ADAM WALTON PLAINTIFF APPELLANT v. APPEAL NO (2014)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this medical malpractice action seeking damages for injuries he sustained that allegedly resulted from defendants' failure to remove a polyvinyl catheter from his heart after surgery.   Plaintiff underwent heart surgery when he was three years old and, during the surgery, polyvinyl catheters were placed inside plaintiff's heart to record atrial pressure.   Three days later, a follow-up procedure was performed to remove the catheters.   A nursing note indicated that a catheter “possibly broke off with a portion remaining in [patient].”   In December 2008, when plaintiff was 25 years old, an echocardiogram showed a “linear density” inside plaintiff's heart.   During a subsequent surgery, a 13–centimeter loop of plastic tubing was removed from plaintiff's heart.

We conclude that Supreme Court properly granted the motion of defendants-respondents seeking dismissal of the complaint as time-barred, but our reasoning differs from that of the court.   The issue before us is the applicability of the foreign object exception to the medical malpractice statute of limitations (see CPLR 214–a).   In granting the motion, the court determined that the polyvinyl catheter was not a fixation device, but that the catheter did not fit within the legal definition of a foreign object.   We, however, conclude that the polyvinyl catheter was a fixation device.   We therefore reject plaintiff's contention that the polyvinyl catheter was not a fixation device and therefore must be a foreign object within the meaning of CPLR 214–a.   Fixation devices are “placed in the patient with the intention that they will remain to serve some continuing treatment purpose” (Rockefeller v. Moront, 81 N.Y.2d 560, 564), while foreign objects are “negligently left in the patient's body without any intended continuing treatment purpose” (LaBarbera v New York Eye & Ear Infirmary, 91 N.Y.2d 207, 212 [internal quotation marks omitted] ).   The polyvinyl catheter here was a fixation device and was not a foreign object because it was intentionally placed inside plaintiff's body to monitor atrial pressure for a few days after the surgery, i.e., it was placed for a continuing treatment purpose.

Frances E. Cafarell

Clerk of the Court