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An intrauterine device (IUD) left in a woman who believed it had been removed 29 years earlier did not become a “foreign object” under civil procedure law that would have enabled her to file a medical malpractice suit beyond the statute of limitations period, the New York State Appellate Division, 2nd Department, has ruled. An appeals panel found that a lower court erred in determining that the IUD became a foreign object once the plaintiff believed it had been removed. Instead, the panel held, the IUD was a so-called fixation device. Therefore, the time began to run when the defendants allegedly failed to remove the IUD, not when it was discovered some 29 years later. Fixation devices include pins used to keep bones aligned and other objects implanted in the body. The decision in Owen v. MacKinnon, 23065-99, held that a fixation device “could not be transformed into a foreign object when a physician negligently fails to remove it.” However, the judges sent the case back to the lower court to determine whether the plaintiff, Susan L. Owen, could use principles of equity, or fairness, to overcome the statute of limitations problem. The appeals panel reasoned that since the plaintiff alleged that Dr. Margaret MacKinnon had deceived her when she told her in 1970 that the device had been removed, a question of fact remained as to whether the physician could use the statute of limitations argument as a defense. The decision signed Monday stemmed from a malpractice action in which Owen claimed that MacKinnon told her that she had removed the IUD decades earlier after Owen began experiencing physical problems that she associated with it. Owen said she told the doctor that the pain continued and that she was unable to become pregnant. The doctor allegedly told her the problems would subside. Owen became pregnant twice after she thought the IUD was removed but was unable to conceive a third time. Upon consulting a different doctor on an unrelated gastrointestinal condition, she allegedly was informed that the IUD was still implanted. She had it removed in April 1999. The usual statute of limitations period for such an action would have been three years. In the trial court, Suffolk County Supreme Court Justice Peter Fox Cohalan turned to a Court of Appeals case that carves out an exception for foreign objects. The exception calls for the limitations period to begin accruing when the object is discovered. Justice Cohalan wrote that although the IUD was implanted with the plaintiff’s consent, he was hard-pressed to determine how it could “belong” in the patient after she requested its removal. The Appellate Division reasoned differently. “An IUD, which is intentionally placed in a patient’s body as a means of contraception, is a ‘fixation device’ which does not qualify as a ‘foreign object,’” the panel wrote. “Thus, the plaintiffs’ malpractice claim accrued when the defendant allegedly failed to remove the IUD, not when the plaintiffs discovered that it had not been removed.” Christopher J. Purcell, in Huntington, represented Owen at the trial level. Marulli & Associates, in New York, represented MacKinnon at that level. The justices on the appeals panel were David S. Ritter, Gabriel M. Krausman, Daniel F. Luciano and Barry A. Cozier.

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