## Facts

- In May 1986, Peter LaBarbera underwent nasal reconstruction surgery performed by Dr. Jack Martin Shapiro at New York Eye and Ear Infirmary.
- Dr. Shapiro inserted Bacitracin gauze packing and a plastic silastic stent to provide temporary support, promote healing, and prevent scarring.
- The stent and packing were expected to be removed about 10 days after surgery, but only the packing was removed.
- LaBarbera experienced persistent nasal and respiratory problems for about six years and consulted Dr. Shapiro and other physicians; none detected the retained stent.
- LaBarbera’s last contact with Dr. Shapiro occurred in September 1988.
- In 1992, another physician discovered and removed the stent during an endoscopic rhinoscopy; LaBarbera’s symptoms ceased.
- LaBarbera sued for medical malpractice in June 1993, within one year of the stent’s discovery and removal.
- Dr. Shapiro moved for summary judgment, arguing the claim was barred by CPLR 214-a’s 2.5-year limitations period; Supreme Court granted the motion, and the Appellate Division affirmed.

## Issues

1. Whether an internally placed plastic nasal stent intentionally inserted for post-surgical healing, but negligently not removed as planned, is a “foreign object” under CPLR 214-a.
2. Whether the “foreign object” discovery rule (one year from discovery) applied to make the June 1993 malpractice action timely.

## Decision

- The New York Court of Appeals affirmed dismissal on summary judgment.
- The Court held the silastic stent was not a “foreign object” within CPLR 214-a.
- Because the stent was intentionally placed for a continuing treatment purpose, it fell within the category of therapeutic or fixation devices excluded from the foreign-object discovery rule.
- The action, filed more than 2.5 years after the last treatment date in September 1988, was time-barred.

## Legal Principles

- CPLR 214-a generally requires medical malpractice actions to be commenced within 2.5 years from the alleged act or omission (or from the last date of continuous treatment).
- The statute’s “foreign object” provision is a narrow exception permitting suit within one year of discovery (or when discovery reasonably should have occurred) only for qualifying foreign objects.
- A “foreign object” is typically an item inadvertently left in a patient that was not intended to remain; therapeutic or fixation devices intentionally placed as part of treatment are not “foreign objects,” even if intended to be temporary.
- Whether the exception applies turns on the object’s nature and purpose at the time of insertion, not on a later negligent failure to remove it.
- Negligent failure to remove a therapeutic device is addressed under ordinary malpractice limitations rules, not by recharacterizing the device as a statutory foreign object.

## Conclusion

The Court held that an intentionally placed, treatment-related nasal stent does not qualify as a “foreign object” under CPLR 214-a, so the one-year discovery rule did not apply and the malpractice claim filed more than 2.5 years after the last treatment was untimely.


LaBarbera v. N.Y. Eye & Ear Infirmary, 91 N.Y.2d 207, 668 N.Y.S.2d 546, 691 N.E.2d 617 (1998)