Adam L. Walton, Plaintiff,
Strong Memorial Hospital, UNIVERSITY OF ROCHESTER MEDICAL CENTER, CHILDREN'S HOSPITAL AT STRONG, SCOTT STEWART, M.D.; JAMES MANNING, M.D.; PETER KNIGHT, M.D.; J.A. JANUS, M.D.; GREGORY APPENFELLER, M.D. and JOHN/JANE DOE, M.D., Defendants.
APPEARANCES:BROWN CHIARI, LLP, Attorneys for Plaintiff.
James M. Mucklewee, Esq., of Counsel.
MARTIN CLEARWATER & BELL, LLP, Attorneys for Defendants.
William P. Brady, Esq., of Counsel.
Geri B. Horenstein, Esq., of Counsel.
HON. John M. Curran, J.S.C.
Defendants move to dismiss pursuant to CPLR 3211 (a) (5) asserting that the
action may not be maintained because the statute of limitations expired before the action was commenced on November 24, 2009. Defendants claim that the statute of limitations expired on May 30, 1996, pursuant to CPLR 208. Plaintiff argues that the action was timely commenced under the "foreign object" discovery rule codified in CPLR 214-a.
On May 27, 1986, plaintiff, who was then three (3) years old, underwent surgical repair of his heart by defendants Stewart and Knight at Strong Memorial Hospital. The operative note from the surgery states that: "polyvinyl catheters were placed within the left atrium and right atrium for recording atrial pressure" (Ex. D annexed to Affirmation of William P. Brady, Esq., sworn March 14, 2012 ["Brady Affirmation"]). Additionally, myocardial pacing wires were placed upon the right atrium and right ventricle for pacing, and two pericardial drainage tubes were placed, anteriorly and posteriorly (Ex. D to the Brady Affirmation). According to the expert affidavit submitted by plaintiff:
These catheters are placed to permit monitoring of arterial and venous pressures for management of fluid replacement, blood pressure, and prevention and/or treatment of congestive heart failure, such that adjustments can be made as necessary to maintain the hemodynamic stability necessary to prevent death and/or organ failure, which are recognized complications of this type of surgery.
(Plaintiff Expert Affidavit, ¶ 3).
Three days later, on May 30, 1986, defendant Appenfeller ordered that the aforementioned polyvinyl catheters and myocardial pacing wires, as well as the vericurdial drainage tubes, be disconnected. The nursing progress note reflecting such removal states: "LA [left atrial] line possibly broke off with a portion remaining in pt" (Ex. E to Brady Affirmation).
On March 2, 2003, while visiting the City of Boston, plaintiff, then 19 years old, presented to Boston Medical Center with complaints of double vision, difficulty in walking and lightheadedness secondary to an inability to see. On March 3, 2003, plaintiff underwent a transesophageal echocardiogram ("TEE") which documented "small mobile filamentous masses seen on the right and left side via atrioseptum, which may represent suture material but could not rule out clot." On that date, it was determined that plaintiff had suffered an embolic stroke. On March 11, 2003, a neuropsychology consultation indicated that plaintiff's cognitive function was characterized by mild and selective deficits in verbal and visual-spacial memory, visual organization and higher cognitive function (Brady Affirmation, ¶ 10; Ex. F to Brady Affirmation; Plaintiff Expert Affidavit, ¶ 8).
On December 2, 2008, plaintiff went to the emergency room at Vanderbilt University Medical Center complaining of blurred vision, left eye weakness, right arm weakness and a right facial droop. Plaintiff was then diagnosed as having suffered a transient ischemic attack (as he also was noted to have done in July of 2008), and a decision was made to replace his pacemaker battery (plaintiff had undergone surgery to insert a pacemaker in April of 2001). On December 4, 2008, plaintiff underwent a pacemaker generator replacement and the echocardiogram revealed a linear density that appeared to course from the superior venacava across the atrial septum into the left atrium (Brady Affirmation, ¶ 11; Ex. F to Brady Affirmation; Plaintiff Expert Affidavit, ¶ 9).
On December 18, 2008, plaintiff underwent surgery at Vanderbilt University Medical Center to remove a 13 cm portion of catheter which is alleged to have been left behind following the surgery and subsequent removal procedure performed at Strong Memorial Hospital in May of 1986. The operative report from Vanderbilt University Medical Center states:
The left atrium was examined; 13 cm loop of plastic tubing approximately 5-French in caliber was seen adherent to several areas within the atrium and looping around the perimeter of the atrium. There was an apparent exit site near the right upper pulmonary vein and the foreign body and its associated neointima were removed in its entirety with the extension somewhat of ...