Murphy v. St. Charles Hospital

• Decision Date: 20 July 1970
• Citation: 35 A.D.2d 64,312 N.Y.S.2d 978
• Parties: Theresa MURPHY et al., Respondents, v. ST. CHARLES HOSPITAL, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 978

312 N.Y.S.2d 978

35 A.D.2d 64

Theresa MURPHY et al., Respondents, v. ST. CHARLES HOSPITAL, Appellant, et al., Defendant.

Supreme Court, Appellate Division, Second Department.

July 20, 1970.

Patrick F. Adams, Mineola (Anthony J. Cincotta, Mineola, of counsel), for appellant.

Cooper, Abrams & Herman, Deer Park (Hyman Herman, Deer Park, of counsel), for respondents.

Before CHRIST, P.J., and RABIN, HOPKINS and BRENNAN, JJ.

SAMUEL RABIN, Justice.

The question raised by the instant appeal is whether plaintiff Theresa Murphy's action to recover damages for personal injuries is barred by the three-year Statute of Limitations applicable to malpractice actions (CPLR 214, subd. 6).

On January 18, 1963, a medical device known as a Moore Prosthesis was surgically inserted in plaintiff Theresa's right hip and femur while she was a patient at the defendant hospital in Port Jefferson, New York. On May 17, 1967, almost four years and four months after its insertion, the device broke, forcing Theresa to undergo surgery for the removal of the fragmented and displaced proshesis.

Plaintiff Theresa and her husband commenced this action for damages against the defendant hospital on April 16, 1968. In addition to a general denial, the hospital interposed an affirmative defense that the action was barred by the three-year Statute of Limitations (CPLR 214, subd. 6). The plaintiffs moved to dismiss this defense. The hospital cross-moved to dismiss the complaint. The plaintiffs' motion was granted; the affirmative defense of the Statute of Limitations was dismissed; and the cross motion was denied.

On appeal, the hospital contends: that the plaintiffs' claim is based upon malpractice; that a malpractice cause of action accrues at the time the negligent act is committed; that the time the instant malpractice action accrued was the date the prosthetic device was inserted (January 18, 1963) and not the date it broke (May 17, 1967); and that, as a result, the three-year Statute of Limitations period applicable to malpractice actions (CPLR 214, subd. 6) bars the plaintiffs' claim. The hospital further contends that the instant case, within the meaning of a recent landmark case, involves, for the purpose of computing the Statute of Limitations, negligent medical treatment, dating from the date of the occurrence, and not a foreign object left in a patient's body, liability whereon dates from time of discovery (Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871).

In my opinion the hospital's contention that the plaintiff's claim is time-barred cannot be sustained in light of a careful analysis of the Flanagan decision. In that case, during the course of a 1958 operation, surgical clamps were negligently left in the plaintiff's body. In the spring of 1966 the plaintiff experienced severe pain in her abdominal area and consulted a doctor. On June 10, 1966, an operation was performed to remove the clamps.

In Flanagan the surgical clamps were considered as real evidence, lasting, tangible and not as items disappearing or becoming unrecognizable with the passage of time. It was held that, where real evidence exists, the defendant is not called upon to defend against a claim where "evidence has been lost, memories have faded, and witnesses have disappeared" (Flanagan v. Mount Eden Gen. Hosp., Supra, p. 429, 301 N.Y.S.2d p. 25, 248 N.E.2d p. 872).

Where a foreign object is left in a patient's body, it was pointed out that no claim may be made that the patient's action is feigned and frivolous, that the danger of...