On plaintiff's petition for discretionary review prior to determination by the Court of Appeals pursuant to G.S. 7A-31 (1981) of the dismissal of her claim for loss of consortium as against the individual defendant by Collier, Judge, at the 16 March 1981 Session of Superior Court, Guilford County. The order of dismissal was entered 17 March 1981.
Plaintiff filed suit on 15 July 1980 alleging that defendants had negligently performed a myelogram procedure on her husband, Alfred W. Cox, on or about 14 July 1978 and had performed the myelogram without his informed consent. She alleged that as a result of the myelogram procedure her husband developed spinal cord arachnoiditis that left him permanently disabled and sexually impotent. Because of his disability she has suffered the loss of her husband's general companionship and conjugal society and affection and has also suffered the loss of sexual gratification in her marriage. She prayed for damages "in excess of $10,000." In her complaint plaintiff requested that her claims be joined with the existing action filed by her husband against the same doctor on 20 May 1980 in Guilford County (number 80CvS3503) for disposition.
Defendant Haworth moved to dismiss plaintiff's complaint for failure to state a claim for which relief may be granted because at the time of the alleged acts of negligence a claim for loss of consortium due to the negligence of third parties was not recognized under the laws of this state.
The motion to dismiss was heard by Judge Collier at the 16 March 1981 Session of Superior Court, Guilford County. He granted defendant Haworth's motion and entered an order dismissing plaintiff's action as to defendant Haworth.
Plaintiff gave immediate notice of appeal, and the appeal was filed and docketed in the Court of Appeals on 11 May 1981. Prior to determination of the appeal by that court, however, plaintiff filed a petition requesting that this Court certify the case for discretionary review prior to the determination of the Court of Appeals. We allowed plaintiff's petition on 17 August 1981.
On 3 June 1980, this Court announced its decision in Nicholson v. Hugh Chatham Memorial Hospital, Inc., 300 N.C. 295, 266 S.E.2d 818 (1980), and held that "a spouse may maintain a cause of action for loss of consortium due to the negligent actions of third parties so long as that action for loss of consortium is joined with any suit the other spouse may have instituted to recover for his or her personal injuries." Id. at 304, 266 S.E.2d at
823. In so holding, this Court overruled long-standing case law which held that no action for loss of consortium exists. Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611 (1945) (husband has no right of action for loss of wife's consortium); Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307 (1925) (wife has no right of action for loss of husband's consortium). Not before us in Nicholson was the question whether and to what extent the new rule applied to claims arising prior to the decision. We must now address this question.
Under a long-established North Carolina law, a decision of a court of supreme jurisdiction overruling a former decision is, as a general rule, retrospective in its operation. Mason v. A.E. Nelson Cotton Co., 148 N.C. 492, 62 S.E. 625 (1908); MacDonald v. University of North Carolina, 299 N.C. 457, 263 S.E.2d 578 (1980). This rule is based on the so-called "Blackstonian Doctrine" of judicial decision-making: courts merely discover and announce law; they do not create it; and the act of overruling is a confession that the prior ruling was erroneous and was never the law. People ex rel. Rice v. Graves, 242 App. Div. 128, 273 N.Y.S. 582 (1934), aff'd, 270 N.Y. 498, 200 N.E. 288, cert. denied, 298 U.S. 683 (1936); Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 157 N.W. 2d 595 (1968); see Annot., 10 A.L.R. 3d 1371, § 4 (1966); Annot., 85 A.L.R. 262 (1933). As stated by this Court in Mason, "the effect is not that the former decision is bad law, but that it never was the law." 148 N.C. at 510, 62 S.E. at 632. Under more recent decisions, however, courts have recognized that the question of retroactivity is one of judicial policy, and should be determined by a consideration of such factors as reliance on the prior decision, the degree to which the purpose behind the new decision can be achieved solely through prospective application, and the effect of retroactive application on the administration of justice. See Annot., 10 A.L.R. 3d 1371, at § 2. This Court has implicitly recognized that the decision on retroactivity involves a ...