Rodriguez v. Manhattan Medical Group, P.C.

• Decision Date: 27 March 1990
• Citation: 552 N.Y.S.2d 947,155 A.D.2d 114
• Parties: Evelyn RODRIGUEZ and Manuel Fuentes, Plaintiffs-Appellants, v. MANHATTAN MEDICAL GROUP, P.C., and "John" Klein, M.D., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 947

552 N.Y.S.2d 947

155 A.D.2d 114

Evelyn RODRIGUEZ and Manuel Fuentes, Plaintiffs-Appellants, v. MANHATTAN MEDICAL GROUP, P.C., and "John" Klein, M.D. Defendants-Respondents.

Supreme Court, Appellate Division First Department.

March 27, 1990.

William Kirchhofer, of counsel (Glatzer, Belovin & Kirchhofer, P.C., New York City, attorneys), for plaintiffs-appellants.

Thomas S. Nogaro, Rosedale, of counsel (Jeffrey D. Karan with him on the brief Michael Saunders, New York City, attorney) for defendants-respondents.

Before MURPHY, P.J., and KUPFERMAN, CARRO, KASSAL and WALLACH, JJ.

WALLACH, Justice.

In "The Doctor in Spite of Himself", Moliere has his imposter-physician place his ear trumpet on the right side of the patient's chest, and, when the latter objects that his heart is on the left side, the "doctor" pompously pronounces his grave professional judgment: "We have changed all that." What the great French playwright is telling us is that the encounter between doctor and patient is at best a chancy and uncertain thing. But we should not undertake to add to that uncertainty by adopting an expansive "foreign object" rule which leaves to purely fortuitous circumstances the duration of the doctor's liability for a diagnostic error.

The facts in this medical malpractice action are stated in the dissenting opinion, which would hold that the IUD involved here, although a "fixation device" upon insertion in plaintiff-patient's body, and thus by definition not a foreign object under CPLR 214-a, was transformed into a foreign object by reason of defendant-doctor's negligent failure to detect its displaced presence after plaintiff came under his care specifically in order to have it removed. While there is respectable authority, cited by the dissent, for that approach, we are not bound thereby, and chose not to follow it since accrual of the Statute of Limitations should not depend on the chance circumstance that the malpractice alleged happens to involve an unwanted or unneeded fixation device.

Suppose Dr. A examines a patient and negligently fails to discover a malignant tumor. Under CPLR 214-a, his liability for that mistaken diagnosis would be barred upon the expiration of two years and six months measured from the time of the misdiagnosis (Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 319 N.Y.S.2d 674 [2nd Dept.]. Suppose further that simultaneously in an adjacent examination room, Dr. B negligently fails to discover an IUD device previously inserted in the patient several years earlier by another doctor. According to the dissent, his liability is open-ended, only terminating one year after the patient discovers, or should have discovered, the error. As we see it, the negligence of both these doctors is the same, namely, one of misdiagnosis, and ought to be treated the same, notwithstanding that the IUD might in common parlance be considered "foreign" to the body and the tumor not (cf., Matter of Soto v. Greenpoint Hospital, 76 A.D.2d 928, 429 N.Y.S.2d 723 [2nd Dept.] [toy lodged in infant-plaintiff's throat not detected by doctor; held, toy not a foreign object. Query: is the toy less foreign to the body than the IUD, or is it that the exception to the foreign object exception urged by the dissent applies only to fixation devices?]. Similarly, in cases of mistreatment, why should the foreign object rule apply when a doctor negligently fails to remove an IUD after undertaking to do so (e.g., Sternberg v. Gardstein, 120 A.D.2d 93, 508 N.Y.S.2d 14 [2nd Dept.]; Ooft v. City of New York, 80 A.D.2d 888, 437 N.Y.S.2d 30 [2nd Dept.], but not apply when a doctor negligently fails to remove a tumor after undertaking to do so (e.g., Florio v. Cook, 65 A.D.2d 548, 549, 408 N.Y.S.2d 949 [2nd Dept.],aff'd, 48 N.Y.2d 792, 423 N.Y.S.2d 917, 399 N.E.2d 947; see also, Famulare v. Huntington Hospital, 78 A.D.2d 547, 432 N.Y.S.2d 33 [2nd Dept.]? Such cases, all decided by the Second Department, are not easy to reconcile (see, McLaughlin, 1981 Supplementary Practice Commentaries in 1990 Cumulative Annual Pocket Part, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 214-a, p. 311).

Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871, in creating the foreign object exception to the general time of commission accrual rule, expressly excluded from the scope of the exception claims implicating "professional diagnostic judgment or discretion" (at 431, 301 N.Y.S.2d 23, 248 N.E.2d 871). Such being the nature of the alleged malpractice here, the claim does not fit within the exception. Whether the Flanagan exception, narrow as it is, strikes a proper balance between the patient's interest in compensation and the doctor's interest in repose is essentially a question of public policy inappropriate for consideration by an intermediate appellate court; "grim logic" though it may be to say that a patient must commence an action before she even knows she has one to commence (see, McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C214:6, p. 434), it is not for us "to depart further from the traditional view of the Statute of Limitations than Flanagan sanctions" (Schiffman v. Hospital for Joint Diseases, 36 A.D.2d supra, at 33, 319 N.Y.S.2d 674). All the more should we hesitate to depart further from the traditional view, considering that the Court of Appeals has twice taken occasion to say that the Legislature, in codifying the foreign object exception in the manner in which it did, has expressed an intent that it "not to be broadened beyond its existing [i.e., Flanagan ] confines." (Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 123, 500 N.Y.S.2d 640, 491 N.E.2d 1097; Matter of Beary v. City of Rye, 44 N.Y.2d 398, 415, 406 N.Y.S.2d 9, 377 N.E.2d 453).

Accordingly, the order of the Supreme Court, New York County (Michael J. Dontzin, J.), entered January 9, 1989, which dismissed the action as barred by the Statute of Limitations, should be affirmed, without costs.

Appeal by the plaintiffs-appellants from an order of the Supreme Court, New York County (Michael J. Dontzin, J.), entered January 9, 1989, which dismissed the action as barred by the Statute of Limitations.

Order, Supreme Court, New York County (Michael Dontzin, J.), entered on January 9, 1989, affirmed, without costs and without disbursements.

All concur except KUPFERMAN and CARRO, JJ., who dissent in an opinion by CARRO, J.

CARRO, Justice (dissenting).

I respectfully dissent and would reverse the order of Supreme Court, reinstate the complaint and grant plaintiffs' motion to dismiss the defendants' affirmative defense raising a claim that the statute of limitations has expired.

This case presents us with the question of whether an intrauterine device (IUD), which had been intentionally inserted into plaintiff's body by a non-party, was transformed into a foreign object, by reason of defendant's failure to remove it upon plaintiff's request, and therefore subject, under CPLR § 214-a, to the foreign object exception to the statute of limitations in a medical malpractice case.

The facts are not in dispute. In 1980, plaintiff Rodriguez had a copper 7 (CU-7) IUD inserted into her uterus by a physician who is not a party to this action. In January 1982, plaintiff came under the care of defendant Manhattan Medical Group ("Medical Group"). Later that year, plaintiff and her husband decided to have the IUD removed so that they could have children; plaintiff stated that she wanted to give her son Carlos a brother or a sister. ¹

On or about November 5, 1982, plaintiff was examined by defendant Dr. Klein, an employee of The Medical Group. Klein conducted an internal examination of plaintiff and, when he did not detect the IUD, ordered x-rays of plaintiff's lower abdomen. Klein reported, after the x-ray was conducted, that "no intrauterine device is noted in the central portion of the pelvic cavity."

On December 17, 1982, plaintiff returned to the Medical Group and was informed by Klein that no IUD was detected by the x-rays and that she could attempt to become pregnant. The records of the Medical Group for that date bore the notation, "no evidence of IUD in pelvis or abdomen. Plan (sic) will attempt pregnancy." Although plaintiff tried to conceive, her efforts were fruitless.

In April 1986, plaintiff began to experience heavy, intermittent vaginal bleeding, which continued for several months. On July 24, 1986, plaintiff sought medical treatment from Dr. George Radney, who performed a sonogram. The sonogram revealed that the subject IUD was not only present, but was, in fact, embedded in the wall of plaintiff's uterus. Plaintiff had to be admitted to St. Luke's/Roosevelt Hospital for surgical removal of the IUD. Among the post-operative findings was the notation that no string from the IUD was visible in the cervix.

Seven months later, plaintiff commenced the instant medical malpractice action. Defendants asserted the affirmative defense that the action was not brought within the applicable statute of limitations. Plaintiffs moved to strike the affirmative defense raised; defendants cross-moved for dismissal of the action based on an untimely action filed after the statute of limitations ran.

Although the IAS court granted defendants' cross-motion for dismissal, it unequivocally acknowledged, "[i]t's true that [plaintiff] had no way of knowing the IUD was there until five years (sic) later when she began to have some physical problems and then a sonogram revealed the device." The court added that the "only" basis upon which it was dismissing plaintiffs' action, "absent a ... First Department ruling," was its belief that it was "constrained to follow the ruling of a sister Appellate Division which has ruled on the subject," referring to the Second Department decision in Sternberg v. Gardstein, 120 A.D.2d 93, 508 N.Y.S.2d 14.

The instant appeal followed.

While the IAS court purported to rely...