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Fred A. Jacobs v. the University of Rochester

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 8, 2013

FRED A. JACOBS,
PLAINTIFF-APPELLANT,
v.
THE UNIVERSITY OF ROCHESTER, STRONG MEMORIAL HOSPITAL AND DONALD P.K. CHAN, M.D.,
DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Herkimer County (Norman I. Siegel, A.J.), entered January 19, 2012.

Jacobs v University of Rochester

Released on February 8, 2013

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.

The order granted the motion of defendants for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this medical malpractice action in March 2008 seeking damages for injuries sustained as a result of spinal fusion surgery performed in August 1989. During the course of the surgery, a device known as a "Wisconsin wire" was implanted in plaintiff's body in order to enhance the fixation and stabilization of his thoracic spine. Thereafter, over the course of many years, plaintiff experienced pain and discomfort at the surgical site and inquired of a physician in February 2004 whether a wire was protruding from his spine. An X ray taken in March 2007 revealed that a Wisconsin wire was in fact protruding from plaintiff's spinal column into his muscle and soft tissue at the surgical site. The position of the wire was corrected in April 2007. Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint as time-barred.

Plaintiff contends that, because the wire was not properly bent, twisted or placed when it was implanted, it became a "foreign object" within the meaning of CPLR 214-a. He thus contends that this action was timely commenced within one year of the discovery of the wire or "of facts which would reasonably lead to such discovery, whichever is earlier," rather than within two years and six months from the date of the act (id.). Contrary to plaintiff's contention, however, it is well settled that an intentionally implanted device is not a "foreign object" within the meaning of CPLR 214-a (see LaBarbera v New York Eye & Ear Infirmary, 91 NY2d 207, 212-213; Rockefeller v Moront, 81 NY2d 560, 564-565; Provenzano v Becall, 138 AD2d 585, 585).

Entered: February 8, 2013

Frances E. Cafarell Clerk of the Court

20130208

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