Case Types -Medical Malpractice Abuse

Nasal And Respiratory Problems Medical Malpractice

PETER LABARBERA, APPELLANT, v. NEW YORK EYE AND EAR INFIRMARY, DEFENDANT, AND JACK MARTIN SHAPIRO, RESPONDENT

91 N.Y.2d 207, 691 N.E.2d 617, 668 N.Y.S.2d 546 (1998).
February 17, 1998
1 No. 16
[98 NY Int. 0008]
Decided February 17, 1998

This appeal arises from a medical malpractice action whose viability is dependent on the application and contours of CPLR 214 a. This Court is obliged to determine whether a plastic stent, placed in plaintiff's nose for post surgery healing purposes, constitutes a "foreign object" that would avoid the bar of the statute of repose. We conclude that the device is not a foreign object within the meaning of the statute and its purpose and history, as shaped by and reflected in our governing precedents.

Supreme Court granted defendant Shapiro's motion for summary judgment and dismissed the complaint against him. The Appellate Division affirmed and granted the plaintiff leave to appeal. We now also affirm.

In May 1986, defendant Dr. Jack Martin Shapiro performed a nasal reconstruction on plaintiff at the New York Eye and Ear Infirmary. At the conclusion of the procedure, Dr. Shapiro packed the nasal cavity with Bacitracin gauze and inserted a shaped piece of plastic a silastic stent. This device was to provide temporary support, promote healing and prevent scarring. The packing material and the stent were expected to be removed by Dr. Shapiro approximately ten days after the surgery. At that time, the doctor removed only the packing material.

For the next six years, plaintiff suffered persistent nasal and respiratory problems. He consulted with Dr. Shapiro and other doctors. The last contact with Dr. Shapiro occurred in September 1988. No one detected the presence of the stent or diagnosed the cause of the plaintiff's complaints or condition. In 1992, a new doctor performed an endoscopic rhinoscopy, discovered the stent and removed it. Plaintiff's troublesome symptoms ceased. He then commenced this action in June 1993, within one year of the discovery and extraction of the stent.

Supreme Court dismissed the action against Dr. Shapiro as untimely on the ground that the "foreign object" exception to the Statute of Limitations did not apply. Under its ruling, the case was found to have been commenced more than 2 and 1/2 years beyond the uncontested last date of treatment with Dr. Shapiro in 1988, and thus was barred by the Statute of Limitations.

The Appellate Division affirmed (230 AD2d 303). The court concluded that the crucial distinction between a foreign object and a fixation device "is whether the object was deliberately left inside the patient in the first instance" (id., at 307). The court drew a definitive demarcation line that "[a] foreign object is one that the doctor 'does not intend to leave inside the body'" (id. [quoting McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 78, CPLR C214 a:3, at 603]), in contradistinction to a fixation device which "is meant to be left inside the patient" (id. [emphasis in original]). Since the stent was intended to be left, albeit temporarily, in this patient, it was classified as a "fixation device" (id., at 305).

The court added that "[w]hile this result is troublesome to the Court, we find that to hold otherwise would conflict with those cases in which the Court of Appeals has not only defined what constitutes a 'foreign object' but also consistently cautioned against judicial extension of the foreign object exception of CPLR 214 a" (id.). The court emphasized that "the express intent of the legislation was to curtail judicial expansion of the discovery rule" (id., at 306; see, Bill Jacket, Governor's Program Bill Mem, L 1975, ch 109, at 4; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C214 a:3, at 603).

Presiding Justice Murphy dissented (id., at 309). His proferred legal theory was that the instant claim "is based on a physician's failure to make certain that all temporary holding devices clamps, temporary stents, and others have been removed from the body at the close of a single albeit several stage medical proceeding" ( id., at 311).

The case presents another application of the governing statute in the light of our precedents. The "foreign object" exception to the Statute of Limitations emerged in Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427). There, we concluded that "where a foreign object [a surgical clamp] has negligently been left in the patient's body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice" (id., at 431). We noted that "foreign object" cases differ from those involving "negligent medical treatment" because the former do not create "the danger of belated, false or frivolous claims" one of the paramount goals of statutes of limitations (id., at 430 431).

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