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March 25, 1996


The opinion of the court was delivered by: CONNER

 Conner, Sr. D.J.:

 Plaintiffs John and Jeanette Adams (husband and wife) commenced this diversity action against defendants New Rochelle Hospital Medical Center ("New Rochelle"), John J. Zellinger, M.D. ("Dr. Zellinger") and The Estate of Arthur J. Mannix, Jr., M.D. (deceased) ("Estate of Mannix") alleging that Mr. Adams suffered injury in or about July 1994 from a surgical sponge he claims was negligently left in his body during a surgical procedure he underwent at New Rochelle in or about December 1950. Ms. Adams asserts a claim for loss of consortium in connection with her husband's injury.

 Defendants have moved for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that dismissal is warranted because (1) the action is time-barred and (2) Ms. Adams cannot recover for loss of consortium because she was not married to Mr. Adams at the time of the alleged injury. For the reasons discussed below, defendants' motion is denied in part and granted in part.


 On a motion to dismiss, we draw all reasonable inferences in favor of plaintiffs, and accept as true all factual allegations in the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir. 1989). A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if it appears beyond doubt that plaintiffs can prove no set of facts entitling them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985).

 Mr. Adams alleges that on or about December 29, 1950, New Rochelle, by Drs. Zellinger and Mannix, performed on him a right lumbar sympathectomy and, subsequently, during the same period in the winter of 1950/1951, a left lumbar sympathectomy. Mr. Adams claims that during one or both of these operations, one or more surgical lap sponges were negligently left inside him by defendants. Mr. Adams alleges that these one or more sponges rendered him ill in July 1994, and that this alleged illness required hospitalization and surgery in July 1994. The Adamses allege that they were married at the time the sponges were discovered and removed in July 1994, but not when the sponges allegedly were left in 1950.

 I. Statute of Limitations

 Neither party disputes that New York law governs this diversity action. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Although Mr. Adams is an out-of-state resident, he claims injury from alleged malpractice in New York. We therefore look to New York law to determine the applicable statute of limitations in a foreign object malpractice action. Hoelzer v. The City of Stamford, Conn., 933 F.2d 1131, 1136 (2d Cir. 1991); Yosef v. The Passamaquoddy Tribe, 876 F.2d 283, 287 (2d Cir. 1989), cert. denied, 494 U.S. 1028, 108 L. Ed. 2d 611, 110 S. Ct. 1474 (1990); Morse v. Elmira Country Club, 752 F.2d 35, 37 (2d Cir. 1984).

 Under New York law, the general rule is that a cause of action for malpractice accrues at the time the alleged conduct occurred. See N.Y. Civ. Prac. L. & R. 214-a (McKinney 1990); Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 723, 342 N.E.2d 516 (N.Y. 1975). Under this rule, plaintiffs' action would be time-barred because the alleged injury occurred during the winter of 1950/1951, more than two years and six months prior to the filing of this action. However, section 214-a of the New York CPLR provides an exception to the general rule for malpractice actions based on foreign objects left in the body: "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 the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier." N.Y. Civ. Prac. L. & R. 214-a. Based on this exception, known as the "discovery rule," plaintiffs' action would be timely because Mr. Adams alleges that he discovered in July 1994 that surgical sponges were left in his body, and he filed this action prior to July 1995. Defendants do not dispute that a surgical sponge constitutes a "foreign object" for the purpose of the discovery rule.

 Defendants argue that the New York discovery statute, N.Y. Civ. Prac. L. & R. 214-a, enacted in 1969, does not apply to malpractice occurring prior to July 1, 1975. See Maresca v. Berson, 84 A.D.2d 760, 443 N.Y.S.2d 770, 771 (App. Div. 1981) ("Whether the three-year limitation period contained in subdivision 6 of CPLR 214, or the two years and six months period contained in CPLR 214-a (L. 1975, ch. 109) is applicable may be resolved only by a determination as to whether the malpractice occurred before or after July 1, 1975 (L. 1975, ch. 109, ยง 37)."); 1 WEINSTEIN-KORN-MILLER, NEW YORK CIVIL PRACTICE P 2.14-a.02 (1996). However, defendants concede that, even prior to codification of the New York discovery rule, the New York Court of Appeals had fashioned a similar discovery rule in Flanagan v. Mount Eden General Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 (N.Y. 1969). See also Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 500 N.Y.S.2d 640, 641, 491 N.E.2d 1097 (N.Y. 1986).

 In Flanagan, the New York Court of Appeals squarely addressed the question "when should the Statute of Limitations begin to run in a foreign object medical malpractice case?" Flanagan v. Mount Eden General Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 25, 248 N.E.2d 871 (N.Y. 1969). In Flanagan, the plaintiff was under the care of the defendant for a gall bladder ailment, and underwent surgery in July 1958. 301 N.Y.S.2d at 24. During the course of the operation, surgical clamps were inserted in the plaintiff's body. Id. Eight years later, in the spring of 1966, after experiencing pain in her abdomen, plaintiff discovered through X-rays that surgical clamps were lodged in her body. Id. In June 1966, an operation was performed to remove the clamps. Id. In this landmark case, the New York Court of Appeals held that the statute of limitations in a foreign object malpractice case begins to accrue when the patient reasonably could have discovered the malpractice, not when the allegedly negligent act occurred. Id., at 27. In its discussion, the court tried to reconcile the competing policy objectives underlying the statute of limitations and the narrowly drawn exception which tolled accrual of the limitations period in foreign object actions:

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 harmony 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, reality, 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 ...

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