Oct 21 2016

“Fixation Device” or “Foreign Object” Means You Have A Case Or Don’t

Statutes of limitations are time restrictions limiting the starting of lawsuits. A legitimate argument for having them is that over time, evidence is lost or becomes stale, and the memories of victims and witnesses fade. Thus, statutes of limitations force victims of negligence to speak now or forever hold their peace, so to speak. That would be a wonderful idea, if American consumers and patients were educated about such limitations. But they are not. And sometimes, the people on the front line protecting the rights of wronged victims–us lawyers– who absolutely need to know about them, do not.

The first thing a competent defense lawyer will do upon receiving a suit accusing his client of negligence is to check the applicable statute of limitations. Did the plaintiff file his suit in time? Because if not, that is usually the end of the matter. The plaintiff’s claim is barred forever. Sometimes the issue is not clear cut, as in the case of foreign objects left behind in one’s body by a doctor or nurse. In medical malpractice world, the usual time period that applies is 2 and one-half years from the date of the negligent medical care (NY CPLR 214-a). However, if a patient discovers, long after the initial surgery, that something was left behind and should not have been, he has one year from the time of discovering that “foreign object” to bring suit, even if the 2 and one-half year period has passed. The problem for patients making such an unpleasant discovery is this: if the thing found is considered a “fixation device,” which must have a securing or supporting role after surgery, it won’t qualify as the type of “foreign object” that allows a lawsuit within one year. If you’ve discovered it more than 2 and one-half years after the negligent surgery, you have no medical malpractice case to bring.

How do you ascertain the difference? Justice Robert Berliner, of Rockland County Supreme Court, articulated the process in Livsey v. Nyack Hospital and Rockland Thoracic and Vascular Associates, P.C., decided on October 13, 2016. He found, based on testimony from expert witnesses, that the ureteral catheter/stent left inside the patient’s body had not performed a securing or supporting role, and instead had been used as a surgical drain. Therefore, it was not a “fixation device,” and the patient’s claim survived defense counsel’s motion to dimiss, since the patient had brought his claim within one year of discovering the “foreign object.”

If the thing left behind has hurt you, what difference does it make if it had a fixative function or not? That’s a great question. I am unaware of any good reason, and suspect that it came down to some give and take between patient advocates and proponents of tort reform when the legislation was being drawn up. Either way, it is a difference that every medical malpractice attorney, on either side, in New York State, needs to know.

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