Horton v. Carolina Medicorp, Inc.

• Citation: 472 S.E.2d 778,344 N.C. 133
• Decision Date: 31 July 1996
• Docket Number: No. 383PA95,383PA95
• Parties: Doris R. HORTON v. CAROLINA MEDICORP, INC., Forsyth County Hospital Authority, Inc., and Forsyth Memorial Hospital.
• Court: North Carolina Supreme Court

Page 778

472 S.E.2d 778

344 N.C. 133

Doris R. HORTON v. CAROLINA MEDICORP, INC., Forsyth County Hospital Authority Inc., and Forsyth Memorial Hospital.

No. 383PA95.

Supreme Court of North Carolina.

July 31, 1996.

Warren Sparrow, Winston-Salem and Cranwell & Moore by C. Richard Cranwell, Roanoke, VA, for plaintiff-appellee.

Wilson & Iseman, L.L.P. by G. Gray Wilson and Tamura D. Coffey, Winston-Salem, for defendant-appellants.

WHICHARD, Justice.

On 6 December 1993 plaintiff Doris Horton filed a complaint against defendants Carolina Medicorp, Inc.; Forsyth County Hospital Authority, Inc.; and Forsyth Memorial Hospital (collectively, "defendant Hospital") seeking damages based on the alleged negligence of defendant Hospital's nursing staff. On 3 May 1994, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, defendant Hospital moved to dismiss the complaint, arguing that plaintiff's action was barred by the statute of limitations set forth in N.C.G.S. § 1-15(c). On 27 June 1994 the trial court entered an order dismissing plaintiff's complaint, ruling that the action was time-barred. Plaintiff appealed, and the Court of Appeals reversed. Horton v. Carolina Medicorp, Inc., 119 N.C.App. 777, 460 S.E.2d 567 (1995). We now reverse the Court of Appeals and order the dismissal reinstated.

The complaint alleges that on 15 November 1990 plaintiff was admitted to defendant Hospital for a total abdominal hysterectomy. On 16 November 1990 a catheter inserted during the surgery was removed. After the removal plaintiff experienced difficulty urinating, and her bladder became distended. She was unable to void her bladder for a twenty-four-hour period, resulting in the tearing of the bladder wall and leakage of urine into the body. Hospital staff discovered this condition on 17 November 1990 and inserted a new catheter. Plaintiff's condition did not improve, and on 20 November 1990 she underwent corrective surgery. After this second surgery plaintiff was in the intensive care unit before her discharge from defendant Hospital on 6 December 1990.

The question is whether plaintiff's action is barred by the statute of limitations. A statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the complaint that such a statute bars the claim. Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994). Once a defendant raises a statute of limitations defense, the burden of showing that the action was instituted within the prescribed period is on the plaintiff. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). A plaintiff sustains this burden by showing that the relevant statute of limitations has not expired. See Little v. Rose, 285 N.C. 724, 727, 208 S.E.2d 666, 668 (1974).

The applicable statute is N.C.G.S. § 1-15(c), which provides that a claim for malpractice arising out of the performance of or failure to perform professional medical services accrues upon the occurrence of the last act of the defendant giving rise to the claim. Plaintiff has three years from that date within which to bring suit. N.C.G.S. § 1-15(c) (1983).

Applying this statute to the facts alleged, if the last act giving rise to the claim was the initial surgery on 15 November 1990 or the removal of the catheter on 16 November 1990, plaintiff's claim filed on 6 December 1993 cannot withstand defendant Hospital's plea of the statute of limitations. Plaintiff does not contend otherwise. Her argument is, rather, that the continuing course of treatment doctrine applies so as to render her discharge from defendant Hospital on 6 December 1990 the last act giving rise to the claim. The issue thus becomes whether this doctrine applies, and if so, which of two dates thereby becomes the occasion of the last act giving rise to the claim: 20 November 1990, the date of the corrective surgery; or 6 December 1990, the date of plaintiff's discharge from defendant Hospital.

This Court has not heretofore decided the applicability of the continuing course of treatment doctrine in this jurisdiction. Our Court of Appeals, however, initially applied the doctrine to a physician malpractice claim in Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978), and has applied it in subsequent cases, see Sidney v. Allen, 114 N.C.App. 138, 441 S.E.2d 561 (1994); Hensell v. Winslow, 106 N.C.App. 285, 416 S.E.2d 426, disc. rev. denied, 332 N.C. 344, 421 S.E.2d 148 (1992); Stallings v. Gunter, 99 N.C.App. 710, 394 S.E.2d 212, disc. rev. denied,327 N.C. 638, 399 S.E.2d 125 (1990); Callahan v. Rogers, 89 N.C.App. 250, 365 S.E.2d 717 (1988); Mathis v. May, 86 N.C.App. 436, 358 S.E.2d 94, disc. rev. denied, 320 N.C. 794, 361 S.E.2d 78 (1987); Johnson v. Podger, 43 N.C.App. 20, 257 S.E.2d 684, disc. rev. denied, 298 N.C. 806, 261 S.E.2d 920 (1979). The Court of Appeals noted in Ballenger that the doctrine rests on the theory that " 'so long as the relationship of surgeon and patient continued, the surgeon was guilty of malpractice during that entire relationship for not repairing the damage he had done.' " Ballenger, 38 N.C.App. at 58, 247 S.E.2d at 293 (quoting DeLong v. Campbell, 157 Ohio St. 22, 25, 104 N.E.2d 177, 178 (1952), overruled on other grounds by Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111, 449 N.E.2d 438 (1983)). While the Court of Appeals has stated that the doctrine delays accrual of the claim until conclusion of the treatment--e.g., Stallings, 99 N.C.App. at 714, 394 S.E.2d at 215--a more accurate statement would be that the doctrine tolls the running of the statute for the period between the original negligent act and the ensuing discovery and correction of its consequences; the claim still accrues at the time of the original negligent act or omission.

To benefit from this doctrine, a plaintiff must show both a continuous relationship with a physician and subsequent treatment from that physician. The subsequent treatment must consist of an affirmative act or an omission related to the original act, omission, or failure which gave rise to the claim. Id. at 715, 394 S.E.2d at 216.

We now affirm that the continuing course of treatment doctrine, only as set forth above, is the law in this jurisdiction. We expressly decline in this case to pass upon other features of the doctrine as developed and applied in the above-cited Court of Appeals cases.

Defendant Hospital contends that even if the doctrine is the law in this jurisdiction, it has not been, and should not be, applied to institutional defendants such as itself. For the reasons hereinafter stated, we disagree.

A medical malpractice action is any action for damages for personal injury or death arising out of the furnishing of or failure to furnish professional services by a health care provider as defined in N.C.G.S. § 90-21.11. Watts v. Cumberland Co. Hosp. Sys., 75 N.C.App. 1, 9, 330 S.E.2d 242, 249 (1985), rev'd in part on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986). N.C.G.S. § 90-21.11 defines "health care provider" as:

[A]ny person who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or otherwise performs duties associated with any of the following: medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic, radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, laboratory analysis, rendering assistance to a physician, dental hygiene, psychiatry, psychology; or a hospital as defined by G.S. 131-126.1(3); or a nursing home as defined byG.S. 130-9(e)(2); or any other person who is legally responsible for the negligence of such person, hospital or nursing home; or any other person acting at the direction or under the supervision of any of the foregoing persons, hospital, or nursing home.

N.C.G.S. § 90-21.11 (1993) (emphasis added). The General Assembly thus, for definitional purposes, has treated hospitals and other specified institutional health care providers identically with other health care professionals. Had it intended differential treatment for hospitals in the defense of medical malpractice claims, it could have so provided. It has not done so, and we thus find no basis in legislative policy for holding that the continuing course of treatment doctrine does not apply to hospitals in the same manner that it does to other health care providers.

Our case law suggests the same conclusion. This Court has long recognized that hospitals owe a duty of care to their patients. Blanton v. Moses H. Cone Mem. Hosp., 319 N.C. 372, 375, 354 S.E.2d 455, 457 (1987); Rabon v. Rowan Mem. Hosp., 269 N.C. 1, 21, 152 S.E.2d 485, 498-99 (1967). They must exercise ordinary care in the selection of their agents. Blanton, 319 N.C. at 375, 354 S.E.2d at 458. They must make a reasonable effort to monitor and oversee the treatment their staffs provide to patients. Campbell v. Pitt Co. Mem. Hosp., 84 N.C.App. 314, 325, 352 S.E.2d 902, 908, aff'd, 321 N.C. 260, 362 S.E.2d 273 (1987), overruled on other grounds by Johnson v. Ruark Obstetrics and Gynecology Assoc., 327 N.C. 283, 395 S.E.2d 85 (1990). They employ or grant privileges to numerous physicians, nurses, and interns, as well as administrative and other nonmedical staff, all for the purpose of providing medical care and treatment to patients. They charge for their services and may invoke the legal system to collect. The patient who avails himself of hospital facilities expects the institution, through its agents, to attempt to cure him and does not expect that its employees will act on their own responsibility. See Rabon, 269 N.C. at 11, 152 S.E.2d at 492. Upon a breach of a hospital's duty of care, the affected patient is entitled to bring an action against it. Blanton, 319 N.C. at 374-76, 354 S.E.2d at 457-58. Thus, neither legislative policy nor North Carolina...