MARK ROCKEFELLER ET AL., RESPONDENTS, v. GEORGE P. MORONT ET AL., APPELLANTS.
81 N.Y.2d 560, 618 N.E.2d 119, 601 N.Y.S.2d 86 (1993).
July 6, 1993
3 No. 148 (1993 NY int. 144)
Decided July 6, 1993
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Arete K. Sprio, for Appellant hospital.
James A. Resila, for Appellant Moront.
Michael J. Hutter, for Respondents.
TITONE, J.:
In this medical malpractice action, we are called upon to determine
whether a suture that was improperly affixed to an organ not involved
in the operation for which plaintiff sought medical treatment
constitutes a "foreign object" sufficient to delay accrual of the
governing Statute of Limitations until the date that the object's
presence was or reasonably should have been discovered. Because the
misplaced suture is not a "foreign object" within the rule of Flanagan
v Mount Eden Gen. Hosp. (24 NY2d 427), and is more readily
characterized as a "fixation device" excluded from the benefit of that
rule, we conclude that the Appellate Division erred in denying
defendants' respective motions to dismiss the complaint as
time-barred.
In June 1971, defendant George Moront, a licensed physician, performed
left hernia repair surgery at defendant Columbia Memorial Hospital on
plaintiff Mark Rockefeller, who was then four years old. Seventeen
years later, when plaintiff's wife was unable to conceive, plaintiff
underwent a medical examination which revealed that his semen
contained no sperm. Exploratory surgery performed on plaintiff in
November 1989 revealed that a suture had been permanently placed on
his vas deferens, most likely during the 1971 herniorrhaphy.
Plaintiff instituted this medical malpractice action against
defendants Moront and Columbia Memorial in October 1990, seeking
damages for his irreversible sterility and emotional distress, as well
as derivative damages on his wife's behalf.(n 1) Supreme Court
denied defendants' respective motions to dismiss on Statute of
Limitations grounds and granted plaintiff's cross motion to dismiss
SNIPPETS:
In this medical malpractice action, we are called upon to determine whether a suture that was
, and is more readily characterized as a "fixation device" excluded from the benefit of that
In June 1971, defendant George Moront, a licensed physician, performed left hernia repair
The Appellate Division modified, by holding that the dismissal of the Statute of Limitations
For the following reasons, we now reverse.
Group, 77 NY2d 217, 220).
The "foreign object" rule, first enunciated by this Court in Flanagan (supra 24 NY2d 427),
the applicable limitations period will not commence to run "until the patient could have
The principles enunciated in Flanagan, which have since been codified (see CPLR 214-a),2 make
In determining whether an object which remains in the patient constitutes a "foreign object,"
By contrast, items which are placed in the patient with the intention that they will remain
That "fixation devices" were considered exempt from coverage under the judicially-created
R 214-a" (130 AD2d 632, 632, affd on mem below 71 NY2d 838; accord Goldsmith v Howmedica, Inc., 67
a claim based on a medical professional's deliberate implantation of a "fixation device" in
|
