Ragsdale v. Whitley, COA17-860

Citation257 N.C.App. 336,809 S.E.2d 368
Decision Date02 January 2018
Docket NumberNo. COA17-860,COA17-860
Parties Krista RAGSDALE, Guardian Ad Litem for Alec Seeburger, Plaintiff, v. Dr. John M. WHITLEY and Cumberland County Hospital System, Inc., d/b/a Cape Fear Valley Health System, Defendants.
CourtCourt of Appeal of North Carolina (US)

Coy E. Brewer, Jr. and Allen W. Rogers, Fayetteville, for plaintiff-appellant.

Parker Poe Adams & Bernstein LLP, Raleigh, by Michael J. Crook and Patrick M. Meacham, for defendant-appellees.

ARROWOOD, Judge.

Krista Ragsdale ("Krista"), guardian ad litem for Alec Seeburger ("Alec"), ("plaintiff") appeals from an order granting summary judgment in favor of Dr. John Whitley ("Dr. Whitley") and Cumberland County Hospital System, Inc., d/b/a Cape Fear Valley Health System ("defendants"). For the reasons stated herein, we reverse the order of the trial court and remand for further proceedings.

I. Background

On 20 May 2015, Alec filed a complaint for medical malpractice against Dr. Whitley and Cape Fear Valley Neurosurgery

d/b/a Cape Fear Valley Health System Specialty Group, LLC f/k/a Cape Fear Valley Health System, Inc. On 12 November 2015, Alec voluntarily dismissed the complaint pursuant to Rule 41 of the North Carolina Rules of Civil Procedure.

On 7 December 2015, plaintiff was appointed as guardian ad litem ("GAL") for Alec. In an order filed 31 December 2015, the trial court stated that "[i]t appears to the Court from [Krista's] affidavit and the statement from his treating physician that Alec [ ] is incapable of conducting his own affairs and is entitled to the appointment of a Guardian ad Litem."

On 31 December 2015, plaintiff refiled the complaint against defendants. On 5 April 2016, plaintiff filed an amended complaint. Plaintiff alleged as follows: Alec was born on 19 January 1996 and was until his eighteenth birthday on 19 January 2014, "a minor and was then, continuously has been and is presently under a disability preventing him from initiating this civil action for medical malpractice and professional negligence by the Defendants in this case." Plaintiff alleged that her claim was filed within the applicable statute of repose in that the last act giving rise to the cause of action occurred on 12 February 2012, when defendants’ negligent treatment of Alec was discovered. In February of 2011, Alec began experiencing peripheral vision difficulties and was later diagnosed with having a large pituitary adenoma

. A blood test to determine prolactin levels of the large pituitary adenoma could determine whether it should be treated surgically or medically. Plaintiff alleged that Dr. Whitley, Alec's neurosurgeon, when evaluating the need for and extent of brain surgery, and while treating Alec after surgery, negligently failed to assess the nature of the adenoma by failing to order a blood test to determine whether the pituitary adenoma could be treated medically instead of surgically.

Alec underwent surgery with Dr. Whitley on 6 March 2011. The surgery resulted in substantial swelling of Alec's brain, proximately causing a severe stroke

and "severe, permanent, and debilitating neurological damage in addition to the severe, permanent, and debilitating neurological damage previously caused by the extensive and invasive brain surgery performed by Defendant Whitley." Plaintiff further alleged that surgery was unnecessary and inappropriate because Alec had a prolactinoma which should have been treated medically rather than surgically. Dr. Whitley's failure to order a blood test was a departure from the required or expected standard of care. Dr. Whitley continued to treat Alec until or about 12 February 2012, during which time Alec "experienced great pain and suffering, inability to see or walk and substantial neurological deficits."

Plaintiff alleged that in February of 2012, Alec began receiving medical services from Dr. Gerald Grant ("Dr. Grant"). Dr. Grant ordered a blood test which established that Alec's "tumor was a prolactinoma

which was treatable medically." Plaintiff alleged that Dr. Whitley's surgery and the delay in beginning appropriate medical treatment of the tumor had proximately caused "severe and permanent neurological and physiological damage" to Alec.

On 6 May 2016, defendants filed an answer to the amended complaint. On 27 February 2017, defendants also filed a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure.

In a 16 May 2017 order, the trial court granted defendantsmotion for summary judgment and recited the basis of its determination:

IT APPEARING TO THE COURT that this is a medical malpractice action pursuant to N.C.G.S. § 90-21.12 and that the statute of limitations for this matter was governed by N.C.G.S. § 1-15(c) and § 1-17(b) ;
... that [Alec] was born on January 19, 1996;
... that the events giving rise to the Plaintiff's Complaint occurred on or about March 7, 2011;
... that the Plaintiff was 18 years old as of January 19, 2014, and 19 years old as of January 19, 2015;
... that [Alec] filed the initial Complaint in his own name without the appointment of a guardian ad litem on May 20, 2015; the initial Complaint contained no allegations or representations that Plaintiff was incompetent, and that paragraph 10 of the initial Complaint stated, "This claim for relief is filed within the applicable Statute of Limitations because [Alec] until January 19, 2014 was a minor and the three year statute of limitations began running on that date." Therefore, it appears to the Court that the initial Complaint was filed after the expiration of the applicable statute of limitations, and while the injured Plaintiff was under no judicially recognizable disability, nor incompetent.
... that Plaintiff voluntarily dismissed his Complaint without prejudice on November 12, 2015. At no time prior to the dismissal of the Complaint did the Plaintiff allege or represent to the Court that the Plaintiff was not competent.
... that the Plaintiff re-filed a Complaint on December 31, 2015, after the appointment of a guardian ad litem, and that, for the first time, Plaintiff alleged in the re-filed Complaint that he was under a disability. The Plaintiff never was adjudicated incompetent pursuant to the purposes and intent of N.C.G.S. Chapter 35A;
... that a judicial determination of the Plaintiff's competency was never made pursuant to N.C.G.S. Chapter 35A and the Plaintiff failed to demonstrate or otherwise meet its burden of proof with regard to Plaintiff's competency at the time of the filing of the original Complaint, at the time of the re-filing of the Complaint, and as of the time of the hearing on Defendant's Motion for Summary Judgment;
... that the current action, like the initial Complaint, was filed after the expiration of the applicable statute of limitations, that the injured Plaintiff never has been adjudicated incompetent for the purposes of N.C.G.S. Chapter 35A, and that therefore there is no genuine issue of material fact as to whether the statute of limitations is a bar to the injured Plaintiff's claims.

On 5 June 2017, plaintiff filed timely notice of appeal.

II. Discussion

On appeal, plaintiff argues that the trial court erred in granting summary judgment in favor of defendants. Specifically, plaintiff contends that the trial court erred by determining that an adjudication of incompetency pursuant to Chapter 35A of the North Carolina General Statutes was necessary to toll the statute of limitations. In addition, plaintiff contends that there was a genuine issue of material fact as to whether Alec had been incompetent since his eighteenth birthday until 7 December 2015, the date his GAL was appointed. We agree.

"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.’ " In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal , 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007) ). "The evidence produced by the parties is viewed in the light most favorable to the non-moving party." Hardin v. KCS Intern., Inc. , 199 N.C.App. 687, 695, 682 S.E.2d 726, 733 (2009) (citation omitted).

In this appeal, we must first determine whether the trial court erred by determining that plaintiff must have obtained an adjudication of incompetency under Chapter 35A in order for the applicable statute of limitations to be tolled.

"Questions of statutory interpretation are questions of law[.] ... The primary objective of statutory interpretation is to give effect to the intent of the legislature. The plain language of a statute is the primary indicator of legislative intent." First Bank v. S & R Grandview, L.L.C. , 232 N.C.App. 544, 546, 755 S.E.2d 393, 394 (2014) (internal citations omitted).

When the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required. However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment.

Diaz v. Division of Social Services , 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006) (internal citations omitted).

The statute of limitations for "a cause of action for malpractice arising out of the performance of or failure to perform professional services" is three years from the date the action accrued. The limitations period begins to accrue at "the time of the occurrence of the last act of the defendant giving rise to the cause of action[.]" N.C. Gen. Stat. § 1-15(c) (2015). Actions on behalf of minors for malpractice are subject to N.C. Gen. Stat. § 1-15(c) ’s limitations periods, "except that if those time limitations expire before the minor attains the full age of 19 years, the action may be brought before the minor attains the full...

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