Preston v. Thompson

• Decision Date: 04 August 1981
• Docket Number: No. 8021SC1189,8021SC1189
• Citation: 53 N.C.App. 290,280 S.E.2d 780
• Parties: , 31 UCC Rep.Serv. 1592 Helen C. PRESTON v. Benjamin THOMPSON.
• Court: North Carolina Court of Appeals

Page 780

280 S.E.2d 780

53 N.C.App. 290, 31 UCC Rep.Serv. 1592

Helen C. PRESTON v. Benjamin THOMPSON.

No. 8021SC1189.

Court of Appeals of North Carolina.

Aug. 4, 1981.

Billings, Burns & Wells by R. Michael Wells, Winston-Salem, for plaintiff-appellant.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by F. Joseph Treacy, Jr., Winston-Salem, for defendant-appellee.

HARRY C. MARTIN, Judge.

Plaintiff first argues that a dentist, while generally not an insurer of results, may enlarge his responsibility to the patient and contract to fulfill specific assurances. Although we find no cases in North Carolina addressing this issue, we have no quarrel with this proposition. See Annot., 43 A.L.R.3d 1221 (1972 and 1980 Supp.). Our General Assembly, in enacting Article 1B of Chapter 90 of the General Statutes of North Carolina, apparently considered this very issue. N.C.G.S. 90-21.13(d) provides:

No action may be maintained against any health care provider upon any guarantee, warranty or assurance as to the result of any medical, surgical or diagnostic procedure or treatment unless the guarantee, warranty or assurance, or some note or memorandum thereof, shall be in writing and signed by the provider or by some other person authorized to act for or on behalf of such provider.

A dentist is specifically included under the term "health care provider." N.C.Gen.Stat. 90-21.11.

Plaintiff contends that N.C.G.S. 90-21.13 is not relevant, as a matter of law, to the instant case. She relies on the caption of the section, "Informed consent to health care treatment or procedure," and the title of the article, "Medical Malpractice Actions," emphasizing that the act deals with malpractice or negligence actions, not an action brought on a theory of contract. She further relies upon the fact that all cases citing N.C.G.S. 90-21.12, which sets the standard of health care, have been brought upon malpractice theories. Tatham v. Hoke, 469 F.Supp. 914 (W.D.N.C.1979); Page v. Hospital, 49 N.C.App. 533, 272 S.E.2d 8 (1980); Tripp v. Pate, 49 N.C.App. 329, 271 S.E.2d 407 (1980); Hart v. Warren, 46 N.C.App. 672, 266 S.E.2d 53, disc. rev. denied, 301 N.C. 89, --- S.E.2d --- (1980); Vassey v. Burch, 45 N.C.App. 222, 262 S.E.2d 865, rev'd, 301 N.C. 68, 269 S.E.2d 137 (1980); Thompson v. Lockert, 34 N.C.App. 1, 237 S.E.2d 259, disc. rev. denied, 293 N.C. 593, 239 S.E.2d 264 (1977). N.C.G.S. 90-21.13, the statute here in question, has not been cited previously.

It is true, as plaintiff urges, that when the meaning of a statute is in doubt, reference may be made to the title and context of an act to determine the legislative purpose. Sykes v. Clayton, Comr. of Revenue, 274 N.C. 398, 163 S.E.2d 775 (1968). However, the title of a statute does not control over the text, but may be considered only when the meaning of language of the statute is doubtful. Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898 (1956). Where it is clear and unambiguous, the courts must give the language its plain and definite meaning and may not interpolate or superimpose provisions and limitations not contained therein. 12 Strong's N.C. Index 3d Statutes § 5.5 (1978). The statute here in question plainly mandates that "(n)o action may be maintained against any health care provider upon any guarantee, warranty or assurance as to the result of any medical, surgical or diagnostic procedure or treatment unless the guarantee, warranty or assurance, or some note or memorandum thereof, shall be in writing and signed ...." N.C.Gen.Stat. 90-21.13(d) (emphasis ours). We perceive the statute was intended to apply to circumstances precisely like that which plaintiff alleges. The statute clearly and unequivocally relates to an agreement, a contract, between the health care provider and the patient to achieve a definite result.

Contrary to plaintiff's contention, the recent case of Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980), does not control the case sub judice. In Flippin, the Supreme Court considered a new statute of limitations for malpractice actions, N.C.G.S. 1-15(c), effective 1 January 1977, and held it was unconstitutional to apply it to bar the plaintiff's claim. Plaintiff cites the language of Flippin, 301 N.C. at 118, 270 S.E.2d at 488, that the section "deals exclusively with medical malpractice actions," as conclusive authority that N.C.G.S. 90-21.13 does not apply to an action brought under a theory of contract or warranty. Plaintiff conveniently overlooks the preceding sentence, however, reading: "As implied in its title, the act is far ranging in scope; its various provisions deal with several aspects of professional malpractice." Id. (emphasis ours). Because the statute plainly encompasses the type of action in the present case, plaintiff cannot remove her action from its effect nor change the essence of her claim by labeling it an action of a different name.

The reasons for this statutory requirement are clear. Every patient certainly enters health care treatment (including dental treatment) with hopes and expectations of satisfactory results. Because of the uncertainty inherently involved in a course of treatment, due largely to personal physical and emotional idiosyncrasies of the individual patient, it would generally be imprudent for the health care provider to guarantee a definite result. A patient understandably may be disappointed when his expectations are not fulfilled or his condition fails to improve, and seek recourse against the provider, despite the fact that every effort was expended to obtain the desired result. The legislature wisely foresaw the likelihood that these disappointed patients might believe they had been promised specific results, and chose to require that any suit based upon such claims must be supported by written assurances. Similar statutes of frauds as a safeguard to claims regarding certain transactions have long been part of our law. See N.C.Gen.Stat. 25-2-201 (sales of goods); 22-2 (transactions involving real property). Plaintiff's action is based solely upon allegations of oral assurances. Defendant posed the following interrogatory:

Do you contend that the defendant provided you with any written guaranty, warranty or assurance relative to your dentures, their fit or your treatment or any written note, memorandum of such guaranty, warranty or assurance that was signed by the defendant?

Plaintiff answered: "No, but Plaintiff contends that oral statements were made." N.C.G.S. 90-21.13(d) controls, and, by her own admissions, plaintiff's claim does not fall within the mandate of the statute.

Nor is there any merit to plaintiff's contention that application of the statute to her case would violate the equal protection clause of the Fourteenth Amendment of the United States Constitution. She argues that the statute is arbitrary and capricious, with no rational basis, as other professional groups are not afforded such protection. We cannot agree. The reasons previously discussed provide a rational basis for the statute. The legitimate concerns regarding suits involving the dispensing of health care were succinctly articulated in DiAntonio v. Northampton-Accomack Memorial, 628 F.2d 287, 291 (4th Cir. 1980) (upholding the constitutionality of the Virginia Medical Malpractice Act):

The elimination of frivolous claims and the provision and promotion of mediation and settlement provide a rational basis for the legislation. The different treatment of medical malpractice plaintiffs from other tort plaintiffs is not a denial of equal protection, when the special problems posed by soaring insurance costs are considered.

The language of the Illinois appellate court is also instructive:

"The application of the ordinary rules dealing with mercantile contracts to a contract entered into between a physician and a patient in our opinion is not justified. The relationship is a peculiar relationship inasmuch as the physician cannot, and should not, so terrify the patient by pointing out to him the manifold dangers which are present at any time the slightest surgical operation is performed. To do so might produce a psychic reaction which would seriously retard the success of the physician's treatment." ... Therefore the courts which have...