Opinion
No. COA12–581.
2013-02-19
Mary Linda STEPP, Plaintiff v. AWAKENING HEART, P.A., Nancy L. Tarlow, Isle of Sky Chiropractic, PLLC and Jennifer J. Harris, Defendants.
Karolyi–Reynolds, PLLC, by James O. Reynolds, for plaintiff-appellant. Van Winkle Buck Wall Starnes & Davis, P.A. by Dale A. Curriden, for defendant-appellees Awakening Heart and Nancy L. Tarlow.
Appeal by plaintiff from order entered 16 April 2010 by Judge Dennis J. Winner in Henderson County Superior Court. Heard in the Court of Appeals 10 October 2012. Karolyi–Reynolds, PLLC, by James O. Reynolds, for plaintiff-appellant. Van Winkle Buck Wall Starnes & Davis, P.A. by Dale A. Curriden, for defendant-appellees Awakening Heart and Nancy L. Tarlow.
No brief filed for defendants Isle of Sky Chiropractic, PLLC and Jennifer J. Harris.
CALABRIA, Judge.
Mary Linda Stepp (“plaintiff”) appeals from an order granting summary judgment in favor of defendants Awakening Heart, P.A. (“Awakening Heart”) and Nancy L. Tarlow, D.C. (“Tarlow”). Defendants Jennifer J. Harris, D.C. (“Harris”) of Isle of Sky Chiropractic, PLLC (“Isle of Sky”) along with Tarlow and Awakening Heart, are collectively “defendants” who were also granted summary judgment, however they are not parties to the appeal. We affirm.
I. Background
On 1 May 2004, plaintiff sustained injuries from a motor vehicle collision (“MVC”). On 5 May 2004, plaintiff sought treatment for muscle spasms in her neck as well as tingling, soreness and numbness in her hands and arms from Tarlow, a chiropractor, at Awakening Heart. Tarlow's treatment plan included adjustments to plaintiff's wrists to relieve the tingling, pain and numbness. Plaintiff continued treatment with Tarlow until she was discharged on 1 November 2004. Plaintiff revisited Tarlow on 14 March 2005 to be examined for insurance settlement purposes.
Subsequently, plaintiff sought treatment for her wrist condition with Harris, of Isle of Sky. Plaintiff remained under Harris and Isle of Sky's care from 12 August 2005 until 30 December 2005. Plaintiff claims both Tarlow and Harris diagnosed her condition as carpal tunnel syndrome.
On 1 May 2007, plaintiff executed a general release settling all claims against the insured tortfeasor from the 1 May 2004 incident. However, on 13 November 2007, plaintiff sought treatment from Carolina Hand Surgery Associates and was diagnosed with permanent post-traumatic degenerative arthrosis of both wrists.
On 14 August 2008, the trial court granted plaintiff's motion to extend the statute of limitations in a Medical Malpractice Action and extended the time until 10 December 2008. Plaintiff filed a complaint against defendants on 9 December 2008, alleging failure to provide the applicable standard of chiropractic care in the treatment that resulted in permanent injury to her wrists. On 9 June 2009, Tarlow and Awakening Heart filed an answer and motions to dismiss, pursuant to Rule 12(b)(5) for insufficiency of service of process and 12(b)(6) for failure to state a claim upon which relief can be granted. Subsequently, Tarlow and Awakening Heart filed a motion for summary judgment, claiming no genuine issue of material fact based on the general release plaintiff signed as well as the applicable statutes of limitation and repose. Harris and Isle of Sky also filed a motion for summary judgment.
On 16 April 2010, the trial court granted Tarlow and Awakening Heart's motion for summary judgment, but denied the motion as to Harris and Isle of Sky. Plaintiff appealed. This Court dismissed plaintiff's appeal as interlocutory on 5 July 2011. Stepp v. Awakening Heart, P.A., –––N.C.App. ––––, 714 S.E.2d 210, 2011 N.C.App. LEXIS 1431, 2011 WL 2731238 (2011) (unpublished). On 13 January 2012, Harris and Isle of Sky again filed a motion for summary judgment. On 9 February 2012, the trial court granted Harris and Isle of Sky's motion for summary judgment, dismissing plaintiff's complaint with prejudice. Plaintiff appeals the 16 April 2010 order granting summary judgment to Tarlow and Awakening Heart.
II. Standard of Review
Summary judgment is appropriate if “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.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2011). When reviewing an order of summary judgment, the standard of review is de novo. Builders Mut. Ins. Co. v. North Main Constr. Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006).
III. Summary Judgment
Plaintiff argues that the trial court erred in granting defendant's motion for summary judgment because the timing raises a genuine issue of material fact regarding the date her claims accrued. Therefore, the primary issue on appeal is whether plaintiff timely filed her action against Awakening Heart. We disagree.
The statute of repose for a medical malpractice action shall in no event “be commenced more than four years from the last act of the defendant giving rise to the cause of action.” N.C. Gen.Stat. § 1–15(c) (2011). Thus, “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) (citation omitted). However, an exception to this rule is the “continuing course of treatment” doctrine which indicates that “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.” Id.
To take advantage of the continuing course of treatment doctrine, plaintiff must show the existence of a continuing relationship with his physician, and ... that he 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.
Id. at 715, 394 S.E.2d at 216 (internal quotations and citations omitted).
In the instant case, plaintiff sought treatment from Tarlow after sustaining injuries in an automobile collision in May 2004. Plaintiff was discharged on 1 November 2004, because Tarlow determined and communicated to plaintiff that she could not provide any further treatment for her. In February 2005, plaintiff contacted Tarlow's office to schedule a final exam and “explain [ed] that [she] required another examination of [her] injuries from the MVC to pursue settlement of [her] claims arising out of the MVC.” On 14 March 2005, plaintiff saw Tarlow for the final evaluation, but “[t]here wasn't a lot said or done ... [Tarlow] tested [plaintiff's] reflexes or whatever, and [plaintiff] was gone.” Plaintiff confirmed that no treatment was rendered at the evaluation and that she believed that Tarlow “had done everything she could do for [her].” On 9 December 2008, plaintiff filed a complaint against defendants.
Plaintiff argues that the “continuing course of treatment” doctrine applies and therefore the statute of repose began on 14 March 2005, which was plaintiff's last appointment with Tarlow. Since plaintiff filed her action against defendants on 9 December 2008, within four years of 14 March 2005, plaintiff contends that the action is not barred by the statute of repose. However, Tarlow and Awakening Heart contend that the statute of repose began to run no later than 1 November 2004, because on that day, Tarlow informed plaintiff that she would not benefit from continued chiropractic care, except for symptomatic relief, and discharged her. While plaintiff claims that her care “continued” until March 2005, her deposition testimony confirms that she was aware in November 2004 that Tarlow discharged her from care:
Q. On October 26th of 2004, it looks like it's circled that you'll be seen two times over the next week and then be discharged from care. Do you recall having any discussion with Dr. Tarlow about your being discharged from care either on or around the last couple of times you saw her?
A. The last time I saw Dr. Tarlow after she adjusted me and I had asked her to adjust my hands, I told her that I did not want to stop treatment because I was still having pain and it was hurting. And what she did was, she turned around and looked at me and she said, I know you don't want to stop. She walked out the door.
Q. And do you know what visit you're referring to?
A. That was the last one there.
Q. The November 1st of 2004?
A. Yes.
Q. Had there been some discussion prior to that about whether or not you would continue getting care for your wrists?
A. No.
Q. What—and let me make sure I have it straight. You indicated—well, did she indicate to you on that day that she was discharging you from her care?
A. I knew I was being discharged. And after she had adjusted me and I was getting ready to leave and she was getting ready to leave, she had adjusted the wrists and the neck and that sort of stuff. I told her, I said, I don't want to stop treatment, I'm still having pain. And she turned around as she was walking out and looked at me and said, I know you don't want to stop.
Q. And what did you understand her to mean by that?
A. I had no clue, other than she was through treating me. She had done what she could do, and that was that.
Q. How did you—you mentioned that you knew that you were being discharged. How did you know that you were being discharged?
A. We had discussed it I'm sure.
Q. What do you recall her saying about that?
A. Well, this was whenever the treatment would end. I mean, that was—she had done everything she could do.
Q. And she told you that some time on or
A. In our conversations, yeah.
Q. Some time on or prior to November 1st of 2004?
A. Yes, probably a week or two before that, maybe a week before the last treatment.
Apparently, neither party expected plaintiff's treatment to continue after the 1 November 2004 visit, and the only time plaintiff saw Tarlow after 1 November 2004 was her 14 March 2005 visit. Both Tarlow and plaintiff confirmed that the insurer requested an “exam” for the purpose of settling plaintiff's personal injury claim from the MVC. In addition, both confirmed that plaintiff was examined but not treated on 14 March 2005 and no subsequent treatment was performed. Since plaintiff failed to show that she received treatment from Tarlow and Awakening Heart after 1 November 2004, she cannot “take advantage of the continuing course of treatment doctrine.” Stallings, 99 N.C.App. at 715, 394 S.E.2d at 216. Therefore, we conclude that the “last act of the defendant giving rise to the cause of action” occurred on 1 November 2004. N.C. Gen.Stat. § 1–15(c) (2011). Thus, plaintiff was required to file her action prior to 1 November 2008. Since plaintiff filed her action on 8 December 2008, and that date is more than four years after 1 November 2004, her claim against Tarlow and Awakening Heart is barred by the statute of repose. We affirm the trial court's order awarding summary judgment.
Plaintiff disputes that the sole purpose of the 14 March 2005 visit was to prepare a report for the insurance company regarding plaintiff's MVC because “the record and Awakening Heart's own treatment records do not reveal the existence of any insurance report by Awakening Heart, nor that Awakening Heart had any direct or indirect communications with the insurance company.” Plaintiff is mistaken. A document entitled “Patient Notes for Mary L. Stepp dated 19 November 2009” (“the notes”) indicates that Awakening Heart contacted the insurance company on seven separate occasions concerning the status of plaintiff's claim beginning on 13 December 2004. On 18 March 2005, the notes indicate that Awakening Heart “mailed itemized statement and office notes with lien to State Farm Insurance Co....” The final entry on the notes is dated 30 August 2005. Furthermore, both plaintiff and Tarlow indicated that the purpose for plaintiff's last visit was an examination of her injuries for the purpose of settling the insurance claim from her MVC.
Plaintiff also contends that there is a genuine issue of material fact as to whether at least one actionable breach of the standard of care occurred during each and every visit with Tarlow that would support a claim for malpractice “given the uncontroverted allegations of insufficient examination, failure to diagnose, and failure to keep a proper treatment record....” Thus, plaintiff claims that the 14 March 2005 visit, standing on its own, supports a claim for malpractice and therefore the statute of repose does not apply. However, plaintiff is mistaken. The negligence allegations are not uncontroverted. It was documented that the only purpose of the 14 March 2005 visit was to evaluate plaintiff so that she could settle her claim with the insurance company, not to diagnose or treat plaintiff. Plaintiff fails to show how this final visit, after plaintiff's treatment with Tarlow had concluded, should give rise to an independent claim for malpractice.
Finally, plaintiff maintains her execution of a general release with the insured tortfeasor did not release Tarlow and Awakening Heart for negligent treatment of injuries. Tarlow and Awakening Heart's motion for summary judgment was based on the statute of limitations, the statute of repose and plaintiff's claim that the release operates as a bar to the claims she asserts in this action. Although the trial court's order granting summary judgment did not address the release or any other basis for its decision, on appeal, plaintiff relies on Galloway v. Lawrence, 263 N.C. 433, 139 S.E.2d 761 (1965). However, we find that the trial court properly granted summary judgment because the action was barred by the statute of repose. Therefore, it is unnecessary to determine if Galloway applies or to discuss plaintiff's other arguments in the instant case.
IV. Conclusion
Plaintiff failed to timely file her claim and thus, the trial court properly granted defendants' motion for summary judgment, as plaintiff's claim was barred by the statute of repose.
Affirmed.
Report per Rule 30(e).