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Medical Malpractice; Statutes of Limitation and Repose-_negligence--continuing course of
treatment doctrine
The trial court did not err in a medical malpractice case by granting summary judgment in
favor of defendant doctor based on expiration of the pertinent statute of limitations even though
plaintiffs contend the doctrine of continuing care tolled the statute of limitations and therefore
extended the period of time to file the first action, because: (1) applying N.C.G.S. §§ 1-52(16)
and 1-15(c) reveals that the three-year statute of limitations began to run on 30 November 1999,
the date of defendant's last act giving rise to the cause of action (i.e. the surgery); (2) plaintiff's
first action was filed 25 November 2003 which was outside of the three-year limitations period;
(3) the fact the subject complaint was filed within twelve months of plaintiffs' dismissal of the
first complaint cannot save this matter from summary judgment in favor of defendant; and (4) the
continuing course of treatment doctirine did not apply because there was no forecast of evidence
that the injury occasioned by the original negligence could be remedied by the treating physician.
Bruce H. Robinson, Jr., for plaintiffs-appellants.
O. Drew Grice, Jr., and Robert D. Walker, Jr., for defendants-
appellees.
LEVINSON, Judge.
Shirley and Samuel Webb (plaintiffs) appeal an order of the
trial court granting summary judgment in favor of Dr. Ira Hardy
(defendant). We affirm.
The pertinent facts may be summarized as follows: Plaintiff
(Shirley Webb) was treated by defendant for complaints of lower
back and leg pain. Defendant performed surgery consisting of
bilateral laminectomies at the L3-4 and L4-5 levels of her spine on30 November 1999. During the course of the surgical procedure,
defendant discovered that a portion of the L5 nerve root was
damaged. Consequently, defendant performed an L5 “rhizotomy,”
severing the L5 nerve root in two sections. During the
post-operative period, plaintiff experienced numbness and pain in
her left leg. Defendant initially prescribed medications, but
ultimately discharged plaintiff in December 2000 , informing her
that there was nothing else he could do for her. Defendant
referred plaintiff to two different neurosurgeons in the Fall of
2000 before referring her to UNC Hospital on 6 December 2000 , where
she was evaluated by Dr. Richard Toselli. Plaintiff asserts that
she did not know until 19 December 2000 that her L5 nerve had in
fact been severed; Toselli advised her of this as a result of his
examination. Toselli advised plaintiff that “[s]he has developed
chronic pain syndrome related to the L5 nerve root rhizotomy.”
Plaintiffs filed a complaint against defendant on 25 November
2003, alleging negligence. However, plaintiffs voluntarily
dismissed the action without prejudice on 5 April 2004 in
accordance with N.C. Gen. Stat. § 1A-1, Rule 41(a). Plaintiffs
thereafter filed the subject complaint against defendant on 22
March 2005, also alleging negligence.
Defendant filed a motion for summary judgment pursuant to N.C.
Gen. Stat. § 1A-1, Rule 56, “on the grounds that there are no
genuine issues as to any of material fact with regard to issues
involving the statute of limitations and proximate cause.” Thetrial court granted this motion on 25 April 2006. Plaintiffs
appeal.
In plaintiffs' sole argument on appeal, they contend that the
trial court erred by granting defendant's motion for summary
judgment. Plaintiffs contend that the doctrine of continuing care
tolled the statute of limitations and therefore extended the period
of time she had to file the first action. Moreover, plaintiffs
reason, so long as the first complaint was timely filed, their
second complaint would be timely filed because their taking a
voluntary dismissal of the first complaint under Rule 41(a) allowed
them to file the second complaint within twelve (12) months of
their dismissal.
Under N.C. Gen. Stat. § 1A-1, Rule 56(c)(2005), summary
judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that any party is entitled to a judgment as a
matter of law.” Thus, “'the standard of review on appeal from
summary judgment is whether there is any genuine issue of material
fact and whether the moving party is entitled to a judgment as a
matter of law. Further, the evidence presented by the parties must
be viewed in the light most favorable to the non-movant.'” Duke
Energy Corp. v. Malcolm, 178 N.C. App. 62, 64-65, 630 S.E.2d 693,
695 (2006) (quoting Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.
App. 729, 733, 504 S.E.2d 574, 577 (1998)), aff'd, 361 N.C. 111,
637 S.E.2d 538 (2006). Where a claim is barred by the running ofthe applicable statute of limitations, summary judgment is
appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 707-08, 179
S.E.2d 878, 879 (1971).
We are guided by numerous statutes of limitation. N.C. Gen.
Stat. § 1-52(16)(2005) affords a three year limitations period for
personal injury actions. Specifically, Section 1-52(16) provides,
in pertinent part, that:
Within three years an action _ (16) Unless
otherwise provided by statute, for personal
injury or physical damage to claimant's
property, the cause of action, except in
causes of actions referred to in G.S. 1-15(c),
shall not accrue until bodily harm to the
claimant or physical damage to his property
becomes apparent or ought reasonably to have
become apparent to the claimant, whichever
event first occurs. . . .
(emphasis added). N.C. Gen. Stat. § 1-15(c) (2005), in turn,
provides in pertinent part that:
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. . . .
Applying these statutes, the statute of limitations would bar the
second complaint. The surgery occurred 30 November 1999, and
plaintiffs would generally be required to file their first action
within three years thereafter. However, the first complaint was
not filed until 25 November 2003, outside this period. The latent
injury provision in G.S. § 1-15(c) does not apply because plaintiff
became aware of defendant's alleged malpractice on 19 December 2000
at the latest. This actual discovery occurred before the two year
period that is a requirement for the latent injury limitations
period contained in Section 1-15(c) to apply. Even if the latent
injury provision in Section 1-15(c) is somehow favorable to
plaintiffs as it regards the statutory period to file an action,
they make no argument whatsoever on appeal about its application,
and we will not construct an argument in this regard on their
behalf. Plaintiffs rely solely on the continuing course of
treatment doctrine to save their complaint, and we therefore limit
the following discussion to this common law doctrine.
The “continuing course of treatment” doctrine, adopted by our
Supreme Court in Horton v. Carolina Medicorp, Inc., 344 N.C. 133,
472 S.E.2d 778 (1996), is an exception to the rule that “the action
accrues at the time of the defendant's negligence.” Locklear v.
Lanuti, 176 N.C. App. 380, 384-85, 626 S.E.2d 711, 715
(2006)(internal quotation marks and citations omitted). This Court
has summarized the law concerning the continuing course of
treatment doctrine:
The doctrine applies to situations where a
doctor continues a particular course oftreatment over a period of time. The
underlying theory of the doctrine is that so
long as the doctor/patient relationship
continues, the doctor is guilty of malpractice
during the entire relationship for not
repairing the damage he did and therefore, the
cause of action arises at the conclusion of
the contractual relationship. In order to
benefit from the continuing course of
treatment doctrine a plaintiff must show both
a continuous relationship and subsequent
treatment from that physician. It is
insufficient to show the mere continuity of
the physician/patient relationship. Rather,
the subsequent treatment must be related to
the original act, omission or failure to act
that gave rise to the original claim.
Whitaker v. Akers, 137 N.C. App. 274, 278, 527 S.E.2d 721, 724-25
(2000)(internal quotations marks and citations 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, 344 N.C. at 137, 472
S.E.2d at 781. In addition, to take advantage of the doctrine, a
patient must allege the physician “could have taken further action
to remedy the damage occasioned by its original negligence.” Id.,
at 140, 472 S.E.2d at 782 (addressing sufficiency of complaint
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6))(emphasis
added)). In the context of summary judgment, applying the
principles of Horton, there must be some forecast of evidence that
the injury occasioned by the original negligence could be remedied
by the treating physician.
In their brief, plaintiffs address only the fact that
defendant continued to treat Shirley Webb, and do not address therequirement that the injury or damage be capable of remedial
treatment(s) by the physician. We conclude, even assuming a
continuing doctor/patient relationship for treatment related to the
act(s) giving rise to plaintiffs' action, that plaintiffs have not
forecast any evidence that defendant could have taken any action to
remedy the damage occasioned by the alleged original negligence.
The record is bereft of any evidence tending to illustrate
that the severed nerve in Shirley Webb's back could have been
remedied. In fact, all record evidence tends to suggest the
contrary contention. In response to a question about whether
plaintiff's macerated nerve could not be repaired, Dr. James Melisi
stated, “[t]hat's what it looks like. Yes.” In addition, Shirley
Webb testified that after a few months of post-operative treatment
under defendant's care, during which defendant prescribed certain
medications, “Dr. Hardy discharged me, he told me that there was
nothing else he could do for me[.]” And after plaintiff was
informed that her nerve had been severed by Dr. Tosselli at UNC,
she was told “nothing” could be “done at that point.” Accordingly,
there is no competent evidence to suggest that plaintiff's nerve
could be restored or repaired, and the continuing course of
treatment doctrine is therefore inapplicable.
We conclude, applying G.S.§§ 1-52(16) and 1-15(c), that the
three year statute of limitations began to run on 30 November 1999,
the date of defendant's last act giving rise to the cause of
action, i.e. the surgery. Plaintiff's first action was filed 25
November 2003, a date outside the three year limitations period. Consequently, the fact the subject complaint was filed within
twelve (12) months of plaintiffs' dismissal of the first complaint
cannot save this matter from summary judgment in favor of
defendant.
The relevant assignments of error are overruled.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
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