Shearin v. Lloyd

• Decision Date: 07 June 1957
• Docket Number: No. 384,384
• Citation: 98 S.E.2d 508,246 N.C. 363
• Parties: Henry B. SHEARIN v. Dr. John T. LLOYD.
• Court: North Carolina Supreme Court

Page 508

98 S.E.2d 508

246 N.C. 363

Henry B. SHEARIN v. Dr. John T. LLOYD.

No. 384

Supreme Court of North Carolina.

June 7, 1957.

Hill Yarborough, Louisburg, and Thomas F. East, Franklinton, for plaintiff, appellant.

Smith, Leach, Anderson & Dorsett, Raleigh and Charles P. Green, Louisburg, for defendant, appellee.

BOBBITT, Justice.

Where, upon waiver of jury trial in accordance with G.S. § 1-184, the court makes no specific findings of fact but enters judgment of involuntary nonsuit, the only question presented is whether the evidence, taken in the light most favorable to plaintiff, would support findings of fact upon which plaintiff could recover. City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486; Harrison v. Brown, 222 N.C. 610, 24 S.E.2d 470; Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13.

The legal obligations of a physician or surgeon who undertakes to treat a patient are well established. Nash v. Royster, 189 N.C. 408, 414, 127 S.E. 356; Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762; Hazelwood v. Adams, 245 N.C. 398, 95 S.E.2d 917; and cases cited.

The evidence was sufficient to support these findings of fact: (1) that defendant, in performing the operation of July 20, 1951, introduced the lap-pack into plaintiff's body; (2) that he closed the incision without first removing the lap-pack; (3) that this was a breach of defendant's legal duty to exercise reasonable care and diligence in the application of his knowledge and skill to plaintiff's case; and (4) that injury to plaintiff proximately resulted therefrom.

It has been established by this Court, and generally, that the leaving of such a foreign substance in the patient's body at the conclusion of an operation 'is so inconsistent with due care as to raise an inference of negligence.' Mitchell v. Saunders, 219 N.C. 178, 13 S.E.2d 242, 246; Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480; Annotations: 162 A.L.R. 1299, 13 A.L.R.2d 84.

The crucial question is this: Was the evidence sufficient to support a finding of fact that this action was commenced within three years from the time plaintiff's cause of action accrued?

The period prescribed for the commencement of an action for malpractice based on negligence is three years from the time the cause of action accrues. G.S. §§ 1-15, 1-46, 1-52, subd. 5; Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320. The burden was on plaintiff to show that he instituted his action within this prescribed period. Lewis v. Shaver, supra; Hooper v. Carr Lumber Co., 215 N.C. 308, 1 S.E.2d 818.

'In general a cause or right of action accrues, so as to start the running of the statute of limitations, as soon as the right to institute and maintain a suit arises, * * *.' 54 C.J.S. Limitations of Actions § 109; 34 Am.Jur., Limitation of Actions sec. 113; Aydlett v. Major & Loomis Co., 211 N.C. 548, 551, 191 S.E. 31; Peal v. Martin, 207 N.C. 106, 176 S.E. 282. Where the aggrieved party is under disability at the time the cause of action accrues, the action must be commenced 'within three years next after the removal of the disability, and at no time thereafter.' G.S. §§ 1-17, 1-20; White v. Scott, 178 N.C. 637, 101 S.E. 369. The 'disabilities' are defined in G.S. § 1-17.

'It is a firmly established rule that with certain exceptions, such as in the cases of covenants and indemnity contracts, the occurrence of an act or omission, whether it is a breach of contract or of duty, whereby one sustains a direct injury, however slight, starts the statute of limitations running against the right to maintain an action. It is sufficient if nominal damages are recoverable for the breach or for the wrong, and it is unimportant that the actual or substantial damage is not discovered or does not occur until later. However, it is well settled that where an act is not necessarily injurious or is not an invasion of the rights of another, and the act itself affords no cause of action, the statute of limitations begins to run against an action for consequential injuries resulting therefrom only from the time actual damage ensues.' 34 Am.Jur., Limitation of Actions sec. 115.

Our decisions support this general statement. Thus, where the defendant dug ditches on its land, the cause of action accrued when surface water was actually diverted by these ditches from its natural course so as to flood and damage plaintiff's crop and land. Until then there had been no invasion of plaintiff's rights. Hocutt v. Wilmington & W. R. Co., 124 N.C. 214, 32 S.E. 681. But as stated by Walker, J., in Mast v. Sapp, 140 N.C. 533, 53 S.E. 350, 352, 5 L.R.A.,N.S., 379: 'When the right of the party is once violated, even in ever so small a degree, the injury, in the technical acceptation of that term, at once springs into existence and the cause of action is complete.' See Sloan v. Hart, 150 N.C. 269, 63 S.E. 1037, 21 L.R.A., N.S., 239. In such case, as stated by Walker, J.: 'When a cause of action once accrues, there is a right, as of the time of the accrual, to all the direct and consequential damages which will ever ensue-- that is, all damages not resulting from a continuing fault which may be the foundation of a new action or of successive actions --and the law will in such a case take into consideration, not only damage already suffered, but that which will naturally and probably be produced by the wrongful act, * * *.' Mast v. Sapp, supra; see Webb v. Virginia-Carolina Chemical Co., 170 N.C. 662, 664, 87 S.E. 633, L.R.A.1916E,971.

'It is well settled that in an action for damages, resulting from negligent breach of duty, the statute of limitations begins to run from the breach, from the wrongful act or omission complained of, without regard to the time when the harmful consequences were discovered. [Citations omitted.]' Devin, J. (later C. J.), in Powers v. Planters Nat. Bank & Trust Co., 219 N.C. 254, 256, 13 S.E.2d 431, 432. in the Powers case, the alleged negligence was the failure of the defendant to inform the plaintiff that the property leased and conveyed to the plaintiff had been used by one infected with the germs of pulmonary tuberculosis, plaintiff alleging that in consequence of such negligent failure he contracted tuberculosis and suffered substantial injury to his health.

This rule, well settled in this jurisdiction, has been expressly applied to malpractice cases based on the alleged negligence of the defendant. Lewis v. Shaver, supra; Connor v. Schenck, 240 N.C. 794, 84 S.E.2d 175.

It is inescapable that plaintiff's cause of action accrued on July 20, 1951, when defendant closed the incision without first removing the lap-pack from plaintiff's body. Defendant's failure thereafter to detect or discover his own negligence in this respect did not affect the basis of his liability therefor. Earlier discovery and removal of the lap-pack would bear upon the extent of the injury proximately caused by defendant's negligent conduct.

It is noted that, apart from allowing the lap-pack to remain in plaintiff's body, there is no allegation or evidence as to any negligence of defendant in the performance of the operation on July 20, 1951. It is noted further that there was no evidence sufficient to warrant a finding in support of plaintiff's allegations that, in relation to plaintiff's condition as of November, 1952, defendant failed to exercise due care either in the performance of the operation of November 19, 1952, or in his subsequent treatment of plaintiff.

Moreover, plaintiff did not base his cause of action upon allegations that defendant negligently failed to discover the fact or results of his original negligence prior to November 17, 1952, but alleged that defendant 'fraudulently concealed from the plaintiff * * * his act and deed in leaving within the body of the plaintiff' the said lap-pack. Suffice to say plaintiff's evidence was not sufficient to warrant a finding in support of his allegations as to defendant's alleged fraudulent concealment of material facts. Hence, we need not consider the circumstances under which a defendant's fraudulent concealment of material facts would toll the running of the statute of limitations. For cases pertinent to this subject, see 74 A.L. R. 1320 et seq., 144 A.L.R. 215 et seq.

In malpractice actions, it is generally held that the cause of action accrues from the date of the wrongful act or omission. 74 A.L.R. 1318; 144 A.L.R. 210.

In Cappuci v. Barone, 266 Mass. 578, 165 N.E. 653, 654, where the defendant, in performing the operation, left a piece of gauze and a gauze sponge in the wound, the court said: 'Upon this branch of the defense the single question is, When did the cause of action accrue? The defendant as a surgeon, on May 11, 1924, impliedly undertook to use care in the operation which he was about to perform. Any act of misconduct or negligence on his part in the service undertaken was a breach of his contract, which gave rise to a right of action in contract or tort, and the statutory period began to run at that time, and not when the actual damage results or is ascertained, as the plaintiff contends. The damage sustained by the wrong done is not the cause of action; and the statute is a bar to...