In New York, an injured patient has 30 months to bring a lawsuit for alleged medical malpractice. However, in the case of a foreign object, the time limit is one year after discovery of the foreign object. The statute CPLR 214-a expressly excludes “a chemical compound, fixation device, or prosthetic aid or device.”  In Walton v. Strong Mem’l Hosp., 2015 N.Y. Slip Op. 04786 (June 10, 2015), a catheter  was  intentionally  placed in the plaintiff’s heart during surgery when he was three years old in 1986. A few days later, the catheter was removed, but a fragment was inadvertently left behind. Fast forward 20 years later, the plaintiff  suffered an embolic stroke and a transient ischemic attack following  the insertion of a pacemaker and replacement of a damaged heart valve, and the catheter fragment was discovered during a procedure to replace the battery in the plaintiff’s pacemaker.  

The plaintiff alleged medical malpractice arising out of the alleged negligence in leaving the catheter fragment as a foreign body in his heart. The defendants moved to dismiss the lawsuit, contending that the plaintiff was too late in bring his claim because it was beyond the 10-year limit on an infant’s medical malpractice claim limitation – that period expired in 1996. In addition, the defendants argued that the catheter fragment was not a foreign object.  

The critical question became whether the catheter fragment was a foreign object or a fixation device. Traditionally, a foreign object has been defined as one “negligently ‘left’ in the patient’s body without any intended continuing treatment purpose.” See Rockefeller v. Moront, 81 N.Y.2d 560, 566 (1993). The trial court dismissed the lawsuit on the grounds that the catheter fragment was not a foreign object because it was initially left in the plaintiff’s body intentionally with a continuing medical purpose. The appellate court agreed with the trial court but ruled that the catheter was a fixation device, since it was deliberately inserted into the plaintiff’s heart for the purpose of monitoring atrial pressure. 

The Court of Appeals, which is the highest court in New York state, considered the following when reviewing this case:

1. Tangible items (like a clamp) used to facilitate surgery are foreign objects if left behind in a patient’s body
2. A fixation device (like a suture) does not transform into a foreign object if not removed in a timely fashion
3. A fixation device does not become a foreign object if inserted in the wrong place
4. A fixation device not removed in a timely fashion is akin to misdiagnosis and a fixation device improperly placed is akin to negligent medical treatment
5. Was the catheter truly a fixation device like a suture?

Considering the above, the Court of Appeals, unanimously reversed the appellate court and ruled the catheter fragment that had been left in the plaintiff was a foreign object. The judges decided that because, similar to a clamp, a scalpel, or a sponge, was introduced solely to facilitate surgery and performed no securing or supporting role during or after surgery.  

Learn More – Primary Sources:

NY State Law Reporting Bureau: Walton vs Strong Mem. Hosp. (2015) 

Rockefeller v. Moront, 81 N.Y.2d 560, 566 (1993)

Management of surgical instruments with radio frequency identification tags