(CN) – A woman was not too late to claim that her doctor left piece of a metal needle in her breast during a biopsy, a New York appellate division ruled.
Vanessa Shanahan sued Dr. Paul Wopperer for medical malpractice after a piece of a needle broke off into her right breast during surgery in 2005.
Wopperer claimed the mishap took place in a 2004 surgery, which would have caused Shanahan’s action to be time-barred.
The trial court allowed Shanahan’s lawsuit to proceed, and the justices of the Rochester-based 4th Appellate Division affirmed.
“Although (another) physician testified at her deposition that, based upon her review of plaintiff’s MRI films from 2004 and 2005, a ‘white artifact’ that she identified as the metallic fragment was present in plaintiff’s breast before the June biopsy, it should be noted that the physician did not set forth that observation in her December 2005 MRI report despite reviewing the same films at the time,” the justices wrote.
“We thus conclude that the burden never shifted to plaintiffs to raise a triable issue of fact.”