Tantleff & Kreinces, LLP, Mineola, NY (Matthew R.
Kreinces of counsel), for appellant.
Helwig, Henderson, LaMagna & Spinola, LLP, Carle Place,
NY (Kyriakoula Fatsis and Bruce M. Helwig of counsel), for
respondents Jeffrey Nakhjavan and Jeffrey M. Nakhjavan, D.O.,
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert
G. Vizza of counsel), for respondent Elliott Eisenberger.
Johs Avallone Aviles, LLP, Islandia, NY (Robert A. Lifson of
counsel), for respondent Good Samaritan Hospital Medical
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B.
AUSTIN, SHERI S. ROMAN, JJ.
DECISION & ORDER
action to recover damages for medical malpractice and lack of
informed consent, the plaintiff appeals, as limited by her
brief, from so much of an order of the Supreme Court, Suffolk
County (Mayer, J.), dated March 20, 2015, as granted that
branch of the motion of the defendant Elliot Eisenberger, and
those branches of the separate cross motions of the defendant
Good Samaritan Hospital Medical Center and the defendants
Jeffrey Nakhjavan, and Jeffrey M. Nakhjavan, D.O., P.C.,
which were pursuant to CPLR 3211(a)(5) to dismiss the cause
of action alleging medical malpractice insofar as asserted
against each of them as time-barred.
that the order is affirmed insofar as appealed from, with one
bill of costs payable to the respondents appearing separately
and filing separate briefs.
January 2008, the plaintiff, who suffered from Crohn's
disease, was under the care of her treating
gastroenterologist, the defendant James Kohlroser, who
advised her to swallow a capsule camera in order to undergo a
capsule endoscopy. The camera inside the capsule transmitted
pictures to a computer worn by the plaintiff during the
procedure, which lasted approximately six to eight hours. The
capsule camera was expected to pass through and exit the
plaintiff in the normal course of digestion. However, a CAT
scan taken of the plaintiff in January 2009 revealed the
presence of a metallic object lodged inside her intestines.
The plaintiff alleged that she was never advised of the
results of the 2009 CAT scan. A subsequent CAT scan performed
in 2011 revealed the presence of the endoscopic capsule
camera inside the plaintiff's intestines. The capsule
camera had to be surgically removed.
August 2011, the plaintiff commenced the instant action,
alleging medical malpractice and lack of informed consent,
against Kohlroser and his medical group, her primary care
physician, Jeffrey Nakhjavan, and his medical practice, the
radiologist who interpreted the 2009 CAT scan, Elliott
Eisenberger, and the hospital where the CAT scan was
performed, Good Samaritan Hospital Medical Center
(hereinafter the hospital). Eisenberger moved pursuant to
CPLR 3211(a)(5) to dismiss the complaint insofar as asserted
against him as time-barred. Nakhjavan and his medical
practice, and the hospital, separately cross-moved for the
same relief. The Supreme Court granted the motion and the
cross motions, and the plaintiff appeals from so much of the
order as granted those branches of the motion and cross
motions which were to dismiss the cause of action alleging
dismiss a cause of action pursuant to CPLR 3211(a)(5) on the
ground that it is barred by the applicable statute of
limitations, a defendant bears the initial burden of
demonstrating, prima facie, that the time within which to
commence the action has expired" (Stewart v GDC
Tower at Greystone, 138 A.D.3d 729, 729; see Geotech
Enters., Inc. v 181 Edgewater, LLC, 137 A.D.3d 1213,
1214; Vissichelli v Glen-Haven Residential Health Care
Facility, Inc., 136 A.D.3d 1021, 1022; Barry v
Cadman Towers, Inc., 136 A.D.3d 951, 952). "If the
defendant satisfies this burden, the burden shifts to the
plaintiff to raise a question of fact as to whether the
statute of limitations was tolled or otherwise inapplicable,
or whether the plaintiff actually commenced the action within
the applicable limitations period" (Barry v Cadman
Towers, Inc., 136 A.D.3d at 951; see Stewart v GDC
Tower at Greystone, 138 A.D.3d at 730; Geotech
Enters., Inc. v 181 Edgewater, LLC, 137 A.D.3d at 1214;
Vissichelli v Glen-Haven Residential Health Care
Facility, Inc., 136 A.D.3d at 1022). Here, in opposition
to the moving defendants' prima facie showing that the
time in which to commence the cause of action alleging
medical malpractice had expired, the plaintiff failed to
raise a question of fact as to whether the statute of
limitations was tolled pursuant to the foreign object
discovery rule of CPLR 214-a.
"[a]n action for medical... malpractice must be
commenced within two years and six months of the act,
omission or failure complained of" (CPLR 214-a).
However, "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"
(CPLR 214-a). The statute provides that a "fixation
device" is not a "foreign object" (CPLR
[I]n determining whether an object which remains in the
patient constitutes a "foreign object, " [courts]
should consider the nature of the materials implanted in a
patient, as well as their intended function
'" (Walton v Strong Mem. Hosp., 25 N.Y.3d
554, 572, quoting Rockefeller v Moront, 81 N.Y.2d
560, 564). "In short, every fixation device is
intentionally placed for a continuing (even if temporary)
treatment purpose, but it does not follow that everything
that is intentionally placed for a continuing treatment
purpose is a fixation device" (Walton v Strong Mem.
Hosp., 25 N.Y.3d at 572). Thus, in determining whether
objects are foreign objects pursuant to CPLR 214-a,
"[t]he question then becomes whether... [the objects]
are analogous to tangible items like... [surgical] clamps...
or other surgical paraphernalia (e.g., scalpels, sponges,
drains) likewise introduced into a patient's body solely
to carry out or facilitate a surgical procedure"
(Walton v Strong Mem. Hosp., 25 N.Y.3d at 572).
capsule camera at issue herein was used diagnostically to
visualize the condition of the plaintiff's intestines. It
was not used or even introduced into the plaintiff's body
in the course of a surgical procedure. Rather, the capsule
camera was knowingly and intentionally swallowed by the
plaintiff with the expectation that it would travel through
her digestive system until eliminated in the regular course
of digestion. Thus, the malpractice alleged against the
moving defendants, the failure to recognize from the 2009 CT
scan that the observed metallic object was a retained
endoscopic capsule camera, and to advise the plaintiff of
such, " is most logically classified as one involving
misdiagnosis-a category for which the benefits of the
"foreign object" discovery rule have routinely been
denied'" (id. at 567, quoting Rodriguez
v Manhattan Med. Group,77 N.Y.2d 217, 222-223).