A “foreign object” can be surgical clamps, scalpels, needles or sponges that are normally intended to be removed after the procedure’s completion. Under New York law, a claim based upon the discovery of a foreign object must be brought within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.Unlike a foreign object, a fixation device is placed in the patient with the intention that they will remain to serve some continuing treatment purpose.  A fixation device may be a catheter, clips, sutures, pacemaker or any medical device that is intended to remain in the patient’s body for the purpose of continuing treatment.  Chemical compounds, fixation devices and prosthetic aids or devices are not classified as foreign objects.  A fixation device does not become a foreign object if inserted in the wrong place in the body, and the alleged failure to timely remove a fixation device does not transform it into a foreign object.

In 2015, New York’s Court of Appeals was asked to decide whether a broken fragment of a heart catheter constituted a foreign object in Walton v. Strong Memorial Hospital, 25 N.Y.3d 554 (2015). The catheter had been inserted into a three-year old infant’s heart during heart surgery in 1986 and was discovered 22 years later in 2008, when a fragment of the broken catheter was discovered. The question raised on appeal was whether a broken fragment of a catheter constitutes a foreign object.

The Court of Appeals in Walton focused on the “intended function” of the object, namely, whether the catheter served a continuing treatment purpose. In overruling the lower courts, the Court of Appeals held that broken fragment of a catheter was a foreign object.  The court noted that the plaintiff “left the hospital after an operation with a therapeutically useless and potentially dangerous surgical paraphernalia lodged in his body”.

For purpose of defining a “foreign object”, the focus is whether the object was intended to remain in the patient’s body for a continuing treatment purpose following the surgery. If so, the object will not qualify as a foreign object.

If you have questions about a foreign object, we will be happy to speak with you. You can call us at 845-802-0047.