Summary Judgment Granted to Orthopedic Surgeon on Statute of Limitations Grounds

Gerspach Sikoscow obtained summary judgment and dismissal on behalf of an orthopedic surgeon, who allegedly left a k-wire within the plaintiff's left shoulder during a laparoscopic labral repair in 2004. Plaintiff, who commenced her lawsuit in 2011, admitted that she had learned of the presence of a metallic object within her left shoulder after undergoing a chest x-ray in 2009. Defendant moved for dismissal of the claims as time-barred, contending that plaintiff failed to timely commence her action within one year of discovery of the foreign body. In opposition, plaintiff argued that defendant should be estopped from raising a statute of limitations defense by virtue of his fraudulent concealment of his own malpractice. Furthermore, plaintiff contended that her cause of action did not accrue until April 2010, at which point she consulted another orthopedist and was led to believe that the metallic object visible on her 2009 x-ray was related to defendant's surgery. In this regard, plaintiff posited that it is not merely discovery of the foreign body, but discovery of the foreign body coupled with a basis for believing that it was left behind as a result of malpractice, that begins to toll the one-year limitations period. J. Stanley Green, Supreme Court, Bronx Co., rejected plaintiff's arguments and granted defendant's motion in its entirety.