Flippin v. Jarrell, No. 102

Docket NºNo. 102
Citation301 N.C. 108, 270 S.E.2d 482
Case DateOctober 07, 1980
CourtUnited States State Supreme Court of North Carolina

Page 482

270 S.E.2d 482
301 N.C. 108
Brian FLIPPIN, by his Guardian Ad Litem, Melvin F. Wright,
Jr., and Sandra Flippin
v.
Dr. William Eric JARRELL.
No. 102.
Supreme Court of North Carolina.
Oct. 7, 1980.

White & Crumpler by Fred G. Crumpler, Jr., Harrell Powell, Jr., Edward L. Powell, and G. Edgar Parker, Winston-Salem, for plaintiff.

Womble, Carlyle, Sandridge & Rice by H. Grady Barnhill and William C. Raper, Winston-Salem, for defendant.

EXUM, Justice.

This appeal presents two questions. First, whether the professional malpractice statute of limitations found in G.S. 1-15(c) 4 can be constitutionally applied to bar the plaintiff's claim under the facts of this case. We hold, for reasons given, that it cannot. Second, whether plaintiff, the child's divorced mother, has standing to bring this action for medical expenses and loss of the child's services allegedly resulting from injury to the child caused by defendant's negligence. 5 We hold that the mother has standing.

[301 N.C. 110] I

Plaintiff alleges that Brian Flippin, her minor son, had a condition at birth known as phenylketonuria (PKU), an inborn or inherited metabolism defect which if undetected and untreated usually results in mental retardation. Defendant physician, a pediatrician who attended Brian at birth, allegedly negligently failed to diagnose and treat this condition. Brian was later diagnosed as being mentally retarded due to PKU. Defendant in part answered plaintiff's claim for medical expenses and loss of services by pleading the statute of limitations. After some discovery proceedings, defendant moved for summary judgment upon that ground and also upon the ground that only the father had standing to bring this claim. Judge Walker denied the motion; but the Court of Appeals reversed, holding that the claim was barred under both "the one-year rule and the four-year rule" of G.S. 1-15(c). We reverse the Court of Appeals.

Discovery proceedings and the pleadings show the following chronology of events giving rise to this claim: The child Brian was born 11 March 1972. Defendant last rendered professional services to Brian on 8 July 1972. The child's mother, the plaintiff, became aware on or about 14 October 1975 that "something was wrong" with Brian and took him to the Winston-Salem Child Guidance Clinic for examination. In February, 1976, the clinic concluded that Brian was only "one-half as mentally alert as children of his age." On 22 November 1976 Brian's condition was definitively diagnosed as PKU by physicians at Duke University Medical Center. Plaintiff filed this action for medical expenses and loss of the child's services on 19 December 1977.

Until 1 January 1977 the plaintiff's action was governed by Chapter 1157 of the 1971 Session Laws. This chapter, codified as G.S. 1-15(b) (1977 Cum.Supp.), provided in pertinent part that a cause of action "having as an essential element bodily injury . . . not readily apparent to the claimant at the time of its origin, is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever first occurs; provided that in such cases the period shall not exceed 10 years from the last act of the defendant giving rise to the claim for relief." Statutes of limitations [301 N.C. 111] begin to run when the claim against which they are asserted accrues. G.S. 1-15(a). There is a three-year period of limitation for claims arising out of "injury to the person." G.S. 1-52(5). Thus the effect of Chapter 1157 was to provide a three-year period of limitation from the time discovery of the injury was, or should have been, made provided the action was

Page 485

brought within ten years from the last act of the defendant giving rise to the claim. 6

On a motion for summary judgment, the court is not authorized "to decide an issue of fact, but rather to determine whether a genuine issue of fact exists." Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). Further, "all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion." Id., quoting 6 Moore's Federal Practice § 56.15(3) at 2337 (2d Ed. 1971). When plaintiff discovered, or should have discovered, her child's "injury" may well be a question of fact which we cannot now resolve. For purposes of defendant's summary judgment motion we must assume that this date was 22 November 1976, when the child's condition was first definitively diagnosed. Thus, under G.S. 1-15(b) the plaintiff would have had three years from 22 November 1976 in which to file her action.

On 12 May 1976, however, the General Assembly ratified Chapter 977 of the 1975 Session Laws to become effective 1 January 1977. This act again amended G.S. 1-15 so as to provide for a special statute of limitations in professional malpractice cases. It added subsection (c) to G.S. 1-15 which provides:

"(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, economic or [301 N.C. 112] 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. 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 : Provided further, that where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action." (Emphasis supplied.)

This statute significantly altered the law of limitations applicable to professional malpractice actions. It changed the time of accrual of such actions from the date of discovery of injury to the date of defendant's last act which gave rise to the action. Stanley v. Brown, 43 N.C.App. 503, 259 S.E.2d 408 (1979), disc. rev. denied, 299 N.C. 332, 265 S.E.2d 397 (1980). Also, for latent claims discovered two or more years after the defendant's last negligent act, except those involving a non-therapeutic and non-diagnostic "foreign object" left in the body, the statute established a four-year period of limitation measured from its newly defined time of accrual, i. e., from defendant's last act which gave rise to the claim. The period of limitation in such claims which involve a non-therapeutic and non-diagnostic "foreign object" remained ten years. 7

Page 486

By its terms Chapter 977 is applicable to this litigation. Section 8 thereof provides, "This act shall not apply to pending [301 N.C. 113] litigation." Section 9 provides, in addition, that the portion of the chapter under discussion "shall become effective on January 1, 1977, and shall apply to actions filed on or after that date." Since this litigation was not pending on and was filed after the effective date of Chapter 977, the statute, by its terms, purportedly applies. Stanley v. Brown, supra, 43 N.C.App. 503, 259 S.E.2d 408. See, e. g., Spencer v. McDowell Motor Co., 236 N.C. 239, 72 S.E.2d 598 (1952).

When plaintiff discovered the "injury" on 22 November 1976 former G.S. 1-15(b) was in effect. Under it plaintiff would have had three years from the date of discovery in which to bring her action. Thirty-nine days later on 1 January 1977, G.S. 1-15(c), applying specifically to professional malpractice actions, Stanley v. Brown, supra, 43 N.C.App. 503, 259 S.E.2d 408, became effective. If this new statute can within the limits of the Due Process Clause of the Fourteenth Amendment of the United States Constitution be applied to this case, then plaintiff's action for medical expenses and loss of services is barred by it because the action has been brought more than four years from the date it accrued under the new statute and, further, is not a "foreign object" type claim.

II

The first question thus presented is whether the new professional malpractice four-year period of limitations contained in G.S. 1-15(c) can constitutionally be applied so as to bar plaintiff's action for medical expenses and loss of her child's services.

It is well established that the legislature may, without affecting vested interests, shorten or extend a pre-existing period of limitation. Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804 (1902); Turner v. New York, 168 U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392 (1897); Graves v. Howard, 159 N.C. 594, 75 S.E. 998 (1912). If the new statute shortens the period, however, it must, to comport with due process, provide a reasonable time for filing actions which have accrued but which have not been filed when the new statute takes effect. Atchafalaya Land Co. v. F. B. Williams Cypress Co., 258 U.S. 190, 42 S.Ct. 284, 66 L.Ed. 559 (1922); Wheeler v. Jackson, 137 U.S. 245, 11 S.Ct. 76, 34 L.Ed. 659 (1890); Saranac Land Company v. Comptroller, 177 U.S. 318, 20 S.Ct. 642, 44 L.Ed.2d 786 (1899); Turner v. New York, supra, 168 U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392; Koshkonong v. Burton, 104 U.S. 668, ...

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  • Tyner v. Brunswick County Dep't of Soc. Serv., No. 7:1O–CV–00020–F.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 2, 2011
    ...” Laughter, 291 F.Supp.2d at 413 (quoting Brown v. Lyons, 93 N.C.App. 453, 458, 378 S.E.2d 243, 246 (1989) (citing Flippin v. Jarrell, 301 N.C. 108, 120, 270 S.E.2d 482, 490 (1980))). 17. These cases concerned claims filed pursuant to 42 U.S.C. § 1983. 18. To state a derivative claim a moth......
  • State v. Hurst, No. 8512SC854
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • July 15, 1986
    ...of the victims. The Court held that the four felonies were "factually distinct and independent crimes in this case." 301 N.C. at 163, 270 S.E.2d at 482. In Beaty, the Court considered the situation of "a defendant charged with two counts of armed robbery resulting from the assault of a lone......
  • Taratyner v. Brunswick County Dep't Of Soc. Serv., No. 7:10-CV-00020-F
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 2, 2011
    ...Laughter, 291 F. Supp. 2d at 413 (quoting Brown v. Lyons, 93 N.C. App. 453, 458, 378 S.E.2d 243, 246 (1989) (citing Flippin v. Jarrell, 301 N.C. 108, 120, 270 S.E.2d 482, 490 (1980)). 17. These cases concerned claims filed pursuant to 42 U.S.C. § 1983. 18. To state a derivative claim a moth......
  • Azzolino v. Dingfelder, No. 718PA84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 10, 1985
    ...(Plaintiff husband has an equal duty to maintain and support his child. N.C.Gen.Stat. § 50-13.4(b) (1984). See Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980).) Therefore, plaintiffs cannot recover for the ordinary and normal expenses of rearing a child to its majority. Plaintiffs a......
  • Request a trial to view additional results
45 cases
  • Tyner v. Brunswick County Dep't of Soc. Serv., No. 7:1O–CV–00020–F.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 2, 2011
    ...” Laughter, 291 F.Supp.2d at 413 (quoting Brown v. Lyons, 93 N.C.App. 453, 458, 378 S.E.2d 243, 246 (1989) (citing Flippin v. Jarrell, 301 N.C. 108, 120, 270 S.E.2d 482, 490 (1980))). 17. These cases concerned claims filed pursuant to 42 U.S.C. § 1983. 18. To state a derivative claim a moth......
  • State v. Hurst, No. 8512SC854
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • July 15, 1986
    ...of the victims. The Court held that the four felonies were "factually distinct and independent crimes in this case." 301 N.C. at 163, 270 S.E.2d at 482. In Beaty, the Court considered the situation of "a defendant charged with two counts of armed robbery resulting from the assault of a lone......
  • Taratyner v. Brunswick County Dep't Of Soc. Serv., No. 7:10-CV-00020-F
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 2, 2011
    ...Laughter, 291 F. Supp. 2d at 413 (quoting Brown v. Lyons, 93 N.C. App. 453, 458, 378 S.E.2d 243, 246 (1989) (citing Flippin v. Jarrell, 301 N.C. 108, 120, 270 S.E.2d 482, 490 (1980)). 17. These cases concerned claims filed pursuant to 42 U.S.C. § 1983. 18. To state a derivative claim a moth......
  • Azzolino v. Dingfelder, No. 718PA84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 10, 1985
    ...(Plaintiff husband has an equal duty to maintain and support his child. N.C.Gen.Stat. § 50-13.4(b) (1984). See Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980).) Therefore, plaintiffs cannot recover for the ordinary and normal expenses of rearing a child to its majority. Plaintiffs a......
  • Request a trial to view additional results

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