Verdicts

'Foreign Object' Exception To Statute of Limitations Does Not Apply

A New York appeals court has held that, because a catheter left behind in the plaintiff's body must be characterized as a “fixation device” and not as a “foreign object,” any suit seeking damages for injury therefrom must be filed within the normal period authorized for bringing medical malpractice claims. Walton v. Strong Memorial Hospital, 2014 NY Slip Op 1084 (App. Div., 4th Dept. 2/14/14).

The trial court (Supreme Court, Erie County (John M. Curran, J.)), dismissed all claims seeking damages for injuries allegedly caused when a polyvinyl catheter was left behind in the then-three-year-old plaintiff's chest cavity following heart surgery. This device and others had been intended to stay in the child's body for a short time as monitoring devices; three days following surgery a follow-up procedure was performed to remove them. A nursing note made at that time indicated a catheter “possibly broke off with a portion remaining in [patient].” In 2008, when the patient had reached the age of 25, that missing piece of catheter was found, and he underwent another procedure to have it removed. The plaintiff then brought suit against the medical care providers who operated on him when he was a child. They sought and were granted dismissal of the claims for untimely filing.

New York's Appellate Division affirmed, but for different reasons than those relied upon by the trial court. “The issue before us,” stated the appeals court, “is the applicability of the foreign object exception to the medical malpractice statute of limitations.” That exception, found in NY CPLR 214-a, applies a different limitations period to injuries caused by foreign objects left behind in a patient. A “foreign object,” is defined in New York as one “negligently left in the patient's body without any intended continuing treatment purpose.” LaBarbera v. New York Eye & Ear Infirmary, 91 NY2d 207. On the other hand, an object intentionally placed in a patient's body for a continuing medical purpose is not a “foreign object,” but a “fixation device.” Rockefeller v. Moront, 81 NY2d 560.

The appeals court found that “[t]he polyvinyl catheter here was a fixation device and was not a foreign object because it was intentionally placed inside plaintiff's body to monitor atrial pressure for a few days after the surgery, i.e. , it was placed for a continuing treatment purpose.” As such, any claims for injuries caused by the catheter were subject to normal filing deadlines, not the extended deadlines applicable to injuries caused by a foreign object left behind. Therefore, the trial court properly dismissed the suit for untimely filing.

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Paternity Test Mistake

Parents and their child were not entitled to seek damages from a paternity-testing service for that laboratory's mistake, because the paternity test in question was conducted in conjunction with a court proceeding, and California's litigation privilege, codified in the Civil Code section 47(b), attaches to information obtained through that proceeding. Falcon v. Long Beach Genetics Inc., 14 C.D.O.S. 3138.

The case arose from a test the putative father took to determine his paternity of a child in 2003. The County of San Diego then commenced a paternity proceeding against the putative father. The laboratory that performed the test apparently mixed up the sample provided by the putative father and mistakenly informed him and the court that he was not the father of the child. The mistake was discovered in 2008. The mother, father and child then sought damages from the laboratory for negligently providing them and the court with the incorrect information. The defendant moved for dismissal, claiming that the information on which the plaintiffs based their claims was obtained through a court proceeding, and that it therefore could not be presented as evidence of their claims.

The section 47(b) litigation privilege states that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241. The court observed that the privilege applies to any communication: 1) made in judicial or quasi-judicial proceedings; 2) by litigants or other participants authorized by law; 3) to achieve the objects of the litigation; and 4) that has some connection or logical relation to the action. In addition, the privilege is not limited to statements made during trial, but can also extend to things done in preparation for or following such proceedings. See, e.g., Hawran v. Hixson (2012) 209 Cal.App.4th 256, 282; Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 336 (communications with some relation to an anticipated lawsuit are within the privilege). Here, the court confirmed the trial court's dismissal after finding that “the defendants' DNA test was prepared for the purpose of determining minor's paternity in connection with County's paternity proceeding, and transmitted to and used by County for that purpose.”

'Foreign Object' Exception To Statute of Limitations Does Not Apply

A New York appeals court has held that, because a catheter left behind in the plaintiff's body must be characterized as a “fixation device” and not as a “foreign object,” any suit seeking damages for injury therefrom must be filed within the normal period authorized for bringing medical malpractice claims. Walton v. Strong Memorial Hospital , 2014 NY Slip Op 1084 (App. Div., 4th Dept. 2/14/14).

The trial court (Supreme Court, Erie County (John M. Curran, J.)), dismissed all claims seeking damages for injuries allegedly caused when a polyvinyl catheter was left behind in the then-three-year-old plaintiff's chest cavity following heart surgery. This device and others had been intended to stay in the child's body for a short time as monitoring devices; three days following surgery a follow-up procedure was performed to remove them. A nursing note made at that time indicated a catheter “possibly broke off with a portion remaining in [patient].” In 2008, when the patient had reached the age of 25, that missing piece of catheter was found, and he underwent another procedure to have it removed. The plaintiff then brought suit against the medical care providers who operated on him when he was a child. They sought and were granted dismissal of the claims for untimely filing.

New York's Appellate Division affirmed, but for different reasons than those relied upon by the trial court. “The issue before us,” stated the appeals court, “is the applicability of the foreign object exception to the medical malpractice statute of limitations.” That exception, found in NY CPLR 214-a, applies a different limitations period to injuries caused by foreign objects left behind in a patient. A “foreign object,” is defined in New York as one “negligently left in the patient's body without any intended continuing treatment purpose.” LaBarbera v. New York Eye & Ear Infirmary , 91 NY2d 207. On the other hand, an object intentionally placed in a patient's body for a continuing medical purpose is not a “foreign object,” but a “fixation device.” Rockefeller v. Moront , 81 NY2d 560.

The appeals court found that “[t]he polyvinyl catheter here was a fixation device and was not a foreign object because it was intentionally placed inside plaintiff's body to monitor atrial pressure for a few days after the surgery, i.e. , it was placed for a continuing treatment purpose.” As such, any claims for injuries caused by the catheter were subject to normal filing deadlines, not the extended deadlines applicable to injuries caused by a foreign object left behind. Therefore, the trial court properly dismissed the suit for untimely filing.

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Paternity Test Mistake

Parents and their child were not entitled to seek damages from a paternity-testing service for that laboratory's mistake, because the paternity test in question was conducted in conjunction with a court proceeding, and California's litigation privilege, codified in the Civil Code section 47(b), attaches to information obtained through that proceeding. Falcon v. Long Beach Genetics Inc. , 14 C.D.O.S. 3138.

The case arose from a test the putative father took to determine his paternity of a child in 2003. The County of San Diego then commenced a paternity proceeding against the putative father. The laboratory that performed the test apparently mixed up the sample provided by the putative father and mistakenly informed him and the court that he was not the father of the child. The mistake was discovered in 2008. The mother, father and child then sought damages from the laboratory for negligently providing them and the court with the incorrect information. The defendant moved for dismissal, claiming that the information on which the plaintiffs based their claims was obtained through a court proceeding, and that it therefore could not be presented as evidence of their claims.

The section 47(b) litigation privilege states that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241. The court observed that the privilege applies to any communication: 1) made in judicial or quasi-judicial proceedings; 2) by litigants or other participants authorized by law; 3) to achieve the objects of the litigation; and 4) that has some connection or logical relation to the action. In addition, the privilege is not limited to statements made during trial, but can also extend to things done in preparation for or following such proceedings. See, e.g., Hawran v. Hixson (2012) 209 Cal.App.4th 256, 282; Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 336 (communications with some relation to an anticipated lawsuit are within the privilege). Here, the court confirmed the trial court's dismissal after finding that “the defendants' DNA test was prepared for the purpose of determining minor's paternity in connection with County's paternity proceeding, and transmitted to and used by County for that purpose.”