Galloway v. Lawrence, 673

• Decision Date: 15 January 1965
• Docket Number: No. 673,673
• Citation: 263 N.C. 433,139 S.E.2d 761
• Parties: Lois GALLOWAY v. Benjamin J. LAWRENCE, Jr. Laura Gene GALLOWAY, by her Next Friend, Daniel J. Parks, v. Benjamin J. LAWRENCE, Jr.
• Court: North Carolina Supreme Court

Page 761

139 S.E.2d 761

263 N.C. 433

Lois GALLOWAY v. Benjamin J. LAWRENCE, Jr.

Laura Gene GALLOWAY, by her Next Friend, Daniel J. Parks, v. Benjamin J. LAWRENCE, Jr.

No. 673.

Supreme Court of North Carolina.

Jan. 15, 1965.

Woltz & Faw, by Thomas M. Faw, Mount Airy, Womble, Carlyle, Sandridge & Rice, by I. E. Carlyle, and H. Grady Barnhill, Jr., Winston-Salem, for defendant appellant.

White, Crumpler, Powell, Pfefferkorn & Green, by James G. White, Winston-Salem, for plaintiff appellees.

HIGGINS, Justice.

The motions to strike the further defenses were equivalent to demurrers to those defenses. When allowed, the defendant had the right of immediate appeal. Our rule, 4(a), requiring certiorari, is not applicable. Mercer v. Hilliard, 249 N.C. 725, 107 S.E.2d 554.

The order striking the pleas in bar were based on G.S. § 1-540.1. 'The compromise, settlement or release of a cause of action against a person responsible for a personal injury to another shall not operate as a bar to an action by the injured party against a physician or surgeon or other professional practitioner treating such injury for the negligent treatment thereof, unless the express terms of the compromise, settlement or release agreement given by the injured party to the person responsible for the initial injury provide otherwise.' The foregoing became effective on October 1, 1961; hence was in effect at the time of the injury and subsequent proceedings related thereto.

Apparently the General Assembly intended to abrogate the rule of this Court announced in Smith v. Thompson, 210 N.C. 672, 188 S.E. 395; and alluded to in Bell v. Hankins, 249 N.C. 199, 105 S.E.2d 642, to the effect that a general release executed in favor of one responsible for the original injury protects a physician or surgeon against a claim based on negligent treatment of the injury. The facts in the Bell case do not call for the application of the general rule above stated, in that the settlement was for wrongful death. The release was in full settlement of that claim. Obviously, there was only one death; and upon the complete satisfaction of that claim a subsequent one for the same cause could not be maintained against the physician. The distinction is this: plaintiffs here seek to recover for a second, independent, subsequent injury following that which was inflicted by Jo Anne Sparger. These actions are based on a later and separate tort. The express terms of the releases here involved do not extend protection to the physician or surgeon.

The defendant insists that G.S. § 1-540.1 violates Article I, Section 1, of the North Carolina Constitution in that it discriminates against and denies equal protection of the laws to physicians and surgeons as a class and hence is invalid. However, classifications as such are not unlawful. They become unlawful when they are arbitrary and unreasonable. In this connection the classification applies with equal force to all members within the classification. Motley v. Barber Examiners, 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253; State v. Call, 121 N.C. 643, 28 S.E. 517.

A physician or surgeon takes a patient as of the time the relationship is established. The physician or surgeon is in no wise responsible for the prior injuries, nor should a release to one who caused them be a shield by which a negligent doctor...