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Plaintiff-wife, together with her husband, has sued her prior physician


Plaintiff-wife, together with her Westchester husband, has sued her prior physician for alleged malpractice for insertion in 1973 of a Majzlin Spring Intrauterine Device (hereafter known as IUD), a birth control device which was recalled at the medical level by the Federal Food and Drug Administration (F.D.A.), allegedly prior to the date of insertion. Plaintiff has also joined, as party defendants, both the developer and the distributor of the Majzlin Spring.

Plaintiffs’ allegations of medical malpractice are twofold: first, that the defendant was negligent in inserting the IUD originally (when it had already allegedly been recalled); and further, that he was negligent in later failing to inform the plaintiff-wife that the IUD had been recalled and should be removed.

Defendant physician moved to dismiss the action against him on the grounds that it is time-barred under the Statute of Limitations; that he inserted the IUD in November of 1972, prior to the recall by the F.D.A.; and that, regardless of when the device was inserted, the then three year Statute of Limitations has long since run in either event, since the alleged malpractice, if any, occurred at the time of insertion.

The Ruling:

Notably, the Court has before it only a motion to dismiss. There is no cross-motion to dismiss the affirmative defense. Thus, the only issue is whether, assuming the truth of the facts asserted in the complaint, the cause of action is time-barred as a matter of law.

On the issue of failure to inform, this was a continuing omission on the part of the defendant which existed up to the time that plaintiffs learned that the IUD had been recalled and/or should be removed, which was apparently sometime in 1978-9. Plaintiffs would have had two and one-half years from the date of the omission to bring their action. The complaint was served in July, 1979. As such, the motion to dismiss that part of the cause of action which relates to said failure to inform is denied.

On the original insertion of the IUD, plaintiffs proceed under the theory that the IUD constituted a foreign object negligently inserted and/or left in the plaintiff-wife’s body, so that the Statute of Limitations did not begin to run until the plaintiffs had or should have reasonably discovered the malpractice. Under this theory, the applicable Statute of Limitations would be one year from the date of reasonable discovery, which plaintiffs claim was sometime in 1978-9. There is no claim by defendant that, if the one year is applicable, the action was not brought within the permissible time period.

The general rule is that the Statute of Limitations begins to run at the time of the medical treatment when the foreign substance, e. g. a drug is introduced into the body, and not at the time of discovery of the consequent injury or disease. However, when a foreign object is negligently left in the body, the action accrues at the time of reasonable discovery of such foreign object and the malpractice.

Here, as the IUD is not a chemical compound, fixation device or prosthetic aid, it is not barred by statute from being classified as a foreign object, if appropriate.

The question of whether an IUD constitutes a foreign object has been resolved by courts in recent case laws. In the case of Ooft, the court found that an IUD constituted a foreign object, in a case in which the physician had failed to remove a first IUD when inserting a second one. Plaintiff, who allegedly did not know that the first IUD had not been removed, suffered complications and underwent surgery, at which time the first IUD was found and removed. The fact pattern established a classic foreign object case, in which the patient is totally unaware of the presence of the foreign object left in the body initially. The court therein both denied the motion to dismiss and struck the affirmative defense of the Statute of Limitations. On appeal, the order was modified to the extent of deleting the provision striking the affirmative defense of the Statute of Limitations.

The aforesaid case is clearly distinguishable from the case herein. However, a recent decision by in Supreme Court, New York County, in June of 1981, involving a Dalkon Shield, another type of IUD, is more on point. In that case, the IUD was inserted in 1972 and the plaintiff developed an infection in 1978 which necessitated surgery, allegedly because the IUD was defective. The court examined the relevant case law at length and ultimately concluded that the cause of action accrued at the time of discovery rather than at the time of insertion.

Although the defendant in the aforesaid case was the manufacturer rather than the physician, much of the reasoning leading to the conclusion that the cause of action did not accrue until the time of discovery is applicable in the instant case. The facts are similar: there was no personal injury claimed to have occurred at the time of the insertion of the defective IUD; complications (i. e. actual injury) did not apparently occur until 5 or 6 years later; the probable causation for this injury (here the allegedly negligent insertion of the IUD) was not known to plaintiff until shortly after the time of injury (even though the presence of the IUD was known all along). Like the court therein, the herein Court finds that the policy considerations stated lead to the conclusion in such circumstances that the cause of action did not accrue until the reasonable discovery of the malpractice (here seemingly in 1978-9). In addition, there was the alleged negligence of the defendant in failing to advise the plaintiff of the recall of the particular type of IUD, which continued up to the time of reasonable discovery.

Henceforth, the motion to dismiss is denied, without prejudice to defendant to assert and prove his affirmative defense.

For similar concerns, contact a Kings County Medical Malpractice Lawyer at Stephen Bilkis & Associates. Our King’s County Personal Injury Attorneys are available to assist you and answer any of your legal concerns. Have a free consultation with our experts and be aware of the proper legal actions you may file.

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