A recent court decision highlights the careful distinctions courts make in interpreting the New York medical malpractice statute of limitations. In Leace v. Kohlroser, the plaintiff was treated by a gastroenterologist for Crohn’s disease. She underwent a capsule endoscopy under his care, and he advised her to swallow a capsule camera. The capsule camera transmitted images during a procedure, and the camera was supposed to pass through her in the normal course of digestion. Approximately a year later, the plaintiff received a CAT scan that revealed that the camera was still inside her intestines. The plaintiff alleged that she was never advised of the results of this CAT scan. Two years later, another CAT scan revealed the continued presence of the camera inside her intestines, and the camera had to be surgically removed.
The plaintiff filed a lawsuit against her doctors and his medical group for medical malpractice and lack of informed consent. The defendants moved to dismiss her lawsuit, asserting that it was time-barred under the 30-month statute of limitations under New York law. The trial court granted the defendants’ motion, and the plaintiff appealed the decision.
Although the general rule is that a medical malpractice lawsuit must be commenced within 30 months from when the medical error occurred, an action based upon the discovery of a foreign object allows the patient to file a lawsuit within one year of the date of discovery. However, the relevant New York statute draws a distinction between a “fixation device” and a “foreign object.” The extension does not apply to a “fixation device.” Case law has interpreted the meaning of “foreign object” to include items like surgical clamps or paraphernalia (e.g., scalpels, sponges, drains) inserted into a patient’s body to carry out a surgical procedure.
The court reasoned that the camera was used as a diagnostic tool to visualize the condition of the plaintiff’s intestines. The court found that it was not introduced into the plaintiff’s body in the course of a surgical procedure. In the court’s view, the patient voluntarily swallowed the camera with the expectation that it would travel through her digestive system until it passed in the regular course of digestion. Therefore, the camera, according to the court, was not a “foreign object,” and the statute of limitations had expired on any potential claim. The court of appeals affirmed the trial court’s ruling.
If you were injured during surgery, or if a loved one was harmed or killed while undergoing surgery, you may be entitled to significant compensation. Call 315-479-9000 to schedule a free consultation to learn how we can help. To speak with a Syracuse surgical malpractice attorney about your case, call DeFrancisco & Falgiatano Personal Injury Lawyers at 315-479-9000 or contact us online. We offer evening and weekend appointments as well as home and hospital visits.
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