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Johnson v. Podger

Filed: September 18, 1979.

BARBARA L. JOHNSON
v.
KENNETH A. PODGER



Appeal by plaintiff from Wood, Judge. Judgment entered 22 August 1978 in Superior Court, Durham County. Heard in the Court of Appeals 30 August 1979.

Vaughn, Judge. Judges Hedrick and Arnold concur.

Vaughn

The sole question on appeal is whether plaintiff's claim is barred by the statute of limitations. Defendant and the trial court below were of the opinion that G.S. 1-52(5) barred plaintiff's claim. Plaintiff felt G.S. 1-15(b) permitted her claim.

As adopted for purposes of this action, G.S. 1-52(5) provided that an action must be within three years "for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated." This statute has been applied to medical malpractice actions. See e.g., Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957). In applying G.S. 1-52(5), a three-year period of limitations on actions is established. This does not, however, answer the question of when this three-year period begins to run. The time of accrual of this three-year period for plaintiff's cause of action is the central issue of this case.

In 1971, the General Assembly amended G.S. 1-15. The amendment created G.S. 1-15(b) which provided:

"Except where otherwise provided by statute, a cause of action, other than one for wrongful death, having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstances

making the injury, defect or damages 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 event 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 claims for relief."

Prior to the enactment of this statute, the rule in this State which was contrary to the majority rule was that the cause of action accrued when the negligent act was done and not when the damages resulted. Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1 (1965); Shearin v. Lloyd, supra; Blount v. Parker, 78 N.C. 128 (1878). This harsh rule of law was changed by G.S. 1-15(b). Raftery v. Vick Construction Co., 291 N.C. 180, 230 S.E.2d 405 (1976). If (1) an essential element of a claim is nonapparent bodily injury or damage to property and (2) no statute otherwise provides, the period of limitation may run from the discovery of the injury but in no event for more than ten years from the last act or omission of the defendant. By this statute, the Legislature adopted a discovery rule for the accrual of actions if these two requirements are met. See Lauerman, The Accrual and Limitation of Causes of Actions for Nonapparent Bodily Harm and Physical Defects in Property in North Carolina, 8 Wake Forest L. Rev. 327 (1972).

We note that in 1975, G.S. 1-15(b) was amended to exempt from its coverage a cause of action "for malpractice arising out of the performance of or failure to perform professional services," along with the already exempted wrongful death. The Legislature, at the same time, created G.S. 1-15(c), a special statute for accrual and limitation of actions for professional malpractice. This indicates malpractice actions were included in G.S. 1-15(b) before G.S. 1-15(c) was adopted. In terms of the period of limitations, G.S. 1-15(c) does differentiate between cases involving a "foreign object, which has no therapeutic or diagnostic purpose or effect," and any other case of "bodily injury to the person . . . which originates under circumstances making the injury . . . not readily apparent to the claimant at the time of its origin, and . . . is discovered . . . two or more years after the occurrence of the last act of the defendant giving rise to the cause of action." For the latter, the maximum time in which a cause of action can be brought is not more than "four years from the last act of

defendant giving rise to the cause of action" and in the former case "10 years from the last act of defendant giving rise to the cause of action." Negligent treatment or misdiagnosis would both come under the four-year outside limit. But for both foreign object injury and other cases of nonapparent injury, as in this case, accrual time based on discovery by plaintiff is provided. Unless the injury is nonapparent or involves a foreign object in the body, the action accrues on the occurrence of the last act of the defendant. Before the enactment of G.S. 1-15(c), any claim for nonapparent bodily injury however arising was governed by G.S. 1-15(b) as to the time of accrual of a cause of action. The 1979 General Assembly repealed G.S. 1-15(b) altogether. 1979 N.C. Sess. Laws c. 654, s. 3(a). The repealing session law does not affect G.S. 1-15(c) but adds a new discovery statute for all other cases for personal injury or damages to property. 1979 N.C. Sess. Laws c. 654, s. 3(b). For purposes of this appeal, G.S. 1-15(b), as set out above, provides the wording of the statute to be interpreted.

In a malpractice action for G.S. 1-15(b) to apply, we must have "a cause of action . . . having as an essential element bodily injury to the person . . . which originated under circumstances making the injury . . . not readily apparent to the claimant at the time of its origin. . . ." Plaintiff's cause of action has as an essential element bodily injury as the result of defendant's actions in negligent causation, misdiagnosis and treatment of a "staph" infection. Her evidence shows the injury originated in the surgery and post-operative care of defendant. It was not readily apparent to plaintiff at the time it occurred. While the manifestations of the injury -- fever, vaginal discharge and pain -- were known to plaintiff, the cause was not discovered until either 13 August or 24 September. On 13 August, plaintiff discovered she had ...


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