        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

182
CA 13-00841
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


ADAM L. WALTON, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

STRONG MEMORIAL HOSPITAL, UNIVERSITY OF
ROCHESTER MEDICAL CENTER, CHILDREN’S HOSPITAL
AT STRONG, SCOTT STEWART, M.D., JAMES MANNING,
M.D., PETER KNIGHT, M.D., J.A. JANUS, M.D.,
GREGORY APPENFELLER, M.D., DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.
(APPEAL NO. 2.)


BROWN CHIARI LLP, LANCASTER, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO
(EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.

MARTIN CLEARWATER & BELL LLP, NEW YORK CITY (BARBARA D. GOLDBERG OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (John M.
Curran, J.), entered December 5, 2012. The judgment dismissed all
claims against defendants-respondents with prejudice.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages for injuries he sustained that allegedly resulted from
defendants’ failure to remove a polyvinyl catheter from his heart
after surgery. Plaintiff underwent heart surgery when he was three
years old and, during the surgery, polyvinyl catheters were placed
inside plaintiff’s heart to record atrial pressure. Three days later,
a follow-up procedure was performed to remove the catheters. A
nursing note indicated that a catheter “possibly broke off with a
portion remaining in [patient].” In December 2008, when plaintiff was
25 years old, an echocardiogram showed a “linear density” inside
plaintiff’s heart. During a subsequent surgery, a 13-centimeter loop
of plastic tubing was removed from plaintiff’s heart.

     We conclude that Supreme Court properly granted the motion of
defendants-respondents seeking dismissal of the complaint as time-
barred, but our reasoning differs from that of the court. The issue
before us is the applicability of the foreign object exception to the
medical malpractice statute of limitations (see CPLR 214-a). In
granting the motion, the court determined that the polyvinyl catheter
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                                                         CA 13-00841

was not a fixation device, but that the catheter did not fit within
the legal definition of a foreign object. We, however, conclude that
the polyvinyl catheter was a fixation device. We therefore reject
plaintiff’s contention that the polyvinyl catheter was not a fixation
device and therefore must be a foreign object within the meaning of
CPLR 214-a. Fixation devices are “placed in the patient with the
intention that they will remain to serve some continuing treatment
purpose” (Rockefeller v Moront, 81 NY2d 560, 564), while foreign
objects are “negligently left in the patient’s body without any
intended continuing treatment purpose” (LaBarbera v New York Eye & Ear
Infirmary, 91 NY2d 207, 212 [internal quotation marks omitted]). The
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.




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
