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Hess v. Schwartz2/7/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
ORDERED that the motion by defendant Episcopal Health Services, Inc., s/h/a St. John's Episcopal Hospital, and the cross motion by defendant Arnold Schwartz, M.D. for summary judgment dismissing the claims against them are granted.
On September 8, 1994, plaintiff Michael Hess was admitted to St. John's Episcopal Hospital for elective surgery to remove surgical hardware that had been installed years earlier during a L3-L5 spinal fusion surgery. Defendant Arnold Schwartz, M.D., a surgeon and private attending physician at St. John's Episcopal Hospital, performed the surgery that same day. Defendant was discharged from the hospital on September 10, 1994. There is no evidence in the record regarding any post-operative visits made by plaintiff to Dr. Schwartz.
On March 16, 2004, plaintiff commenced this medical malpractice action against Dr. Schwartz and St. John's Episcopal Hospital to recover damages allegedly sustained as a result of Dr. Schwartz's failure to remove "surgical clips or clips and other objects from plaintiff's body" during the surgical procedure performed on September 8, 1994. The complaint alleges that plaintiff did not discover that "foreign objects" had been left in his body until March 21, 2003. It alleges that Dr. Schwartz was negligent in "leaving in and failing to remove surgical clips and/or other foreign objects following surgery," and that St. John's Episcopal Hospital, through its employees, was negligent in "failing to remove operative clips and permitting foreign objects to remain in plaintiff's body, in failing to properly count the clips, in failing to perform a proper pre-operative and post-operative count." The Court notes that the complaint was not verified by plaintiff, and that a certificate of merit (see, CPLR 3012-a) has not been filed by plaintiff's counsel.
Defendants now move for an order granting summary judgment in their favor and dismissing the complaint on the ground that plaintiff's medical malpractice claims are barred by the Statute of Limitations. Plaintiff failed to submit an affidavit or any documentary evidence in opposition to the motion. Instead, plaintiff's counsel submitted an affirmation arguing that the motion is premature, as he has not yet obtained copies of x-rays allegedly taken in March 2003 that show the continued presence of surgical hardware in plaintiff's spine. The affirmation further states that the attorney has been unable to locate plaintiff.
CPLR 214-a prescribes that an action for medical malpractice "must be commenced within two years and six months of the act, omission or failure complained of * * * provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonable lead to such discovery, whichever is earlier." Significantly, the statute expressly excludes "chemical compound , fixation device , prosthetic aid and device " from the definition of the term "foreign object" (CPLR 214-a; LaBarbera v New York Eye & Ear Infirmary, 91 NY2d 207, 668 NYS2d 546 ; see, Rockefeller v Moront, 81 NY2d 560, 601 NYS2d 86 ; Rodriguez v Manhattan Med. Group, 77 NY2d 217, 566 NYS2d 193 ; cf., Carmona v Lutheran Med. Ctr., 238 AD2d 535, 656 NYS2d 693 [2d Dept 1997]). The negligent failure to remove a "fixation device" from a patient's body does not transform the device into a "foreign object" (Rockefeller v Moront, supra, at 565, 60
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