Callahan v. Rogers

• Decision Date: 15 March 1988
• Docket Number: No. 8729SC340,8729SC340
• Citation: 365 S.E.2d 717,89 N.C.App. 250
• Parties: Flossie S. CALLAHAN v. H.R. ROGERS.
• Court: North Carolina Court of Appeals

Page 717

365 S.E.2d 717

89 N.C.App. 250

Flossie S. CALLAHAN v. H.R. ROGERS.

No. 8729SC340.

Court of Appeals of North Carolina.

March 15, 1988.

Swain, Stevenson and Freeman, P.A. by Joel B. Stevenson, Asheville, for plaintiff-appellant.

Dameron and Burgin by Charles E. Burgin, Marion, for defendant-appellee.

JOHNSON, Judge.

Plaintiff contends that the trial court erred in granting defendant's motion to dismiss her action based on the three-year statute of limitations, where the evidence tended to show that plaintiff filed the action pursuant to the continued course of treatment exception. We agree.

When the trial court granted defendant's motion to dismiss, it also considered plaintiff's pre-trial deposition, in addition to the pleadings. Thus, defendant's motion to dismiss was converted to a motion for summary judgment when matters outside the pleadings were presented to and not excluded by the court. Roach v. City of Lenoir, 44 N.C.App. 608, 261 S.E.2d 299 (1980); Fowler v. Williamson, 39 N.C.App. 715, 251 S.E.2d 889 (1979). "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." Ballenger v. Crowell, 38 N.C.App. 50, 53, 247 S.E.2d 287, 290 (1978). The rule "allows quick and final disposition of claims where there is no real question as to whether plaintiff should recover, or where the defendant has established a complete defense." Oakley v. Little, 49 N.C.App. 650, 652, 272 S.E.2d 370, 372 (1980).

The statute of limitations operates to vest a defendant with the right to rely on it as a defense, and the court has no discretion when considering whether a claim is time-barred. Congleton v. City of Asheboro, 8 N.C.App. 571, 174 S.E.2d 870, cert. denied, 277 N.C. 110 (1970). The applicable statute of limitations in this action is N.C.G.S. sec. 1-15(c) which states in 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, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage 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 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.

Thus, G.S. 1-15(c) establishes two separate grounds for malpractice: (1) malpractice arising out of the performance of professional services; and (2) the failure to perform professional services. Schneider v. Brunk, 72 N.C.App. 560, 324 S.E.2d 922 (1985). The statute further provides that for both actions and omissions, the cause of action accrues and the statute of limitations begins to run at the time of defendant's last act giving rise to the cause of action. Mathis v. May, 86 N.C.App. 436, 358 S.E.2d 94 (1987).

Under the facts in the case sub judice, the alleged last act or performance by defendant on plaintiff was the surgical operation that was completed on 22 January 1981 so that plaintiff had until 22 January 1984 to file her action. Plaintiff did not file her complaint until 18 June 1984, and contends that she is not barred by the three year statute of limitations because her case falls within the continued course of treatment exception. Ballenger, supra. Plaintiff contends that the evidence establishes that defendant doctor continued to provide treatment for her following surgery by discussing with her, during her postoperative visits with him, the problems plaintiff was experiencing with her hip; by performing a fluoroscope examination on 24 June 1981; and also by discussing with her the results of the fluoroscope examination. According to plaintiff's theory, Dr. Rogers' last act occurred on 24 June 1981, so that plaintiff had until 24 June 1984 in which to file her action. Since she filed her complaint on 18 June 1984, plaintiff argues that she has filed within the statutory period. We agree.

The continued course of treatment doctrine "applies to situations in which the doctor continues a particular course of treatment over a period of time.... Where the injurious consequences arise from a continuing course of negligent treatment ... the statute does not ordinarily begin to run until the injurious treatment is terminated.... The malpractice in such cases is regarded as a continuing tort because of the persistence of the physician or surgeon in continuing and repeating the wrongful treatment." Ballenger, 38 N.C.App. at 58, 247 S.E.2d at 293 (emphasis supplied and citation omitted).

In Stanley v. Brown, 43 N.C.App. 503, 259 S.E.2d 408 (1979), plaintiff, following surgery and discharge from the hospital, discovered that something was wrong. On two postoperative visits to the surgeon, plaintiff was advised that the condition was something with which "she must live." Following that last visit, plaintiff saw another physician who informed her that defendant's operation had been performed incorrectly. She underwent an operation within ten months of the first one. She testified that "when Dr. Brown told me I was going to have to live with it, I decided he was not going to be my doctor any more, because he left me in that condition and I was satisfied that h...