Treyman v Nalbandian

[*1] Treyman v Nalbandian 2011 NY Slip Op 52164(U) Decided on December 1, 2011 Supreme Court, Kings County Steinhardt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2011
Supreme Court, Kings County

Yolanda Treyman and PAUL TREYMAN, Her Husband, Plaintiff,

against

Harout Nalbandian, M.D., Defendants



13414/10

Marsha L. Steinhardt, J.

Plaintiff moves for an Order striking the answer of defendant for failure to produce Court ordered discovery; precluding defendant from presenting evidence at trial; deeming plaintiff's deposition waived; or in the alternative, striking the answer of the defendant. Defendant cross moves pursuant to CPLR 3211 (a)(5) for an order dismissing the complaint for failure to commence the action within the statue of limitations and submits opposition to plaintiff's motion.

Now, upon the foregoing and oral argument on November 17, 2011 and due deliberation had thereon, the motion of plaintiff is Denied as moot and defendant's cross motion dismissing the complaint is GRANTED.

This action, sounding in medical malpractice, was commenced by the filing of a Summons and Complaint on or about May 28, 2010. Issue was joined with the service of a verified Answer asserting, inter alia, a statute of limitations affirmative defense. The action is premised on claims that defendant failed to remove a biliary stent from Yolanda Treyman's abdomen on June 14, 2004, which was surgically implanted on May 11, 2004. Plaintiff claims that she did not learn of its continued presence in her body until June 1, 2009.

On May 11, 2004, plaintiff was admitted to Cabrini Medical Center as ordered by nonparty physician, Herbert Dyrszka, M.D. Plaintiff was symptomatic of gallstones disease and pancreatitis. Plaintiff underwent a laparoscopic cholangiopancreartography (ERCP) as part of a possible laparoscopic cholecystectomy pre-operative study. During the procedure, Dr. Dyrszka placed a biliary stent in plaintiff's abdomen. Plaintiff's hospital course was uncomplicated and she was discharged the following day. Plaintiff returned to Cabrini on June 14, 2004 for a scheduled laparoscopic cholecystectomy performed by defendant Harout Nalbandian, M.D. Pathology studies noted that tissue received were a gallbladder and stone. Plaintiff was discharged on June 15, 2004. [*2]

On or about June 1, 2009, plaintiff underwent an endoscopy during which the biliary stent was found to be still in place in her bile duct.

In opposition to defendant's cross motion, plaintiff claims that defendant has yet to provide a complete copy of her treatment records which will indicate the last date of treatment. She argues that the statute of limitations was tolled by continuous treatment which would render the action timely instituted. Billing records sent to plaintiff's medical insurance carrier are submitted by defendant and annexed to the motion. These records indicate that services were rendered on June 14, 2004 and on June 23, 2004.

Assuming that the continuous treatment toll applies, plaintiff has not offered any evidence to support a claim that the statute of limitations was tolled for a period of approximately 6 years, which would be necessary to render this 2010 action timely. Thus, this argument fails.

Plaintiff's main opposition to this motion is premised on the claim that the stent that Dr. Dyrszka placed in her bile duct is a foreign object. She claims that since the stent was discovered in 2009, the action was commenced within 1 year of discovery and therefore, timely instituted.CPLR § 214-a states, in relevant part, 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...For the purpose of this section the term "foreign object" shall not include a chemical compound, fixation device or prosthetic aid or device. (Emphasis added.)

It is well settled that "only in circumstances where a foreign object is negligently left' in the patient's body without any intended continuing treatment purpose will the discovery rule be available to delay the running of the Statute of Limitations." LaBarbera v New York Eye & Ear Infirmary, 91 NY2d 2071 (1998). Moreover, a fixation device cannot be deemed to be transformed into a foreign object when a physician negligently fails to remove it. Rodriguez v. Manhattan Med. Group, 77 NY2d 217 (1990); Kornegay v. Mt. Sinai Med. Ctr., 199 AD2d 69 (1st Dept 1993); Owen v Mackinnon, 6 AD3d 684 (2d Dept. 2004).

In this case, the stent was purposely left in plaintiff's body. It is well settled that a negligent failure to detect the continued presence of a previously inserted device, is classified as one involving misdiagnosis—a category for which the benefits of the "foreign object" discovery rule have routinely been denied. Rodriguez v. Manhattan Med. Group, supra at 223. Assuming, arguendo, that defendant committed malpractice by neglecting to remove the device, the cause of action accrued at the time of the surgery not the time that such failure was discovered. See, Rodriguez v. Manhattan Med. Group, supra. "In the final analysis, this case is no different from any other medical malpractice action in which it is claimed that a physician negligently failed to detect a condition within the patient's body requiring treatment or surgical removal." Rodriguez v Manhattan Med. Group, supra at 224.

Here, the alleged malpractice took place on June 14, 2004. As the action was commenced more that six years after the statute of limitations ran, it must be dismissed. The discovery issues which are the subject of plaintiff's motion are rendered moot by the dismissal.

This constitutes the decision, opinion and order of this court.

Enter,

[*3]

J. S. C.