Ballenger v. Crowell

• Decision Date: 19 September 1978
• Docket Number: No. 7727SC825,7727SC825
• Citation: 38 N.C.App. 50,247 S.E.2d 287
• Court: North Carolina Court of Appeals
• Parties: , 16 A.L.R.4th 989 Ralph D. BALLENGER v. Lester A. CROWELL, Jr.

Page 287

247 S.E.2d 287

38 N.C.App. 50, 16 A.L.R.4th 989

Ralph D. BALLENGER v. Lester A. CROWELL, Jr.

No. 7727SC825.

Court of Appeals of North Carolina.

Sept. 19, 1978.

Bailey, Brackett & Brackett by Kermit D. McGinnis, Charlotte, for plaintiff-appellant.

Golding, Crews, Meekins, Gordon & Gray by John G. Golding and C. Bryon Holden, Charlotte, for defendant-appellee.

CLARK, Judge.

A motion for summary judgment may be granted only when there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Lambert v. Duke Power Co., 32 N.C.App. 169, 231 S.E.2d 31 (1977). All evidence before the court must be construed in the light most favorable to the non-moving party. The slightest doubt as to the facts entitles the non-moving party to a trial. Miller v. Snipes, 12 N.C.App. 342, 183 S.E.2d 270, Cert. denied 279 N.C. 619, 184 S.E.2d 883 (1971). It is only in the exceptional negligence case that the rule should be invoked. Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147, Cert. denied 279 N.C. 395, 183 S.E.2d 243 (1971).

In the case Sub judice, the court did not specify the grounds upon which the defendant's motion for summary judgment was granted. Therefore, every possible basis for the court's ruling must be examined in order to determine whether the motion was properly granted. We find that there are three potential grounds upon which the court's ruling could be supported, any one of which would entitle the defendant to summary judgment. First, that there was no issue of fact as to the negligence of the defendant; second, that there was no issue of fact as to the contributory negligence of the plaintiff; and third, that the statute of limitations barred plaintiff's action as a matter of law. We will consider these grounds in that order.

The court's grant of summary judgment could be upheld if it were clear as a matter of law that defendant was not negligent in continuing and increasing plaintiff's addiction. Negligence is, as noted earlier, rarely an issue appropriate for disposition by summary judgment. Where diverse inferences can be drawn the question of negligence is for the trier of fact. Olan Mills, Inc. v. Terminal, Inc., 273 N.C. 519, 160 S.E.2d 735 (1968). In malpractice cases, plaintiff's burden of proof at trial is heavy. He must demonstrate by the testimony of a qualified expert that the treatment administered by defendant was in negligent violation of the accepted standard of medical care in the community and that defendant's treatment proximately caused the injury. See 10 Strong's N.C. Index 3d, Physicians and Surgeons, § 15, Et seq. In the case Sub judice, Dr. Griffin did not state that defendant's treatment violated standard medical practice. But he did state that it was not normal and was not recommended. There was some evidence presented which tended to show that standard medical practice no longer considered addiction necessary and that defendant should have known more care was required than the mere writing of ever-increasing prescriptions. Although not a drug addiction case, Sharpe v. Pugh, 270 N.C. 598, 155 S.E.2d 108 (1967), stated that a doctor could be held negligent for prescribing a dangerous drug as a remedy for ailments for which it was neither necessary nor suited if he violated accepted standards and knew actually or constructively that he was violating them. There was sufficient evidence presented at the hearing to raise the material issues of fact of whether standard practice no longer regarded addiction as necessary in the treatment of plaintiff's disease, and whether defendant knew or should have known that narcotics were not necessary to control plaintiff's pain to overcome a motion for summary judgment on the grounds of no negligence as a matter of law.

Like negligence, contributory negligence is rarely appropriate for summary judgment. There are no malpractice cases in North Carolina dealing with the issue of whether drug addiction is actionable when it is shown to be unnecessary even though the addiction was accepted by the patient. But several cases outside our jurisdiction have made it quite clear that a patient is to be permitted to rely on his doctor without becoming a culpable partner of what turns out to be his doctor's negligence. The fact that the patient becomes addicted, continues in the doctor's care and knowingly continues his addiction will not make him contributorily negligent unless he himself is doing something wrong or unless he knows his doctor is negligent. In the case Sub judice, plaintiff believed that he had to be addicted for the rest of his life because defendant had told him so. That, once he became an addict, he began to behave like one, and wheedled prescriptions, is not surprising and does not make him contributorily negligent. In a Massachusetts case, King v. Solomon, 323 Mass. 326, 81 N.E.2d 838 (1948), a physician addicted his patient to morphine in the absence of a diagnosis that her painful condition could not be cured. Plaintiff-patient actively sought the drug. The court ruled that the fact that plaintiff knew she was addicted and actively sought the narcotic did not make her contributorily negligent. In a New Mexico case, Los Alamos Medical Center, Inc. v. Coe, 58 N.M. 686, 275 P.2d 175 (1954), the plaintiff became addicted to drugs as a result of her doctor's negligence. The plaintiff had continuing confidence in her doctor, and was assured by her doctor that there was no cause for alarm. Plaintiff, in that case, often begged for the drugs. The court found that she had the right to rely on her doctor and was not contributorily negligent. Defendant's attempts to distinguish these cases from the case Sub judice are unsuccessful and point clearly to disputed issues of fact, such as whether plaintiff refused to go to the hospital when requested by defendant, and whether defendant's threats of refusing drugs were effectual and sufficient to render plaintiff contributorily negligent in continuing his addiction. Again we must reiterate that summary judgment must never be granted when there are Any disputed issues of material fact. Plaintiff could not possibly be found guilty of contributory negligence as a matter of law.

The court's grant of summary judgment could also be upheld if plaintiff's action was barred by the three-year statute of limitations governing medical malpractice actions. G.S. 1-52. Plaintiff contends that the action accrued at the termination of the physician-patient relationship in 1974. Defendant contends that the plaintiff's cause of action accrued at the time the plaintiff first became addicted to drugs.

The time at which an action for malpractice accrues is currently governed by G.S. 1-15(b)-(c). Subsection (b) governs those malpractice cases in which the "injury, defect or damage (is) not readily apparent to the claimant at the time of its origin. . . ." This subsection, which governs "latent injury" type cases, provides that the action accrues at the time the injury is discovered, provided that, the action must be brought within 10 years of the last act of the defendant. This amendment to G.S. 1-15 was effective 22 July 1971.

Subsection (c), effective 1 January 1977, provides that:

"(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 . . . the injury, loss, defect or damage (is) not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made . . . ."

These amendments do not apply retroactively to revive actions already barred at common law, nor do they affect pending litigation. They do, however, apply to those cases which have not yet accrued, or accrued within three years immediately preceding the effective date of the amendments. Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C.App. 689, 198 S.E.2d 88 (1973). See Shuler v. Dyeing Machine Co., 30 N.C.App. 577, 227 S.E.2d 634, Cert. denied 291 N.C. 177, 229 S.E.2d 690 (1976). In the case Sub judice, the prescription of narcotic drugs spanned the years from 1960 to 1974. The case, however, was pending at the time subsection (c) was enacted and so that section cannot apply. See Nationwide Mut. Ins. Co., supra. Nor does subsection (b) apply, since that section is applicable to the "latent injury" type case, and not those cases such as the one now before us which involve a course of continued negligent treatment. Therefore, the determination of this case will be controlled by case law.

The landmark North Carolina case, decided prior to the adoption of G.S. 1-15 which determines when the statute of limitations for a malpractice action commences, is Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957). In Shearin, the plaintiff's appendix was removed by the defendant on 20 July 1951. After the operation, plaintiff returned to the defendant's care for a six- and twelve-month checkup. On 15 November 1952, the plaintiff complained to the defendant of severe abdominal pain. At defendant's request, X rays were taken. On 18 November 1952, the defendant notified the plaintiff that a lap-pack had been left in plaintiff's abdomen during the operation in 1951. The next day, the defendant operated on the plaintiff and removed the lap-pack. Plaintiff filed an action for malpractice on 14 November 1955. The defendant pled the statute of limitations as a bar. Plaintiff contended that the action accrued on 15 November 1952 when the plaintiff discovered the existence of the lap-pack. The court in Shearin specifically rejected the...