New York Court of Appeals Redefines the Foreign Object Rule in Medical Malpractice Cases

Relying on long-standing precedent, the New York Court of Appeals recently redefined what constitutes a foreign object in medical malpractice cases. The Court reversed the Appellate Division, Fourth Department , and held that a broken piece of a catheter did not meet the statutory and precedential definition of a fixation device, but was a foreign object, and thus not subjected to the fixation device statute of limitations for medical malpractice cases.

Walton v Strong Memorial Hospital (2015 NY Slip Op 04786)

Relying on long-standing precedent, the New York Court of Appeals recently redefined what constitutes a foreign object in medical malpractice cases. The Court reversed the Appellate Division, Fourth Department , and held that a broken piece of a catheter did not meet the statutory and precedential definition of a fixation device, but was a foreign object, and thus not subjected to the fixation device statute of limitations for medical malpractice cases.

When the plaintiff was three years old, he underwent surgery to correct a congenital heart malformation. The operative note stated that at the beginning of the surgery, after the incision was made, a “[p]olyvinyl catheter was placed within [plaintiff’s] left atrium for recording atrial pressure.” The note further related that, before plaintiff was released from the operating room to the surgical intensive care unit, “[p]olyvinyl catheters were placed within [plaintiff’s] left atrium and right atrium for recording atrial pressure. Myocardial pacing wires were placed upon the right atrium and right ventricle for pacing as indicated. Two pericardial drainage tubes were left[,] one anteriorly and one posteriorly. Hemostasis [i.e., stoppage of bleeding] was secured[, and t]he incision was closed . . . .”

When the catheters and other devices were removed, it was documented that there was a possibility that a portion of the left atrial line remained in the plaintiff as it broke during removal. The plaintiff was discharged with no further examination or inquiry into the matter.
The plaintiff later received a pacemaker at age 18, underwent surgery for a damaged heart valve, suffered an embolic stroke, and endured two transient ischemic attacks in one year as a result of his heart condition.

The broken piece from the catheter was discovered in the plaintiff’s heart when he was twenty-five, as a result of an echocardiogram performed after a surgery.

The plaintiff brought suit against the hospital and the doctors that performed the surgery within a year of discovering the broken catheter piece. The complaint alleged negligence and permanent injuries resulting from negligence. The defendants asserted the statute of limitations as an affirmative defense, which would have barred the action.

The defendants also argued that the broken piece of the catheter did not qualify as a “foreign object exception,” which would allow the action to be commenced within a year of discovery.

After a lengthy analysis of cases distinguishing fixation devices from foreign objects, the Court held that the broken catheter piece did not serve as a fixation device because it did not serve any purposeful function. Unlike the clamps in Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427 [1969], the catheter remained in plaintiff’s body for a few days after surgery, but not for ”postsurgery healing purposes“ as was the case with the nasal stent in LaBarbera v New York Eye & Ear Infirmary, 91 NY2d 207 at 212 [1998]. Instead, the catheter served a monitoring function. Leaving the catheter in plaintiff’s body post-surgery did not convert a surgical device into a fixation device. The fragment, of course, served no purpose and was not a fixation device.

The Court added that leaving a fixation device in the body does not necessarily transform the device into a foreign object merely because it was left behind or improperly placed. The Court concluded, however, that an item that was meant to carry out a surgical procedure and was left behind does meet the definition of a foreign object. Relying on that principle, the Court held that the catheters were not excluded from the foreign object exception because they served no purpose other than to aid in carrying out a surgical procedure.

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