A rare but serious example of medical malpractice is a surgeon inadvertently leaving an object inside of a patient following surgery. Under New York law, the statute of limitations for pursuing a medical malpractice claim differs when the claim involves the discovery of a foreign object within the body of the patient.
The Appellate Division of the Supreme Court of New York recently addressed what constitutes a foreign body in a case where it was disputed whether the plaintiff filed his lawsuit within the statute of limitations. If you suffered injuries or illness due to a foreign object that was left inside of your body following a surgery, you should consult a knowledgeable Rochester medical malpractice attorney to discuss your case.
The Plaintiff’s Surgery
Allegedly, the plaintiff underwent surgery at the defendant hospital in 1993, during which a ureteral stent was inserted. The plaintiff alleged the defendant carelessly failed to remove the stent which caused him harm. The stent was not discovered by the plaintiff until 2012, and the plaintiff filed a medical malpractice action against the defendant in 2013. The defendant denied that it placed the stent in the plaintiff, but it no longer had the surgical records to support the argument. Further, the defendant argued that even if it had placed the stent the plaintiff’s action should be dismissed because it was not filed within the time period set forth in the applicable statute of limitations. As such, the defendant filed a motion for summary judgment, which the trial court denied. The defendant subsequently appealed.
Foreign Objects in New York Medical Malpractice Cases
The statute of limitations for filing a medical malpractice case in New York is two years and six months from the date of the allegedly harmful act or omission. In cases where the medical malpractice is allegedly caused by a foreign object in the body of the patient, however, the statute of limitations is one year of the date of the discovery of the object or of facts which would reasonably lead to the discovery of the object. In assessing whether an object should be considered a foreign object the court looks at the nature of the object and its stated function.
Here, the court found that the plaintiff failed to produce evidence to support the argument that the stent was a foreign object. Specifically, expert testimony produced by both parties in the case stated that the stent was intentionally left in the body to assist the function of the kidneys. Further, the court noted the stent was inserted to facilitate post-surgical healing and was not an object used to facilitate the surgical process itself, like a sponge or a clamp. As such, the court found that the stent was not a foreign object and the plaintiff’s case was barred by the statute of limitations.
Meet with a Skilled Rochester Medical Malpractice Lawyer to Discuss your Case
Surgeons have a duty to ensure that no foreign objects are left in a patient’s body following surgery. If you sustained harm due to a forgotten surgical implement, you should retain an experienced Rochester medical malpractice attorney to assist you in pursuing damages against the surgeon. The experienced Rochester medical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers will aggressively seek the full amount of any compensation you may be owed. We can be reached at 315-479-9000 or through our online form to set up a free and confidential conference.
More Blog Posts:
Organ Puncture or Perforation Caused by New York Medical Malpractice, Rochester Medical Malpractice and Personal Injury Blog, June 15, 2018