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Statute of Limitations and “Foreign Object” Rule

Medical Malpractice LawyerThe statute of limitations in a New York medical malpractice lawsuit typically begins to run on the date that the mistake or malpractice is committed. There are few exceptions to this rule. One exception, the “foreign object rule,” tolls the statute of limitations for filing a medical practice lawsuit where a foreign object is negligently left inside a patient after a surgical procedure. “Tolling” the statute of limitations means pausing or delaying the deadline for filing a lawsuit. The statute of limitations is tolled because the patient may not even know that an object has been left inside him or her. The patient must sue within one year of discovering the foreign object.

It’s a good idea to consult a New York medical malpractice attorney as soon as possible so that you can avoid a statute of limitations defense.

A “foreign object” has been defined as something that doctors never intended to leave inside a patient, such as a sponge or a needle. A foreign object is not something that doctors intended to remain in the patient’s body, even just temporarily.

Fixation devices” are items placed in the patient with the intention that they serve a continuing medical purpose, such as a catheter, pacemaker or an artificial knee. If a fixation device malfunctions the statute of limitations is not tolled.

Because it is often unclear whether the statute of limitations will be tolled or not, it is best to contact a New York medical malpractice as soon as you suspect you may have a medical malpractice case.

Broken Catheter Case

In one case, doctors intentionally left a catheter in a patient’s heart and removed it a few days later. However, when they removed the catheter, a piece broke off and remained in the plaintiff’s heart. Since the catheter was originally intended to remain, the broken piece could not be considered a “foreign object.” Accordingly, the statute of limitations was not tolled during the years that the catheter piece was in the patient without him knowing. The judge made this ruling even though he held that there was no question that the catheter piece was not left intentionally and did not serve a continuing medical purpose.

If you have been injured by medical malpractice, call Gersowitz Libo & Korek, P.C. at (212) 385-4410 to schedule a free consultation with a New York medical malpractice attorney.

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Jeff Korek

Jeff S. Korek

Senior Trial Partner​

Jeff S. Korek joined Gersowitz Libo & Korek, P.C. in 1992 as the Senior Trial partner. Known for his meticulous preparation and dedication to his clients, Jeff has obtained some of the state’s highest verdicts and settlements.