A woman together with her husband sued her prior physician for alleged medical malpracticein insertion of an intrauterine device (IUD), a birth control device. The IUD was recalled at the medical level by the federal food and drug administration prior to the date of insertion. The couple also joined in this action as party opponents of both the developer and the distributor of the IUD.
Consequently, the physician moved to dismiss the legal action filed against him. The physician further contends that he inserted the IUD, prior to the recall, that regardless of when the device was inserted, the three year law of limitations has long since run in either event, since the alleged medical malpractice occurred at the time of insertion.
A New York Injury Lawyer said the woman in opposition argues that the physician never advised her at any time that the device has been recalled or should be removed. She had no way of knowing that the IUD was causing injury to her until her severe infection. According to the complaint, the physician advised the woman at the time of insertion that the IUD would be safe and effective and would be good for a period of at least 5 to 6 years. However, the woman began to experience severe radiating abdominal pain, infection, discharge and temperature, for which she was admitted to the hospital. During her hospitalization she had to undergo surgery, including a complete hysterectomy and surgical removal of the IUD, all as a result of the unsafe birth control device.
The couple have attached as an exhibit to their opposing papers the F.D.A. news release listing complications resulted from continued use of the birth control device, including the possibility that the device may have to be removed surgically, and warns that the chances of complications increase the longer the device is left in the body. A Westchester County Personal Injury Lawyer said the couple also submitted a copy of part of the pre-trial examination of the physician, in which he states that he notified some of his patients regarding the continued use of said IUD, following the F.D.A. directive, of which he was apparently aware. The woman denies receiving any such notification.
The couple’s allegations of medical malpractice in twofold includes that the physician was negligent in inserting the IUD when it had already allegedly been recalled and that he was negligent in later failing to inform the woman that the IUD had been recalled and should be removed.
Based on records, the failure to inform was a continuing omission on the part of the physician at which existed up to the time that the couple learned that the IUD had been recalled and/or should be removed. A Suffolk County Personal Injury Lawyer said the couple would have had two and one-half years from the date of the omission to bring their action. The complaint was served and the motion to dismiss the reason of action which relates to said failure to inform is denied.
With regards the original insertion of the IUD, the physician proceed under the theory that the IUD constituted a foreign object negligently inserted and/or left in the woman’s body, so that the law of limitations did not begin to run until the couple had or should have reasonably discovered the medical malpractice. Under the said theory, the applicable law of limitations would be one year from the date of reasonable discovery. There is no claim by the physician that, if the one year is applicable, the action was not brought within the permissible time period.
Consequently, the court finds the motion of the physician to dismiss is accordingly denied without prejudice to assert and prove his affirmative defense.
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