Retained Foreign Objects: A Narrow Exception To New York’s Medical Malpractice Statute Of Limitations


The statute of limitations is a procedural bar on a case.  If an action is filed after the statute of limitations has run, and the opposing party objects, the court will not hear the case on the merits.  It will be dismissed by the court as untimely and the action will be barred.  Under New York CPLR § 214-a, plaintiffs in medical malpractice actions have only two and a half (2 ½) years to commence an action from the date the “act, omission or failure complained of” occurred.  Even if the plaintiff is not aware of the medical malpractice, the statute of limitations will begin to run.

One of the exceptions to New York’s medical malpractice statute limitations is the “discovery rule.”  It is often the case that when a foreign object has been left inside a patient that it will not be discovered until after the statute of limitations period has run.  Initially, the legislature refused to adopt an exception to the 2 ½ year statute of limitations.  However, the discovery rule did emerge through common law in Flanagan v. Mount Eden General Hospital and it was eventually codified in 1975.

This rule created an alternative statute of limitations period that begins to run once the object was discovered.  Plaintiffs would now have at least one year from the date the wrong or facts that would have reasonably lead to discovery of the wrong.  Therefore, the plaintiff has 2 ½ years from the date the medical malpractice occurred or one year from the date the foreign object was discovered to file a timely medical malpractice claim, whichever is longer.

This rule was initially applied to injuries to internal organs that were discovered later, however the New York Court of Appeals adopted a more restrictive rule that applies only to “foreign objects.”  The definition of foreign object is an object that was inadvertently left inside the patient.  This definition does not apply to objects that are intentionally placed inside the patient and later forgotten to be removed, such as implanted devices or “fixation devices,” including objects like intrauterine devices, pacemakers, sutures, or other related objects.

Foreign object cases require a significant amount of research to evaluate whether the object was left inside the patient negligently or intentionally placed for good.  Unfortunately, the body of the patient rejects the item that was intentionally placed, creating a dangerous abscess or the object starts a massive and deadly infection.  If you have been the victim of a retained foreign object contact an experienced medical malpractice attorney as soon as possible to evaluate your case.

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