Flanagan v. Mount Eden General Hospital

Citation248 N.E.2d 871,24 N.Y.2d 427,301 N.Y.S.2d 23
Parties, 248 N.E.2d 871 Josephine FLANAGAN, Appellant, v. MOUNT EDEN GENERAL HOSPITAL et al., Respondents.
Decision Date17 April 1969
CourtNew York Court of Appeals

Joseph P. Napoli and Harry H. Lipsig, New York City, for appellant.

William F. McNulty, New York City, for Mount Eden General Hospital, respondent.

George van Setter, New York City, for Sarah Lee Ancell and another, respondents.


Josephine Flanagan, in June of 1958, was under the care of Dr. Max Eisenstat for a gall bladder ailment. Dr. Eisenstat determined that an operation was necessary, and the plaintiff entered Mount Eden General Hospital for that purpose. On July 14, 1958 the operation was performed. During the course of the operation surgical clamps were inserted in the plaintiff's body.

In the spring of 1966 the plaintiff experienced severe pain in the region of her abdomen. She consulted a doctor. He advised her on June 3, 1966 that surgical clamps were discovered by X-ray analysis to be lodged in her body. On June 10, 1966 an operation was performed to remove the clamps.

An action was commenced on October 20, 1966 by the service of a summons and complaint upon the defendant, Mount Eden General Hospital * 25 and by the service of a summons and complaint upon the estate of the doctor on November 2, 1966. The complaint alleged that the clamps were carelessly and negligently allowed to remain within her body after the gall bladder operation and that they were not discovered or could not have been discovered by the plaintiff until June of 1966.

Both defendants (the executors of the Eisenstat estate and the hospital) separately moved to dismiss the plaintiff's complaint on the ground that the Statute of Limitations barred the institution of the action. Special Term dismissed the complaint as to each defendant. The Appellate Division, First Department, 29 A.D.2d 920, 289 N.Y.S.2d 147, unanimously affirmed without opinion. We granted leave to appeal.

This appeal presents the narrow question: when should the Statute of Limitations begin to run in a foreign object medical malpractice case?

At common law there was no fixed time for the bringing of an action. Personal actions were merely confined to the joint lifetimes of the parties. The Statute of Limitations was enacted to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action. The statutes embody an important policy of giving repose to human affairs. (Schwartz v. Heyden Newport Chem. Co., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, 4 A.L.R.3d 814.) 'The primary consideration underlying such legislation is undoubtedly one of fairness to the defendant. There comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not to be called on to resist a claim where the 'evidence has been lost, memories have faded, and witnesses have disappeared. " (Developments in the Law Statutes of Limitations, 63 Harv.L.Rev. 1177, 1185.)

The Supreme Court has noted that Statutes of Limitation 'are founded upon the general experience of mankind that claims, which are valid, are not usually allowed to remain neglected. The lapse of years without any attempt to enforce a demand creates, therefore, a presumption against its original validity, or that it has ceased to subsist. This presumption is made by these statutes a positive bar; and they thus become statutes of repose, protecting parties from the prosecution of stale claims, when, by loss of evidence from death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth.' (Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 390, 7 Wall. 386, 19 L.Ed.2d 257.)

In 1930 we affirmed, without opinion, a decision of the Appellate Division in which it held that in a foreign object medical malpractice case the Statute of Limitations begins to run from the commission of the act (Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529, affd. 254 N.Y 620, 173 N.E. 892). At the time we considered Conklin no other jurisdiction had a contrary rule.

Just recently in Schwartz v. Heyden Newport Chem. Co. (12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, supra) we had an opportunity to review when the Statute of Limitations should run for medical malpractice treatment cases. In Schwartz, unlike the Conklin case, we were confronted with a plaintiff who alleged that a chemical preparation manufactured by the defendant, which was injected into the plaintiff's sinus, in order for his sinus to be X-rayed, caused a carcinoma which required the removal of an eye. He instituted an action claiming the medication was negligently prepared. We held that the cause of action for the purpose of the Statute of Limitations accrued at the time that the chemical was injected into the plaintiff's body.

Our decision in Schwartz did not involve review of the precise issue presented by this appeal. A comparison of the alleged medical malpractice in Schwartz and that presented by this appeal points to an obvious distinction which is compatible with the underlying purpose of the Statute of Limitations and consistent with the rationale of Schwartz.

It is clear now that a fundamental difference exists, for the purpose of the Statute of Limitations, between negligent medical treatment and medication cases and cases involving negligent malpractice of physicians or hospitals in which a foreign object is left in a patient's body. In the latter no claim can be made that the patient's action may be feigned or frivolous. In addition, there is no possible causal break between the negligence of the doctor or hospital and the patient's injury.

The so-called discovery rule employed in foreign object medical malpractice cases is in compatible harmoney with the purpose for which Statutes of Limitation were enacted and strikes a fair balance in the field of medical malpractice. The unsoundness of the traditional rule, as applied in the case where an object is discovered in the plaintiff's body, is patent. 'It simply places an undue strain upon common sense, realty, logic and simple justice to say that a cause of action had 'accrued' to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the (operation)'. (Morgan v. Grace Hosp., 149 W.Va. 783, 792, 144 S.E.2d 156, 161.)

In the case before us, the danger of belated, false or frivolous claims is eliminated. In addition, plaintiff's claim does not raise questions as to credibility nor does it rest on professional diagnostic judgment or discretion. It rests solely on the presence of a foreign object within her abdomen.

The policy of insulating defendants from the burden of defending stale claims brought by a party who, with reasonable diligence, could have instituted the action more expeditiously is not a convincing justification for the harsh consequences resulting from applying the same concept of accrual in foreign object cases as is applied in medical treatment cases. A clamp, though immersed within the patient's body and undiscovered for a long period of time, retains its identity so that a defendant's ability to defend a 'stale' claim is not unduly impaired.

Therefore, where a foreign object has negligently been left in the patient's body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice.

There is a sharp and approximately evenly divided conflict in authorities on this issue in this country. Nine jurisdictions limit the discovery rule to cases where a foreign object has been negligently left in the patient's body. 1 Eleven have adopted the discovery test for all malpractice cases regardless of whether a foreign object is involved. 2 Two States have adopted the discovery rule by statute. 3 The courts in 21 States do not apply a discovery rule, holding that the cause of action accrues from the commission of the malpractice. 4

We are more convinced, however, by the basic logic of the discovery rule than the numbers of jurisdictions which support that view. It is not only an equitable rule but also entirely consistent with the underlying purpose of the Statute of Limitations. (Lillich, The Malpractice Statute of Limitations in New York's New Civil Practice Law and Rules, 14 Syracuse L.Rev. 42; Lillich, The Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Corn.L.Q. 339; Note, Limitations in Professional Malpractice Actions, 28 Maryland L.Rev. 47.)

An argument is made that the failure of the Legislature to pass bills which were suggested by the Law Revision Commission, in order to ameliorate the interpretation given the Statute of Limitations in Conklin, indicates a legislative intent to have our interpretation frozen. This argument rests on unsure ground. No one knows why the Legislature did not pass a proposed measure. Admittedly, if the bill had been discussed in both houses and defeated, this would be an indication of the Legislature's purpose. With regard to the particular proposals before the Legislature, however, no such consideration ever took place. Just recently a bill providing for a discovery rule was acted upon favorably by the Assembly only to fail to be reported out of a Senate Committee. Are we to hold that a majority of a legislative committee, who give no reason for their failure to allow the whole body to vote on a measure, impart a legislative judgment which must be transmuted into a conclusive legislative intent? 'The practicalities of the legislative process furnish many reasons for the lack of success of a...

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