According to the New York State Court of Appeals, yes it can. In the case Walton v. Strong Memorial Hospital, left inside a surgical patient’s heart, was a four inch long piece of catheter, which was not discovered for over 20 years. The Court decided that this qualified as a foreign object under New York’s medical malpractice statute.
In a unanimous decision, the Court revived a medical malpractice action that had been dismissed by an Appellate Division panel on the basis that the catheter was a ‘fixation device’ and had been intentionally placed inside the patient’s heart during the surgery to correct a congenital malformation.
The Appellate Division ruled against the patient, Adam Walton, because the case concerned what they deemed to be a ‘fixation device.’ Since it was considered a fixation device, Walton’s lawsuit should have been filed under CPLR 208 within 10 years of the failure by medical professionals to remove the entire catheter. Therefore the statute of limitations ended on May 30, 1996. Walton did not bring his action until November 2009.
The Court of Appeals disagreed. They stated that the proper statute of limitations in this case fell under CPLR 214-a, which applies to foreign objects left inside the patient by accident, such as sponges, scalpels, and clamps. Under CPLR-214-a, the patient has a one-year statute of limitations from the discovery of a foreign object to file a medical malpractice lawsuit. In this case Walton did not discover the catheter in his heart until December 2008 and his lawsuit was filed in November 2009, making the suit timely.
Expert testimony presented by Walton indicated that the catheter was placed in the patient to allow hospital personnel to monitor his heart’s atrial pressure immediately after the surgery. Three days after the surgery, the hospital attempted to remove the catheter, as well as wires and drainage tubes that had been placed inside Walton’s body during the operation. Hospital records show that personnel were aware that a piece of catheter may have been left inside Walton’s heart after it had broken off. Doctors decided to leave it inside the patient, deeming it harmless or because his condition was fragile and they could not risk trying to remove it.
Based on this evidence, the Court determined that the piece of catheter was obviously a foreign object, not a fixative device intended to be left inside the body under the CPLR. There was no purpose served by the catheter, and therefore it was not a fixation device.
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