Opinion
No. 8321SC181
Filed 20 March 1984
Physicians, Surgeons, and Allied Professions 13 — medical malpractice — statute of limitations — latent injuries The purpose of the exception in G.S. 1-15 (c) allowing a four-year limitation period in certain medical malpractice cases is to provide for latent injuries where the physical damage to a plaintiff is not readily apparent and not for those cases in which the injury is obvious but the alleged negligence of the doctor is not. Therefore, the three-year limitation period of G.S. 1-15 (c) applied to plaintiffs medical malpractice action based on defendant's alleged negligence in performing unnecessary surgery on plaintiff, although plaintiff allegedly did not discover until more than two years after the surgery that defendant had negligently failed to advise her of the availability of alternative treatments, since the physical damage to plaintiff was readily apparent at the time of surgery.
APPEAL by plaintiff from Beaty, Judge. Order entered 26 October 1982 in Superior Court, FORSYTH County. Heard in the Court of Appeals 18 January 1984.
Badgett, Calaway, Phillips, Davis, Stephens, Peed and Brown, by Herman L. Stephens, for plaintiff appellant.
Petree, Stockton, Robinson, Vaughn, Glaze and Maready, by J. Robert Elster and Michael L. Robinson, for defendant appellee.
Judge JOHNSON dissenting.
On 16 August 1982, plaintiff instituted this action for medical malpractice against defendant alleging that he performed unnecessary surgery on her. Defendant operated on plaintiff on 1 October 1978 at which time he removed plaintiffs ovaries and other reproductive organs. Subsequently, and perhaps as early as 17 August 1981, plaintiff contends that she began to suspect that her medical condition could have been treated without surgery, and that defendant had negligently failed to advise her of alternative, less drastic treatments.
Defendant filed a responsive pleading which contained a motion to dismiss pursuant to Rule 12 (b)(6) of the North Carolina Rules of Civil Procedure on the ground that the action was barred by the three-year statute of limitations contained in G.S. 1-15 (c). By order entered 26 October 1982, the trial court allowed defendant's motion to dismiss. Plaintiff appealed.
Defendant's motion to dismiss the complaint was properly allowed under G.S. 1A-1, Rule 12 (b)(6) if the complaint has pled a fact that will necessarily defeat its claim. See Powell v. County of Haywood, 15 N.C. App. 109, 189 S.E.2d 785 (1972). Defendant argues that the complaint shows on its face that plaintiff's cause of action accrued more than three years prior to the institution of this action and is thus barred by G.S. 1-15 (c). That statute provides as follows, in pertinent part:
"(c) 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. Provided further that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action. . . ."
G.S. 1-15 (c).
This portion of G.S. 1-15 (c) sets forth both a three-year and a four-year period of limitation. The four-year statutory period applies only to those cases in which the injury to the plaintiff is not, nor should have been, discovered within two years of accrual, that is, within two years of the defendant's last act giving rise to the cause of action. See Flippin v. Jarrell, 301 N.C. 108, 118-119, 270 S.E.2d 482, 489 (1980). The last act of the defendant here was the surgery performed on 1 October 1978, thus plaintiff's cause of action accrued on that date. If the plaintiff suffered any injury it was what she contends is the unnecessary surgery and the removal of her ovaries and other reproductive organs.
Plaintiff contends that the four-year limitation period, rather than the three-year period, applies to her action because she did not discover her injury until more than two years after her surgery, in that she did not discover that defendant had negligently failed to advise her of the availability of alternative treatments for her condition until 17 August 1981. We disagree. Plaintiff was aware of the physical injury she had suffered, the removal of her reproductive organs, from the time of surgery. She was not aware until 17 August 1981 of what she contends is the defendant's negligence. The clear purpose of the exception in G.S. 1-15 (c) allowing for a four-year limitation period in certain cases is to provide for latent injuries where the physical damage to a prospective plaintiff is not readily apparent, and not for those cases in which the injury is obvious but the alleged negligence of the doctor is not. We do not believe our legislature intended to equate the discovery of injury with the discovery of negligence.
Furthermore, plaintiff cannot reasonably maintain that her injury originated under circumstances making the injury not readily apparent at the time it occurred. At any point before or after her surgery, plaintiff through the use of reasonable diligence could have obtained a second medical opinion as to possible alternative treatments for her condition, and thus discovered the defendant's alleged negligence.
We do not believe Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287 (1978) governs although there is some language in it favorable to the plaintiff. In that case the plaintiff contended that the defendant's treatment caused him to become addicted to narcotic drugs. The treatment did not stop until a time within the applicable statute of limitations. In this case the defendant's treatment of the plaintiff was complete more than three years before the action was commenced. We hold the trial court properly allowed defendant's motion to dismiss.
Affirmed.
Chief Judge VAUGHN concurs.
Judge JOHNSON dissents.