A medical malpractice lawsuit, like most civil claims, must be pursued in a timely manner; otherwise, the injured party may waive the right to recover damages. In some instances, though, plaintiffs that fail to file cases within the applicable statute of limitations may nonetheless be able to proceed with their claims if they can show that the statute was tolled. In a recent opinion issued in a medical malpractice case, a New York court discussed tolling of the statute of limitations for harm caused by foreign objects left in a person after surgery. If you suffered harm due to errors committed during surgery, it is advisable to speak to a Rochester medical malpractice lawyer to determine your potential claims.
The Plaintiff’s Claims
It is reported that the plaintiff visited the emergency department of the defendant hospital when she was ten years old with complaints of abdominal pain. She was diagnosed with appendicitis and underwent an emergency appendectomy which was performed by the defendant. Fourteen years later, she instituted a medical malpractice lawsuit against the defendants, alleging that foreign objects were left inside of her body following the surgery, causing her to suffer reproductive and gastrointestinal issues, and pain. The defendants moved to have the plaintiff’s claims dismissed, arguing that she failed to pursue them within the time provided by the applicable statute of limitations.
Tolling of the Statute of Limitations in Medical Malpractice Cases
Under New York law, the statute of limitations for a medical malpractice claim is typically two years and six months from the date the cause of action accrued. There is an exception, though, for cases that arise out of the discovery that a foreign object was left in the body of the patient. In such instances, the action may be commenced within one year of the date of the discovery of the foreign object or the revelation of facts that would lead to such discovery, whichever is earlier.
To determine whether something qualifies as a foreign object, a court must consider the nature of the materials implanted in the patient and evaluate their intended function. If an object served a temporary role but was intended to be removed following a procedure, it likely is considered a foreign object. Fixation devices do not constitute foreign objects, however, even if they are placed in the wrong area. In the subject case, the court noted that the clips in question were sutures that were intended to help the plaintiff heal and constituted fixation devices. As such, the court granted the defendants’ motion.
Speak to an Experienced Rochester Medical Malpractice Lawyer
When a doctor leaves a sponge, clip, or another object inside of a person following surgery, it often constitutes grounds for a surgical malpractice claim. If you were injured due to a careless surgeon, you may be owed compensation, and you should speak to an attorney as soon as possible. The experienced medical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers can advise you of your options and help you to pursue the maximum damages recoverable under the law. You can contact us at 585-653-7343 or via our online form to set up a meeting.