AD2d 548, 549 [2d Dept], affd 48 NY2d 792 ; see also, Famulare v Huntington Hosp., 78 AD2d 547 [2d Dept])?

1990Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so (e.g., Sternberg v Gardstein, 120 AD2d 93 [2d Dept]; Ooft v City of New York, 80 AD2d 888 [2d Dept]), but not apply when a doctor negligently fails to remove a tumor after undertaking to do so (e.g., Florio v Cook, 65 AD2d 548, 549 [2d Dept], affd 48 NY2d 792 ; see also, Famulare v Huntington Hosp., 78 AD2d 547 [2d Dept])?

1990Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so (e.g., Sternberg v Gardstein, 120 AD2d 93 [2d Dept]; Ooft v City of New York, 80 AD2d 888 [2d Dept]), but not apply when a doctor negligently fails to remove a tumor after undertaking to do so (e.g., Florio v Cook, 65 AD2d 548, 549 [2d Dept], affd 48 NY2d 792 ; see also, Famulare v Huntington Hosp., 78 AD2d 547 [2d Dept])?

1990Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so (e.g., Sternberg v Gardstein, 120 AD2d 93 [2d Dept]; Ooft v City of New York, 80 AD2d 888 [2d Dept]), but not apply when a doctor negligently fails to remove a tumor after undertaking to do so (e.g., Florio v Cook, 65 AD2d 548, 549 [2d Dept], affd 48 NY2d 792 ; see also, Famulare v Huntington Hosp., 78 AD2d 547 [2d Dept])?

1990Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so (e.g., Sternberg v Gardstein, 120 AD2d 93 [2d Dept]; Ooft v City of New York, 80 AD2d 888 [2d Dept]), but not apply when a doctor negligently fails to remove a tumor after undertaking to do so (e.g., Florio v Cook, 65 AD2d 548, 549 [2d Dept], affd 48 NY2d 792 ; see also, Famulare v Huntington Hosp., 78 AD2d 547 [2d Dept])?

1987Although we held in a previous appeal involving these litigants that the insertion of an intramedullary nail, which is a fixation device, would fall within the ambit of the foreign object exception to the Statute of Limitations and that the plaintiff’s cause of action, therefore, accrued upon discovery of the broken nail (see, Szajna v Rand, 75 AD2d 617 ), "it is now clear that a fixation device placed intentionally within the body cannot be considered a foreign object even with respect to claims which arose prior to July 1, 1975, the effective date of CPLR 214-a” (Mitchell v Abitol, 130 AD2d

1987Accordingly, since the analysis employed by this court in the prior appeal no longer reflects the current state of the law, the doctrine of law of the case should not be invoked to preclude reconsideration of the Statute of Limitations question nor does the doctrine preclude the application of those cases which unequivocally stand for the proposition that an intentionally implanted fixation device cannot be deemed a foreign object so as to toll the Statute of Limitations until discovery of the injury (see, Foley v Roche, 86 AD2d 887 , lv denied 56 NY2d 507 , supra).

1987Although we held in a previous appeal involving these litigants that the insertion of an intramedullary nail, which is a fixation device, would fall within the ambit of the foreign object exception to the Statute of Limitations and that the plaintiff’s cause of action, therefore, accrued upon discovery of the broken nail (see, Szajna v Rand, 75 AD2d 617 ), "it is now clear that a fixation device placed intentionally within the body cannot be considered a foreign object even with respect to claims which arose prior to July 1, 1975, the effective date of CPLR 214-a” (Mitchell v Abitol, 130 AD2d

1983Turning to the continuing treatment exception, the treatment from the physician to plaintiff may not be imputed to the hospital (McDermott v Torre, 56 NY2d 399 ).

1979Hosp., 24 NY2d 427 ) and (2) the continuous treatment rule (Borgia v City of New York, 12 NY2d 151 ).

1977In the opinion of the court the holding in McQueen (supra) is not apposite and does not preclude the application of the foreign object rule to the facts of the case at bar.

1977In support of its contention that plaintiffs’ complaint alleges negligent diagnosis or treatment, the defendant County of Nassau relies on the case of McQueen v County of Nassau ( 83 Misc 2d 865 ).