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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
LENA LOCKLEAR, Plaintiff, v. STEPHEN L. LANUTI, M.D., STEPHEN L.
LANUTI, M.D., P.A., and SCOTLAND SURGICAL SERVICES, Defendants
Filed: 7 March 2006
Medical Malpractice-_statute of limitations--continuous course of treatment doctrine
A de novo review revealed that the trial court erred in a medical malpractice case by
granting defendants' motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6) based on the
expiration of the statute of limitations, because: (1) continuous course of treatment is an
exception to the rule that the action accrues at the time of defendant's negligence; (2) on its face,
the complaint does not establish that plaintiff knew or should have known that the doctor's
conduct was allegedly wrongful during the course of treatment and whether that conduct
allegedly caused plaintiff's injuries; (3) whether plaintiff was under the continuous care of the
doctor for the injuries which gave rise to the cause of action cannot be resolved as a matter of law
from the face of plaintiff's complaint; and (4) taking plaintiff's allegations as true and reviewing
them in the light most favorable to plaintiff, it does not appear to a certainty that plaintiff is not
entitled to the benefit of the continuing course of treatment doctrine to overcome defendants'
statute of limitations defense.
Appeal by plaintiff from order entered 9 May 2005 by Judge Ola
M. Lewis in Robeson County Superior Court. Heard in the Court of
Appeals 9 February 2006.
Mitchell Brewer Richardson, by Ronnie M. Mitchell and Coy E.
Brewer, Jr., for plaintiff-appellant.
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Mark
E. Anderson, Tobias S. Hampson, and Edward K. Brooks, for
Lena Locklear (plaintiff) appeals from the trial court's
order granting Stephen L. Lanuti, M.D. (Dr. Lanuti), Stephen L.
Lanuti, M.D., P.A., and Scotland Surgical services' (collectively,
defendants) motion to dismiss. We reverse and remand.
A. History of Treatment
On 27 June 2002, plaintiff filed a complaint against
defendants in the Robeson County Superior Court alleging medical
malpractice by defendants. Plaintiff's complaint alleges the
following sequence of events.
On or about 13 January 1997, plaintiff was seen by Dr. Lanuti
for complaints of rectal bleeding, weakness, nausea, and vomiting
coffee ground gastric contents. On 15 January, Dr. Lanuti
performed an outpatient colonoscopy and esophagogastroduodenoscopy
(EGD) procedure. Three biopsy specimens were sent to pathology for
identification and description. A rectal polyp was identified as
histologically unremarkable rectal mucosa. Plaintiff was
instructed to follow up with Dr. Lanuti in one week. The following
day, plaintiff telephoned Dr. Lanuti's office with complaints of
bleeding and pain. Plaintiff was examined in the emergency room of
Scotland Memorial Hospital and Plaintiff was released with
instructions to follow up with Dr. Lanuti. On 27 January 1997, Dr.
Lanuti diagnosed plaintiff with grade III hemorrhoids.
On 5 February 1997, plaintiff was again admitted to Scotland
Memorial Hospital, diagnosed with grade IV hemorrhoids, and Dr.
Lanuti performed a hemorrhoidectomy. On 8 February 1997, Dr.
Timothy Moses (Dr. Moses) provided a consultation for plaintiff
for urinary retention, fever, and severe perineal pain. Dr. Moses
suspected a perirectal abscess.
Dr. Moses performed a cystourethroscopy with bilateral
urethral cath placement. On 9 February, Dr. Lanuti performed a
diverting end colonoscopy with Hartman's Pouch on plaintiff. Plaintiff was discharged from Scotland Memorial Hospital by Dr.
Lanuti on 18 February 1997 with final diagnoses of hemorrhoids, a
presacral abscess, and insulin-dependent diabetes mellitus.
Plaintiff returned for a follow-up with Dr. Lanuti where Dr. Lanuti
made a diagnosis of status post rectal perforation.
On 21 May 1997, Dr. Lanuti performed a rigid proctoscopy and
lateral sphincterotomy and diagnosed anal stenosis. Plaintiff was
seen by Dr. Lanuti on 29 May 1997 and 26 June 1997 for anal
stenosis. Dr. Lanuti admitted plaintiff to Scotland Memorial
Hospital for a House Anal Advancement Flap operative procedure. On
27 August 1997, Dr. Lanuti performed another colon and rectum
operative procedure on plaintiff. On 11 September 1997, plaintiff
was seen in follow-up by Dr. Lanuti where Dr. Lanuti found a wound
abscess at the surgical incision. Plaintiff was seen again by Dr.
Lanuti on 23 September, 9 December, and 30 December 1997 for
continued complaints related to her lower gastrointestinal tract.
On 3 May 1998, plaintiff was admitted to the emergency room
where she was diagnosed with an ileus and an incarcerated ventral
hernia. Dr. Lanuti performed a repair of plaintiff's hernia. On
22 December 1998, plaintiff was seen by Dr. Delia Chiaramonte (Dr.
Chiaramonte), who reduced a ventral hernia. Dr. Chiaramonte
referred plaintiff back to Dr. Lanuti who performed a repair of
multiple incarcerated ventral hernias on 30 December 1997.
On 14 May 1999, plaintiff was again admitted to the Scotland
Memorial Hospital. Dr. Lanuti found a ventral abdominal wall
hernia with numerous small bowel loops through the defect in thesubcutaneous tissues about the umbilicus. Dr. Lanuti performed a
repair of recurrent incarcerated ventral hernias with Gortex mesh.
Plaintiff returned to Dr. Lanuti for an open wound which
communicates with the Gortex mesh and which became infected.
Plaintiff was admitted to Duke University Medical Center on 13 July
1999, and was seen by Dr. Salvatore Lettieri and Dr. John P. Grant,
who made a diagnosis of infected Marlex mesh and performed a repair
of a ventral hernia with persistent post-operative fistula.
Plaintiff was discharged from Duke University Medical Center on 28
July 1999. Plaintiff has since undergone further surgery.
B. Procedural History
Plaintiff filed suit against Dr. Lanuti in Robeson County
Superior Court on 27 June 2002 alleging Dr. Lanuti was negligent
in: (1) removing viable mucosa tissue on 15 January 1997, which he
mistakenly identified as a polyp, causing plaintiff to suffer a
rectal perforation which Dr. Lanuti failed to timely diagnose; (2)
misdiagnosing the presence of hemorrhoids when plaintiff had a
perirectal abscess; (3) failing to possess the requisite knowledge,
training, and skill necessary to perform the procedures that were
performed upon plaintiff, and failing to adequately diagnose
plaintiff's condition; (4) failing to make a timely referral for
plaintiff to a tertiary care center when he knew or should have
known that plaintiff's condition was deteriorating; and (5) using
a Gortex mesh in plaintiff's ventral hernia repairs when Dr. Lanuti
knew or should have known the use of such mesh was not indicated
for plaintiff's condition. Defendants moved to dismiss all of plaintiff's claims pursuant
to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2005). The trial court
granted defendants' motion to dismiss by order dated 4 April 2005.
Plaintiff argues the trial court erred in: (1) allowing
defendants' motion to dismiss; (2) considering matters outside the
pleadings over plaintiff's objection when considering defendants'
motion to dismiss; and (3) failing to make specific findings of
fact and conclusions of law, and refusing to consider plaintiff's
timely request for findings and conclusions under Rule 52 of the
North Carolina Rules of Civil Procedure with respect to its order
allowing defendants' motion to dismiss.
III. Motion to Dismiss
A. Standard of Review
Our standard of review of an order allowing a
motion to dismiss is whether, as a matter of
law, the allegations of the complaint, treated
as true, are sufficient to state a claim upon
which relief may be granted under some legal
theory, whether properly labeled or not.
Harris v. NCNB Nat'l Bank of N.C., 85 N.C.
App. 669, 670, 355 S.E.2d 838, 840 (1987). In
ruling upon such a motion, the complaint is to
be liberally construed, and the court should
not dismiss the complaint unless it appears
beyond doubt that [the] plaintiff could prove
no set of facts in support of his claim which
would entitle him to relief. Dixon v.
Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757,
Holloman v. Harrelson, 149 N.C. App. 861, 864, 561 S.E.2d 351, 353
(2002). A complaint may be properly dismissed for absence of lawto support a claim, absence of facts sufficient to make a good
claim, or the disclosure of some fact that necessarily defeats the
claim. Sutton v. Duke, 277 N.C. 94, 102-103, 176 S.E.2d 161, 166
(1970). If the complaint discloses an unconditional affirmative
defense which defeats the claim asserted or pleads facts which deny
the right to any relief on the alleged claim it will be dismissed.
Id. at 102, 161 S.E.2d at 166.
We review the trial court's grant of a motion to dismiss de
novo. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400,
580 S.E.2d 1, 4 (2003), aff'd, 357 N.C. 567, 597 S.E.2d 673 (2003).
B. Statute of Limitations
Defendants contend plaintiff's claims are barred by the
statute of limitations. N.C. Gen. Stat. § 1-15(c) (2005) provides
the statute of limitations for medical malpractice claims:
Except where otherwise provided by statute, a
cause of action for malpractice arising out of
the performance of or failure to perform
professional services shall be deemed to
accrue at the time of the occurrence of the
last act of the defendant giving rise to the
cause of action: Provided that whenever there
is bodily injury to the person . . . which
originates under circumstances making the
injury . . . not readily apparent to the
claimant at the time of its origin, and the
injury . . . is discovered or should
reasonably be discovered by the claimant two
or more years after the occurrence of the last
act of the defendant giving rise to the cause
of action, suit must be commenced within one
year from the date discovery is made:
Provided nothing herein shall be construed to
reduce the statute of limitation in any such
case below three years.
(Emphasis supplied). Plaintiff filed her complaint against
defendants on 27 June 2002. Absent an exception to the three-yearstatute of limitations, all of defendants' alleged negligent acts
occurred prior to 27 June 1999 and are barred. Defendants asserted
an affirmative defense of statute of limitations in their answer.
C. Continuous Course of Treatment Doctrine
Plaintiff argues she alleges facts in her complaint to show a
continuous course of treatment, which is an exception to the rule
that 'the action accrues at the time of the defendant's
negligence.' Stallings v. Gunter, 99 N.C. App. 710, 714, 394
S.E.2d 212, 215 (1990) (quoting Ballenger v. Crowell, 38 N.C. App.
50, 58, 247 S.E.2d 287, 293 (1978)).
According to this doctrine, the action accrues
at the conclusion of the physician's treatment
of the patient, so long as the patient has
remained under the continuous treatment of the
physician for the injuries which gave rise to
the cause of action. It is not necessary
under this doctrine that the treatment
rendered subsequent to the negligent act
itself be negligent, if the physician
continued to treat the patient for the
particular disease or condition created by the
original act of negligence.
To take advantage of the 'continuing course of
treatment' doctrine, plaintiff must show the
existence of a continuing relationship with
[her] physician, and . . . that [she] received
subsequent treatment from that physician.
Mere continuity of the general
physician-patient relationship is insufficient
to permit one to take advantage of the
continuing course of treatment doctrine.
Subsequent treatment must consist of either an
affirmative act or an omission, [which] must
be related to the original act, omission, or
failure which gave rise to the cause of
action. However, plaintiff is not entitled to
the benefits of the 'continuing course of
treatment' doctrine if during the course of
the treatment plaintiff knew or should have
known of his or her injuries.
Id. at 714-15, 394 S.E.2d at 215-16 (internal citations and
quotation marks omitted).
[T]he doctrine tolls the running of the statute for the
period between the original negligent act and the ensuing discovery
and correction of its consequences; the claim still accrues at the
time of the original negligent act or omission. Horton v.
Carolina Medicorp, Inc. 344 N.C. 133, 137, 472 S.E.2d 778, 780-81
(1996). Our Supreme Court stated the reason for the rule as
follows: [T]he doctrine rests on the theory that 'so long as the
relationship of [physician] and patient continued, the [physician]
was guilty of malpractice during that entire relationship for not
repairing the damage he had done.' Id. (quoting Ballenger, 38
N.C. App. at 58, 247 S.E.2d at 293).
D. Plaintiff Knew or Should Have Known
Defendants argue plaintiff should lose the benefit of the
continuous course of treatment doctrine because plaintiff knew or
should have known of . . . her injuries during the course of Dr.
Lanuti's treatment. Stallings, 99 N.C. App. at 715, 394 S.E.2d at
216. We disagree.
An injury may be readily apparent but the fact of wrong may
lay hidden. It is only when the plaintiff knew or should have
known that this wrongful act caused his injury that the plaintiff
loses the benefit of the continuing course of treatment doctrine.
Whitaker v. Akers, 137 N.C. App. 274, 280-81, 527 S.E.2d 721, 726
(2000). In Akers, this Court held, while there is no question
that the plaintiff knew he was incontinent and impotent, there issome question whether he knew or should have known that the
defendant's conduct was wrongful and whether that conduct caused
his incontinence and impotence, prior to the running of the statute
of limitations. Id. at 281, 527 S.E.2d at 726. On its face, the
complaint does not establish that plaintiff knew or should have
known that Dr. Lanuti's conduct was allegedly wrongful during Dr.
Lanuti's course of treatment and whether that conduct allegedly
caused plaintiff's injuries. Id.
E. Plaintiff's Allegations
Plaintiff's complaint alleges Dr. Lanuti treated plaintiff for
several different ailments. Plaintiff was first seen by Dr. Lanuti
for complaints of rectal bleeding, weakness, nausea, and vomiting.
Dr. Lanuti performed a colonoscopy and EGD procedure on 15 January
1997. Plaintiff alleges Dr. Lanuti was negligent in removing
viable mucosa tissue, causing plaintiff to suffer a rectal
perforation which Dr. Lanuti failed to timely diagnose. The
question remains whether Dr. Lanuti's continuing course of
treatment was related to Dr. Lanuti's initial alleged negligence.
Stallings, 99 N.C. App. at 714-15, 394 S.E.2d at 215-16.
Also, the question remains whether plaintiff's abscess, which
was allegedly undiagnosed by Dr. Lanuti, was related to Dr.
Lanuti's further and continuous treatment of plaintiff. Id.
Plaintiff also alleges Dr. Lanuti was negligent in failing to
refer her to a tertiary care center when he knew or should have
known her condition was deteriorating. A question remains whether
plaintiff remained under the continuous care of Dr. Lanuti, and Dr.Lanuti failed to refer plaintiff to a tertiary care center
throughout that time period. Id.
Plaintiff also alleges Dr. Lanuti was negligent in repairing
her hernias with a Gortex mesh that was not indicated for
plaintiff's condition. Plaintiff was subsequently seen by Dr.
Lanuti for a one (1) cm open wound that communicates with the
gortex and was infected. Whether plaintiff was under the
continuous care of Dr. Lanuti for the injuries which gave rise to
the cause of action also cannot be resolved as a matter of law from
the face of plaintiff's complaint. Id.
In ruling on a motion to dismiss, the trial court must take
all allegations in plaintiff's complaint as true, and every
reasonable inference must be drawn in favor of plaintiff.
Grindstaff v. Byers, 152 N.C. App. 288, 293, 567 S.E.2d 429, 432
(2002). In general, a complaint should not be dismissed for
insufficiency unless it appears to a certainty that plaintiff is
entitled to no relief under any state of facts which could be
proved in support of the claim. Harris v. NCNB, 85 N.C. App. 669,
671, 355 S.E.2d 838, 840 (1987) (citation omitted) (emphasis in
Here, taking plaintiff's allegations as true and reviewing
them in the light most favorable to plaintiff, it does not appear
to a certainty that plaintiff is not entitled to the benefit of
the continuing course of treatment doctrine to overcome defendants'
statute of limitations defense. Id. The trial court erred in
granting defendants' motion to dismiss.
The trial court erred in granting defendants' motion to
dismiss. Viewed in the light most favorable to plaintiff, the
allegations of the complaint are sufficient to raise an issue of
whether plaintiff is entitled to the benefit of the continuing
course of treatment doctrine to toll the expiration of the statute
of limitations. In so ruling, we express no opinion on the
ultimate merits, if any, of plaintiffs allegations and claims.
In light of our decision, it is unnecessary to address
plaintiff's remaining assignments of error. The trial court's
order is reversed and this case is remanded for further
Reversed and remanded.
Judges HUDSON and GEER concur.
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