Dunning v Minkowitz

[*1] Dunning v Minkowitz 2008 NY Slip Op 50202(U) [18 Misc 3d 1125(A)] Decided on February 4, 2008 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2008
Supreme Court, Richmond County

Richard Dunning, Plaintiff(s),

against

Barbara Minkowitz, M.D., a/k/a Barbara Minkowitz Israeli, Barbara Minkowitz, M.D., P.C. and Staten Island University Hospital, Defendant(s).



101318/2006

Judith N. McMahon, J.

In or around the summer of 2000, the plaintiff underwent surgery on his knees to help correct a condition known as Genu Valgum (a/k/a "knock-knees"). The procedure required that staples be placed in the plaintiff's knees. The surgery was performed by defendant Barbara Minkowitz at defendant Staten Island University Hospital (hereinafter "SIUH").

On February 20, 2002, the defendant Minkowitz again performed surgery on the plaintiff at SIUH to remove the aforementioned staples once the condition was corrected. At that time, a portion of a staple failed to be removed. This fact was realized approximately three years later, on or about September 4, 2005, after the plaintiff had complained of blisters on his legs. As a result, on or about April 18, 2006, the plaintiff commenced this action for medical malpractice against defendants Barbara Minkowitz and SIUH. At this time, the defendants are moving to dismiss the complaint on the ground that the two and one half year statute of limitations for medical malpractice actions has expired. Specifically, the defendants contend that the staple did not qualify as a foreign object and is therefore not eligible for the statute of limitations toll. In opposition, the plaintiff's contend that the staple was a foreign object and that the statute was tolled pursuant to CPLR § 214-a, until discovery of the "foreign object" on or about September 4, 2005.

CPLR § 214-a provides that

"[a]n action for medical, dental or podiatric 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 reasonably lead to such discovery, whichever is earlier"

In other words, the "foreign object" rule provides a tolling of the statute of limitations "where an object not intended to remain is negligently left in a patient's body' after the completion of a medical procedure" (Rockefeller v. Moront, 81 NY2d 560, 563-564 [1993][emphasis in original]). In determining whether an object classifies as a foreign object [*2]"the courts should consider the nature of the materials implanted in a patient, as well as their intended function" (id. at 564). Generally, it is clear that objects such as sponges or surgical clamps which are strictly intended for use during a procedure and are intended to be removed after surgery are classified as foreign objects (id.). However, where an object is intentionally implanted, even if negligently left inside, it is a "fixation device" and not subject to the foreign object toll (Newman v. Keuhnelian, 248 AD2d 258, 260 [1st Dept., 1998]; Rockefeller v. Moront, 81 NY2d at 564).

The key factor in determining whether an object classifies as a foreign object or a fixation device is "whether the object was deliberately left inside the patient in the first instance" (LaBarbera v. New York Eye and Ear Infirmary, 91 NY2d 207, 209 [1998][finding that a stint that was intentionally inserted into plaintiff's nose following nasal reconstruction surgery was a fixation device after the doctor failed to remove it during a follow-up surgery]; Ericson v. Palleshi, 23 AD3d 608, 610 [2d Dept., 2005][holding that spiral tacks left in plaintiff's abdomen were fixation devices after they were intentionally placed there during surgery]; Owen v. Mackinnon, 6 AD3d 684, 685-686 [2d Dept., 2004][finding that the doctor's negligent failure to remove an IUD device intentionally inserted into plaintiff's body was a fixation device and did not transform into a foreign object after the doctor failed to remove the device]).

Here, the defendants have established their entitlement to dismiss the complaint on the grounds that the statute of limitations has expired (CPLR § 214-a; Rockefeller v. Moront, 81 NY2d at 563). It is clear that the defendant doctor placed the staple into the plaintiff's knees for the purpose of treatment which, in accordance with well settled case law, renders the staple a fixation device (LaBarbera v. New York Eye and Ear Infirmary, 91 NY2d 207 at 208; Ericson v. Palleschi, 23 AD3d at 610). Furthermore, "fixation device[s] cannot be . . . transformed into a foreign object when a physician negligently fails to remove it" (Owen v. Mackinnon, 6 AD3d at 685-686). The crux of the matter is whether, in the first instance, the defendant doctor intentionally placed the staple in the knee, which is undisputed in this matter, classifying the staple as a fixation device and prohibiting the tolling of the statute of limitations (id.; LaBarbera v. New York Eye and Ear Infirmary, 91 NY2d 207 at 208).

In opposition, the plaintiff has failed to provide evidence establishing that the staple intentionally placed in the plaintiff's body to help correct his disorder is a foreign object. Initially, the Court notes that while plaintiff provides no binding precedent, the case law provided is distinguishable from the instant matter. All of plaintiff's cases involve dental malpractice claims resulting from cleaning files breaking off in the respective plaintiffs' root canal cavities (Kitson v. Dumanski, 14 Misc 3d 1233[A] [Suffolk Cty, 2007]; Blumenau v. Lederman, 4 Misc 3d 1012A [NY Cty., 2004][; LaSorsa v. Oelbaum, 2 Misc 3d 376 [Bronx Cty., 2003]). In each case, the defendant dentists accidentally broke off the cleaning file into the root canal cavity causing the courts to find that the file was a foreign object and subject to the tolling of the statute of limitations (Kitson v. Dumanski, 14 Misc 3d at 1233[A]; Blumenau v. Lederman, 4 Misc 3d at 1012A; LaSorsa v. Oelbaum, 2 Misc 3d at 376). There is no indication that the defendant dentists, in contrast to the instant matter, intentionally inserted the cleaning file into the plaintiffs' tooth cavities as a form of treatment, with the intent that the file remain in the cavity beyond the procedure, as is indicative of a fixation device (id.). In this case, it is undisputed that the defendant doctor intentionally inserted the staple into plaintiff's knees as a form of treatment with the intent that the staple should remain there beyond the duration of the [*3]procedure, albeit temporarily, rendering the staple a fixation device, the status of which does not change based upon the doctor's allegedly negligent failure to remove it (Owen v. Mackinnon, 6 AD3d at 685-686).

Therefore, the plaintiff's malpractice claim accrued when the defendant doctor allegedly failed to remove the staple from plaintiff's knee, on February 20, 2002, and not when the plaintiff discovered the doctors failure to remove the it. As such, the statute of limitations expired on the plaintiff's claim on or about August 20, 2004.

Accordingly, it is

ORDERED that the defendants, Barbara Minkowitz, M.D., a/k/a Barbara Minkowitz Israeli, Barbara Minkowitz, M.D., P.C., and Staten Island University Hospital's motion for summary judgment is hereby granted, and it is further,

ORDERED that the complaint is hereby dismissed, and it is further,

ORDERED that the Clerk enter judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: February 4, 2008E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court