Piece of Catheter Left in Medical Malpractice Claimant's Chest Not a Foreign Object; Case Dismissed as Too Late.

Court: Supreme Court, Erie County, New York

Case: Walton v. Strong Memorial Hospital

Date: Aug. 23, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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Facts: This is a medical malpractice case.

In 1986, the three year-old plaintiff had heart surgery. As part of the procedure, wire and tubes were left in his body to allow monitoring of his functions. They were scheduled to be removed three days later. It appears that one tube may have broken off and not been completely removed.

In 2003, at the age of 19, plaintiff Walton sought hospital care and was diagnosed with an embolism that caused a stroke and brain injury, apparently from some matter left in his chest.

In 2008 he had heart surgery, and a five-inch piece of catheter tubing from 1986 was found and removed.

Plaintiff commenced his lawsuit for medical malpractice in November, 2009, within one year after he discovered the piece of catheter tubing left inside of him. He claims that malpractice was committed against him in 1986, when the tubing was left in his heart. And that this caused his stroke and brain damage.

The issue in this case is when did plaintiff's time to sue for this medical malpractice start and end -- is he too late in coming to court?

The Law: The rule is that a plaintiff may sue for medical malpractice within one year of discovery of a "foreign object" left in his body.

The defense claims that the tubing was a "fixation device" and an exception to the foreign object rule of discovery.

This court rules that a device is not a "fixation device" but is also not a "foreign object" if deliberately left inside the patient. Case dismissed on summary judgment.

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