Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 123-136; 137; 143-145, 146; 147-148. DECISION AND ORDER Defendants KENNETH ROSE, M.D. (DR. ROSE), and RICHMOND UNIVERSITY MEDICAL CENTER (RUMC) move to dismiss Plaintiff’s claims pursuant to CPLR §§3211 (a)(5) and 214-a, alleging that all claims asserted against them are barred by the applicable two years and six months statute of limitations. Defendants also assert various claims regarding the liability of DR. ROSE and RUMC, arguing that the medical records and deposition testimony show that the first time the drill bit in Plaintiff’s face presented an issue was after a surgery subsequent to the one performed by DR. ROSE in October of 2011. They argue that Plaintiff only began making complaints relevant to the drill bit after the procedure with co-defendant DR. DEMAS in March of 2013. However, since Defendants did not timely move for summary judgment and an extension for submission of a motion for summary judgment was denied, the merits of the claims against DR. ROSE will not be addressed in this decision. Only the statute of limitations for this action will be analyzed, focusing on the date of discovery of the foreign object. Numerous decisions in the Court of Appeals and the Second Department have relied upon CPLR §214-a in determining whether the statute of limitations had been extended in so-called “foreign object” cases. These cases have primarily dealt with analyzing the classification of the implanted material as a “foreign object,” and none have yet directly discussed the portion of the statute dealing with the discovery of the foreign object, and whether the plaintiff discovered the foreign object within a reasonable timeframe from when it was first introduced into their body. Here, the date on which Plaintiff discovered or should have discovered the foreign object is addressed. “To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the grounds that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired.” Stewart v. GDC Tower at Greystone, 138 A.D.3d 729 (2nd Dept. 2016). Defendants here have not satisfied this burden, and the motion to dismiss this action as barred by the applicable statute of limitations is denied. The statute of limitations for medical malpractice under CPLR §214-a is typically within two years and six months from the date on which the malpractice occurs. However, §214-a provides two exceptions that can extend the statute of limitations, with the “foreign object” exception being relevant to this motion. This exception states 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 such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.” Thus, the applicability of CPLR §214-a involves a two-fold test: (1) is the object in question classified as a foreign body, and (2) was the action commenced within one year of discovery of the foreign object or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. Since Defendants in this case do not oppose the classification of the drill bit as a foreign body, only the latter portion of the test will be applicable. In other words, it must be ascertained whether Plaintiff commenced their action either within one year of discovery of the foreign object or within one year from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. CPLR §214-a codified Flanagan v. Mount Eden General, the seminal case regarding the foreign body exception for medical malpractice actions. Flanagan v. Mount Eden General Hosp., 24 N.Y.2d 427 (1969). In Flanagan, plaintiff underwent surgery in June of 1958 to treat a gall bladder ailment. Id at 428. Starting in the spring of 1966, plaintiff experienced severe pain in her abdomen. Id. After consulting a doctor, plaintiff was informed on June 3, 1966, that surgical clamps used in the 1958 operation had been negligently left in her body. Id. The clamps were removed via operation on June 10, 1966. Id. Plaintiff commenced an action against both the hospital in which the 1958 gall bladder procedure was performed and the estate of the doctor who performed the operation. Id. at 428, 429. These actions were commenced against the hospital and the estate of the doctor on October 20, 1966, and November 2, 1966, respectively. Id. Plaintiff alleged that the clamps “were not discovered and could not have been discovered by the plaintiff until June of 1966.” Id at 429. (emphasis added). Defendants separately moved to dismiss the actions, claiming that they were barred by the three-year statute of limitations dictated in CPLR §214. Id. While the lower courts dismissed the claims against the defendants, the Court of Appeals reversed, holding that the foreign body left in plaintiff presented an exception to the statute of limitations. Id. at 435. The court noted that the “plaintiff’s claim does not raise questions as to credibility nor does it rest on professional diagnostic judgment or discretion” and “rests solely on the presence of a foreign object.” Id at 431. This narrow focus makes it so “the danger of belated, false or frivolous claims is eliminated,” reasoning that the foreign object “retains its identity so that a defendant’s ability to defend a ‘stale’ claim is not unduly impaired.” Id. After the codification of Flanagan under CPLR §214-a in 1975, subsequent cases have emphasized that the foreign body exception be of a limited character and to restrain its application to the limited scope presented in Flanagan. In Beary v. City of Rye, the court noted that the explicit language in CPLR 214-a “prohibiting the inclusion of chemical compounds, fixation devices and prosthetic aids from the embrace of the term ‘foreign object’” and the one-year time limit leads to the determination that “the Legislature left us no room but to conclude that it intended that Flanagan not be broadened beyond its existing confines.” Beary v. City of Rye, 44 N.Y.2d 398, 415 (1978). The court in Rockefeller v. Morant held specifically that “claims founded on negligent medical diagnosis or treatment should not be considered within the category of claims covered by the ‘foreign object’ rule because they involve the evaluation of treatment decisions made by medical professionals.” Rockefeller v. Moront, 81 N.Y.2d 560, 564 (1993). In Rodriguez v. Manhattan Medical Group P.C., the Court of Appeals refused to allow the definition of a “foreign body” to be expanded to include fixation devices deliberately implanted in the patient that no longer serve their medical purpose. Rodriguez v. Manhattan Medical Group P.C., 77 N.Y.2d 217 (1990). The court noted that applying CPLR §214-a to this case would “represent a giant step toward precisely what the statute’s drafters feared: ‘bringing all medical malpractice cases under the discovery rule.’” Id. at 224. The majority of cases involving the foreign body exception revolve around whether the object in question is classified as a foreign body, as opposed to determining whether the action was commenced in a timely fashion. However, in analyzing these cases, a pattern emerges in defining the date of discovery. In Walton v. Strong Memorial Hosp., the three-year-old plaintiff underwent an operation to correct a congenital heart malformation on May 27, 1986, at which time a portion of a catheter broke off inside of the plaintiff. Walton v. Strong Memorial Hosp., 25 N.Y.3d 554, 557-558 (2015). On March 2, 2003, plaintiff suffered a stroke, and an echocardiogram on March 3, 2003, detected masses “which were identified as possibly suture material, although clots could not be ruled out” Id. at 558. Years later, on December 2, 2008, plaintiff suffered his second heart attack of the year. Id. Plaintiff’s pacemaker was replaced on December 4, 2008, during which time an echocardiogram was performed and the presence of a foreign body was revealed. Id. Exploratory surgery was conducted on December 18, 2008, at which time the catheter was discovered. Id. Plaintiff then commenced an action on November 24, 2009, by summons and complaint against the defendant hospitals and physicians that treated him in 1986, alleging that they “negligently left a foreign body in his heart.” Id. Plaintiff specifically asserted “that he ‘could not have reasonably discovered the presence of [this] foreign body prior to December 4, 2008.’” Id. at 558, 559. While the court’s opinion primarily discusses the appropriateness of classifying the piece of catheter as a foreign body, there’s no indication that the court had reason to reject plaintiff’s contention that he could not have reasonably discovered the foreign body prior to December 4, 2008. Notably, the court did not consider the March 3, 2003 echocardiogram to be the date of reasonable discovery of the negligently introduced portion of catheter, despite the detection of “possibl[e] suture material” at that point in time. Polichetti v. Cohen presents another case where the court focused its discussion on whether the object in question was classified as a foreign object, but once again does not take issue or dispute plaintiff’s claims regarding discovery. Polichetti v. Cohen, 268 A.D.2d 417 (2nd Dept. 2000). In Polichetti, a dental file broke off in plaintiff’s mouth during a procedure that took place “sometime between June and October of 1986″, which years later led to injuries for which respondent sought damages. (Brief for plaintiff-respondent, available at 1999 WL 34592254, *4). Plaintiff alleged that he was not informed before the surgery of the possibility of infection or that the instruments could break off inside his tooth, and further alleged that he was not informed that the dental file had in fact broken off inside his tooth. Id. In terms of timeliness, plaintiff/respondent’s brief mentions that the “action was commenced within one year of discovery”, with discovery referring to the date he was examined and advised of the presence of the broken file. Id. Thus, even though plaintiff’s action was not filed until many years after the foreign object was introduced, the court did not determine that respondent had any constructive or inquiry notice that would have caused the statute of limitations to expire and concluded the action had been timely commenced. Polichetti, 268 A.D.2d at 417. The idea of a delayed date of reasonable discovery is further emphasized in Carmona v. Lutheran Medical Center, where plaintiff “frequently visited the [h]ospital complaining of pains in her chest and abdomen” for nine years following a procedure in which a surgical drain was negligently left in her body. Carmona v. Lutheran Medical Center, 238 A.D.2d 535 (2nd Dept. 1997). Even though the plaintiff was conscious of the pain resulting from the presence of a foreign object nearly a decade before it was discovered, she made continual efforts to discover the source of her injuries, leading the court to determine that the date of discovery was the date when the surgical drain was actually discovered and removed by the hospital. Id. While the Court of Appeals and the Second Department have not explicitly outlined the definition of “facts which would reasonably lead to” discovery of a foreign object, the reasoning used in the various foreign object exception cases demonstrate that Plaintiff’s commencement of this action is timely and does not exceed the limited scope of applicability dictated by Flanagan and emphasized in subsequent cases under CPLR §214-a. It is not in contention that Plaintiff’s claim in this instance is not “founded on negligent medical diagnosis or treatment,” as Rockefeller cautioned against. Rockefeller, 81 N.Y.2d at 564. Nor does this case fail to heed the warnings expressed in Rodriguez about expanding CPLR §214-a in defiance of the concerns of the statute’s drafters. Rodriguez, 77 N.Y.2d at 224. While defendant argues that the foreign object here could have been discovered at a time prior to its removal from Plaintiff’s face on February 20, 2015, CPLR §214-a does not explicitly note by whom the reasonable discovery of the foreign object is to be made. Flanagan takes note that the foreign object was “not discovered and could not have been discovered by the plaintiff” until a determined date. Flanagan, 24 N.Y.2d at 429 (emphasis added). Thus, assertions that any one of the Defendants could have detected the drill bit prior to February 20, 2015, do not support dismissal of this action for failure to commence within one year of reasonable discovery. Plaintiff did not discover the foreign object in his face and did not discover facts that would reasonably lead to such discovery until the date of his second surgery with Dr. Staffenberg on February 20, 2015. Contrary to the assertion laid out in Defendants’ Attorney Affirmation, Dr. Staffenberg did not become aware of the presence of the drill bit at the time he reviewed Plaintiff’s craniofacial CT scan on October 9, 2014, stating that he “did notice later on, but at this time, no.” (Exhibit K, p. 23). If Dr. Staffenberg did not have actual or constructive notice of the foreign object at this time, the Plaintiff surely could not have had the same. Regardless, as demonstrated in Walton by the court’s refusal to attribute the date of reasonable discovery to the possible identification of the foreign object in the 2003 echocardiogram, Dr. Staffenberg’s potential opportunity to identify the drill bit in October of 2014 is insufficient in establishing the date of reasonable discovery. Defendants cite Livsey v. Nyack Hosp., pointing towards the latter part of §214-a that focuses on “the date of discovery of facts which would reasonably lead to” discovery of the foreign object. Livsey v. Nyack Hosp., 167 A.D.3d 591 (2nd Dept. 2018). This argument is misplaced. As with the majority of foreign object cases, Livsey focuses on the classification of a negligently introduced object as a “foreign object” for purposes of §214-a applicability, with no discussion about the reasonable date of discovery. They rely on Plaintiff’s statements about experiencing a “touching inside” feeling prior to the operation on February 20, 2015, as being sufficient as a fact that would reasonably lead to discovery of the drill bit. As in Polichetti, there is no indication that Plaintiff had reason to be aware of the introduction of a foreign object into their body, or that the source of any pain or discomfort would be attributable to a negligently introduced foreign object. Plaintiff underwent multiple operations within a period of four years to treat and correct his orbital fracture, and a reasonable person could conclude that the pain they endured was the result of consistent surgery and intentionally implanted materials. Like Carmona, Plaintiff consistently sought consultation to discover the source of his discomfort. From the time of the initial injury to the removal of the foreign object after his procedure with Dr. Staffenberg in February of 2015, Plaintiff attempted to discover the source of the “weird” sensations and “touching inside” feeling he was experiencing. Therefore, Plaintiff’s inability to discover the foreign body did not result from any failing to make reasonable efforts to do so, and the date of reasonable discovery is appropriately pushed to February 20, 2015, when the drill bit was actually discovered by Dr. Staffenberg. As Defendants note in their Attorney Affirmation, “[f]ollowing plaintiff’s discharge from RUMC and the single post-operative visit to Dr. Rose, Plaintiff did not receive any care and treatment with Dr. Rose or any provider at RUMC.” Therefore, the case falls appropriately within the narrow guidelines laid out in Flanagan, as the substance of the claims against Defendants relies “solely on the presence of a foreign object” allegedly introduced by Defendants during Plaintiff’s procedure on October 4, 2011. Flanagan, 24 N.Y.2d at 435. In conclusion, the motion to dismiss the Complaint against Defendants KENNETH ROSE, M.D. and RUMC as barred by the statute of limitations is DENIED. It is noted that Defendants’ motion to dismiss any claim for negligent hiring and/or credentialing is unopposed by Plaintiff, and thus that portion of Defendants’ motion is granted. This constitutes the Decision and Order of the Court.1 Dated: July 26, 2023
