New York Law Review

LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207 (1998): Defining ‘Foreign Object’ Exception to Medical Malpractice Statute of Limitations

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The New York Law Review

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LaBarbera v. New York Eye & Ear Infirmary, 91 N.Y.2d 207 (1998)

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A plastic stent intentionally placed in a patient’s body for a temporary, continuing treatment purpose (postsurgery healing) is not a “foreign object” under CPLR 214-a, even if negligently left in the body, thus the discovery rule does not apply to extend the statute of limitations.

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Summary

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Plaintiff sued for medical malpractice after a plastic stent, placed in his nose by Dr. Shapiro following nasal reconstruction surgery to provide support and prevent scarring, was not removed as intended. The stent remained in the plaintiff’s nose for six years, causing persistent nasal and respiratory problems until another doctor discovered and removed it. Plaintiff sued Dr. Shapiro within one year of the stent’s removal, but the lower courts dismissed the case as untimely, finding the stent was not a “foreign object” under CPLR 214-a. The New York Court of Appeals affirmed, holding that because the stent was intentionally placed for a continuing treatment purpose, it falls under the “fixation device” exclusion and does not trigger the discovery rule that would have extended the statute of limitations. The court emphasized the legislative intent to limit the “foreign object” exception.

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Facts

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In May 1986, Dr. Shapiro performed nasal reconstruction surgery on the plaintiff.r
Following the surgery, Dr. Shapiro packed the nasal cavity with gauze and inserted a plastic stent to provide temporary support, promote healing, and prevent scarring.r
Dr. Shapiro intended to remove both the packing and the stent approximately ten days after the surgery.r
He removed only the packing material at that time.r
For the next six years, the plaintiff experienced persistent nasal and respiratory issues.r
The stent was eventually discovered and removed in 1992 by another doctor during an endoscopic rhinoscopy, after which the plaintiff’s symptoms ceased.r
The last contact between the Plaintiff and Dr. Shapiro was September 1988.r

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Procedural History

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Plaintiff commenced a medical malpractice action against Dr. Shapiro in June 1993, within one year of the stent’s discovery.r
Supreme Court dismissed the action as untimely, holding that the stent was not a

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