Leave Granted to Determine Whether Catheter Was a Foreign Object or Fixation Device

The Court of Appeals has granted leave to appeal in Walton v. Strong Memorial Hospital, a case involving the applicability of the foreign object exception to the medical malpractice statute of limitations.  The plaintiff, now 25, discovered that part of a polyvinyl catheter remained in his heart after heart surgery he had when he was three years old. That polyvinyl catheter had been used to monitor atrial pressure during and after the heart surgery. Three days following that surgery, however, doctors performed a second procedure to remove the polyvinyl catheter.  A portion of the catheter broke off and was not retrieved. 

It is undisputed that the plaintiff’s action was beyond the two year, six month statute of limitations for medical malpractice actions generally, and beyond the 10-year cap for tolling an infant’s malpractice claim. Thus, the plaintiff’s action would be timely only if it satisfied the foreign objects exception to the statute of limitations. Under the foreign objects exception, the plaintiff may commence an action “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.” Notably, the tolling provision applies only to foreign objects and not to fixation devices or other listed exclusions.

The Appellate Division, Fourth Department, concluded that the polyvinyl catheter was a “fixation device” because it was “intentionally placed inside plaintiff’s body to monitor atrial pressure for a few days after the surgery.”