Retained Foreign Objects Part II
CPLR 214(a) and the Statute of Limitations in Medical Malpractice Claims
By Kelsey O'Brien
Statutes of limitations are timeframes by which a lawsuit must be initiated. Generally, statutes of limitations balance the rights of individuals seeking redress with the need to preserve the integrity of evidence and safeguard against the unfair perpetual threat of legal action.
In New York State, the statute of limitations by which a medical malpractice lawsuit must be timely commenced is governed by CPLR 214(a). Most medical malpractice claims must be filed two years and six months from the date of the alleged negligence. There are numerous and significant exceptions to this timeframe, one of which is when a foreign object has been left inside a patient's body due to alleged medical malpractice.
Overview of CPLR 214-a
CPLR 214-a provides—in pertinent part—as follows: “where the action 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.”
Discovery Rule and Its Impact on Retained Foreign Object Cases
In most medical malpractice cases involving retained foreign objects, the foreign object is discovered a while—maybe years— after the procedure during which it was left behind. As such, Courts have recognized the standard two-year and six-month statute of limitations may not be fair or appropriate in pursuit of an equitable application of the law.
The discovery rule in New York provides that the statute of limitations does not begin to run until the plaintiff either discovers the foreign object, or reasonably should have discovered it—whichever comes first.
In cases involving a foreign object left in the body, the plaintiff may not realize the error until he or she experiences symptoms like pain, infection, or a myriad of other health issues, or until diagnostic testing uncovers the foreign body. For example, if a patient underwent surgery and a sponge was accidentally left behind intraoperatively, the statute of limitations would not begin to run until the patient either develops symptoms that would reasonably have led to the discovery of the sponge, or undergoes diagnostic imaging or subsequent surgery that reveals the sponge.
Notably, the foreign object rule has been held to apply solely to medical malpractice claims against those parties responsible for placing the foreign object in a patient’s body. The rule does not apply to subsequent claims involving a failure to detect the presence of the foreign object. See, Chisolm v. New York Hosp., 181 Misc. 2d 68, 694 N.Y.S.2d 561, 565 (Sup. Ct. Bronx Co. 1999).
Reasonable Discovery of a Foreign Object
The majority of New York State cases—of all Court levels— involving the foreign object exception concern inquiry as to whether the object in question is classified as a foreign body, as opposed to determining whether the action was commenced in a timely fashion.
A valuable Decision on this subject was issued by Hon. Consuelo Mallafre Melendez, J.S.C. in the matter of Sogojeva v Staffenberg, 80 Misc 3d 536, 537 (Sup. Ct., Kings County 2023).1 In Sogojeva, the plaintiff underwent a procedure to correct an orbital fracture on October 4, 2011, during which time a drill-bit was purportedly left behind in his face.
The Court noted that post-operatively, the plaintiff “attempted to discover the source of the ‘weird’ sensations and ‘touching inside’ feeling he was experiencing.” These “attempts” included—but were not limited to— craniofacial CT scan and unspecified surgeries. The drill-bit was not explicitly appreciated by physicians interpreting the radiographic imaging or performing the interval procedures.2 On February 20, 2015, the plaintiff underwent additional surgery at which time the retained drill-bit was discovered and removed. The action was commenced on February 11, 2016.
Defendants in Sogojeva maintained that the action was untimely as plaintiff had complaints and/or pain in the area of the drill-bit, and therefore had reason to be aware of the retained foreign object prior to February 20, 2015.
Ultimately, the Court held that because the plaintiff consistently sought consultation—from the time of the initial injury until the removal of the drill-bit— to discover the source of this discomfort, that date of reasonable discovery was February 20, 2015, when the drill-bit was actually discovered by the surgeon. The Court further noted that because the plaintiff underwent multiple operations within a period of four years to treat and correct an orbital fracture, and a reasonable person could conclude that the pain they endured was the result of consistent surgery and intentionally implanted materials. Therefore, the action was commenced timely, albeit with only nine days remaining as to the statute of limitations.
Procedural Application
A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the grounds that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff: to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations; to raise a question of fact as to whether such an exception applies, or; to otherwise establish grounds for a timely cause of action.
If you have questions about retained foreign object cases or other facets of medical malpractice law, please contact Kelsey O’Brien.
This is part of a two-part blog series. To read the first part, which provides an overview of retained foreign objects, please click here.
Footnotes
- Notices of Appeal were filed by Defendants with the 2nd Department; however, these Appeals were never perfected.
- The Court noted that the “potential opportunity” of the physicians to identify the drill-bit at the time of the CT scan (or interval surgeries) was insufficient in establishing the date of reasonable discovery; specifically, because [the physicians] “did not have actual or constructive notice [at the time of the CT scan or surgeries], the Plaintiff surely could not have had the same.” See, Id. at 921
