In 1980, plaintiff had a copper 7 (CU-7) IUD inserted into her uterus by a physician who is not a party to the action. In January 1982, plaintiff came under the care of defendant Medical Group (“Medical Group”). Later that year, plaintiff and her husband decided to have the IUD removed so that they could have children; plaintiff stated that she wanted to give her son, a brother or a sister.
A New York Injury Lawyer said that on or about 5 November 1982, plaintiff was examined by defendant, an employee of The Medical Group. The defendant conducted an internal examination of plaintiff and, when he did not detect the IUD, ordered x-rays of plaintiff’s lower abdomen. The defendant reported, after the x-ray was conducted, that no intrauterine device is noted in the central portion of the pelvic cavity.
On 17 December 1982, plaintiff returned to the Medical Group and was informed by defendant that no IUD was detected by the x-rays and that she could attempt to become pregnant. The records of the Medical Group for that date bore the notation, “no evidence of IUD in pelvis or abdomen. Plan will attempt pregnancy.” Although plaintiff tried to conceive, her efforts were fruitless.
In April 1986, plaintiff began to experience heavy, intermittent vaginal bleeding, which continued for several months.
On 24 July 1986, plaintiff sought medical treatment from another doctor, who performed a sonogram. The sonogram revealed that the subject IUD was not only present, but was, in fact, embedded in the wall of plaintiff’s uterus. Plaintiff had to be admitted to a Hospital for surgical removal of the IUD. Among the post-operative findings was the notation that no string from the IUD was visible in the cervix.
Seven months later, plaintiff commenced a medical malpracticeaction; a personal injury action for the injuries suffered.
Defendants asserted the affirmative defense that the action was not brought within the applicable statute of limitations.
Plaintiffs moved to strike the affirmative defense raised.
Defendants then cross-moved for a dismissal of the action on the ground of untimely action; filed after the statute of limitations ran.
A Nassau County Peronal Injury Lawyer said that although the IAS court granted defendants’ cross-motion for dismissal, it unequivocally acknowledged, “it’s true that plaintiff had no way of knowing the IUD was there until five years later when she began to have some physical problems and then a sonogram revealed the device. The court added that the only basis upon which it was dismissing plaintiffs’ action, absent a First Department ruling, was its belief that it was constrained to follow the ruling of a sister Appellate Division which has ruled on the subject, referring to the Second Department decision.
The instant appeal followed.
While there is respectable authority on the subject matter of the case, the court is not bound thereby, and chooses not to follow it since accrual of the Statute of Limitations should not depend on the chance circumstance that the malpractice alleged happens to involve an unwanted or unneeded fixation device.
Suppose Dr. A examines a patient and negligently fails to discover a malignant tumor or brain injury. Under CPLR 214-a, his liability for that mistaken diagnosis would be barred upon the expiration of two years and six months measured from the time of the misdiagnosis. A Manhattan Personal Injury Lawyer said suppose further, in an adjacent examination room, Dr. B negligently fails to discover an IUD device previously inserted in the patient several years earlier by another doctor.
As the court sees it, the negligence of both the aforesaid doctors is the same, namely, one of misdiagnosis, and ought to be treated the same, notwithstanding that the IUD might in common parlance be considered “foreign” to the body and the tumor.
Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so, but not apply when a doctor negligently fails to remove a tumor after undertaking to do so?
Such cases, all decided by the Second Department, are not easy to reconcile. In creating the foreign object exception to the general time of commission accrual rule, expressly excluded from the scope of the exception claims implicating professional diagnostic judgment or discretion. Such being the nature of the alleged malpractice here, the claim does not fit within the exception.
Whether the exception, narrow as it is, strikes a proper balance between the patient’s interest in compensation and the doctor’s interest in repose is essentially a question of public policy inappropriate for consideration by an intermediate appellate court; grim logic, though it may be to say that a patient must commence an action before she even knows she has one to commence, it is not for us to depart further from the traditional view of the Statute of Limitations. All the more should we hesitate to depart further from the traditional view considering that the Court of Appeals has twice taken occasion to say that the Legislature, in codifying the foreign object exception in the manner in which it did, has expressed the intent that it must not be broadened beyond its limits.
Accordingly, the order which dismissed the action as barred by the Statute of Limitations is affirmed.
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