Hess v Schwartz

[*1] Hess v Schwartz 2005 NY Slip Op 50563(U) Decided on February 7, 2005 Supreme Court, Suffolk County Costello, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 7, 2005
Supreme Court, Suffolk County

MICHAEL HESS, Plaintiff,

against

ARNOLD M. SCHWARTZ, M.D. and ST. JOHN'S EPISCOPAL HOSPITAL, Defendants.



04-7401



MOSSBERG & GLOTZER

Attorneys for Plaintiff

305 Broadway, Suite 200

New York, NY 10007

SHAUB, AHMUTY, CITRIN & SPRATT

Attorneys for Defendant Schwartz

1983 Marcus Avenue

Lake Success, NY 11042

BARTLETT, McDONOUGH, BASTONE

Attorneys for Defendant Episcopal Health 300 Old Country Road, Suite 301

Mineola, NY 11501

Ralph F. Costello, J.

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." [*2]Significantly, the statute expressly excludes "chemical compound[s], fixation device[s], [and] prosthetic aid[s] and device[s]" from the definition of the term "foreign object" (CPLR 214-a; LaBarbera v New York Eye & Ear Infirmary, 91 NY2d 207, 668 NYS2d 546 [1998]; see, Rockefeller v Moront, 81 NY2d 560, 601 NYS2d 86 [1993]; Rodriguez v Manhattan Med. Group, 77 NY2d 217, 566 NYS2d 193 [1990]; 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, 601 NYS2d 86; Rodriguez v Manhattan Med. Group, supra , at 222, 566 NYS2d 193; see, LaBarbera v New York Eye & Ear Infirmary, supra ; Owen v Mackinnon, 6 AD3d 684, 775 NYS2d 565 [2d Dept 2004]; Newman v Keuhnelian, 248 AD2d 258, 670 NYS2d 431 [1st Dept], lv denied 92 NY2d 804, 677 NYS2d 779 [1998]).

Further, under the "continuous treatment" doctrine, the 2½-year statute of limitations period for a medical malpractice claim does not begin to run until after the patient's last treatment, "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the original condition or complaint" (Borgia v City of New York, 12 NY2d 151, 155, 237 NYS2d 319 [1962]; see, Young v New York City Health & Hosps. Corp., 91 NY2d 291, 670 NYS2d 169 [1998]; McPherson v Abraham, __ AD3d __, 787 NYS2d 69 [2d Dept 2004]). Essential to the application of this doctrine is that a course of treatment was established by the physician with respect to the condition that gives rise to the cause of action (Nykorchuck v Henriques, 78 NY2d 255, 258-259, 573 NYS2d 434 [1991]; see, Young v New York City Health & Hosps. Corp., supra ; Massie v Crawford, 78 NY2d 516, 577 NYS2d 223 [1991]).

Defendants established their prima facie right to summary judgment dismissing the claims against them by demonstrating that plaintiff commenced this action more than 2½ years after the alleged negligent acts (see, Cox v Kingsboro Med. Group, 88 NY2d 904, 646 NYS2d 659 [1996]). The burden, therefore, shifted to plaintiff to raise an issue of fact as to either the "foreign object" exception or the "continuous treatment" doctrine (see, Cox v Kingsboro Med. Group, supra ; Massie v Crawford, supra ; Doyaga v Columbia Presbyterian Med. Ctr., 307 AD2d 333, 762 NYS2d 636 [2d Dept 2003]). Plaintiff failed to submit any admissible evidence that raises an issue as to whether a "foreign object" was left in plaintiff's body following the September 1994 surgery, or whether there was a course of continuing treatment provided by defendants through at least September 16, 2002 (see, LaBarbera v New York Eye & Ear Infirmary, supra ; McPherson v Abraham, supra ; Evans v Ginsberg, 292 AD2d 566, 739 NYS2d 429 [2d Dept 2002]; Delaney v Champlain Val. Physicians Hosp. Med. Ctr., 232 AD2d 840, 648 NYS2d 761 [3d Dept 1996]; cf., Cavaluzzi v Beyers, 306 AD2d 429, 761 NYS2d 290 [2d Dept 2003]; Couch v County of Suffolk, 296 AD2d 194, 746 NYS2d 187 [2d Dept 2002]).

Finally, absent an affidavit from plaintiff demonstrating that facts necessary to oppose the motion exist but can not be stated without obtaining discovery from defendants, the court refuses to deny the motion pursuant to CPLR 3212(f) (see, Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 462 NYS2d 438 [1983]; Spatola v Gelco Corp., 5 AD3d 469, 773 NYS2d 101 [2d [*3]Dept 2004]; Karakostas v Avis Rent A Car Sys., 301 AD2d 632, 756 NYS2d 61 [2d Dept 2003]). The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient to deny motion for summary judgment (see, Neryaev v Solon, 6 AD3d 510, 775 NYS2d 348 [2d Dept 2004]; David B. v Millar, 2 AD3d 763, 769 NYS2d 731 [2d Dept 2003]; Kershis v City of New York, 303 AD2d 643, 756 NYS2d 786 [2d Dept 2003]).

Accordingly, defendants' motions for summary judgment dismissing the complaint against them are granted.

Submit judgment.

Dated: February 7, 2005

J.S.C.