Appeal by plaintiffs from Herring, Judge. Judgments entered on 6 and 7 April 1981 in Superior Court, Durham County. Heard in the Court of Appeals 11 March 1982.
Martin (Robert M.), Judge. Judges Martin (Harry C.) and Arnold concur.
This case questions the constitutionality of N.C. Gen. Stat. § 1-15(c) which provides for a special limitation period for malpractice actions against professionals. Plaintiffs argue that the statute operates to unconstitutionally deny them a reasonable time in which to file their action; that it is discriminatory, denies equal protection of the laws, and is vague. We affirm the decision of the trial court.
The legislative history of N.C. Gen. Stat. § 1-15 is important to the resolution of this appeal. Prior to 1971 a cause of action for malpractice based on the surgeon's negligence in leaving a foreign object in the body at the conclusion of an operation, accrued immediately upon the closing of the incision, and such action could not be maintained more than three years thereafter even though the consequential damage from such negligence was not discovered until sometime after the operation. Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957).
Between 1971 and 1 January 1977, plaintiff's cause of action would have been controlled by N.C. Gen. Stat. § 1-15(b) which provided that in professional malpractice claims, the cause of action accrued at the "time the injury was discovered by the claimant, or ought reasonably to have been discovered by him . . .; provided that in such cases the period shall not exceed 10 years from the last act of the defendant giving rise to the claim for relief." Thus between 1971 and 1977 a plaintiff had three years from the date of discovery to bring suit, with an outside time limit of ten years.
Effective 1 January 1977, N.C. Gen. Stat. § 1-15 again was amended to provide:
(c) Except where otherwise provided by statute a cause of action for malpractice arising out of the performance of or
failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action: Provided further, that where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.
Based on N.C. Gen. Stat. § 1-15(c), the trial court dismissed plaintiffs' action because they filed it greater than one year after the discovery of the catheter in Mrs. Roberts' arm.
Plaintiffs argue that because N.C. Gen. Stat. § 1-15(b) was in effect at the time of the last act of defendants, that N.C. Gen. Stat. § 1-15(c) should not operate retroactively to bar their claim. As applied in this case, N.C. Gen. Stat. § 1-15(c) does not operate retroactively to affect an accrued cause of action. The general rule applicable in such cases was stated in Flippin v. Jarrell, 301 N.C. 108, 113, 270 S.E.2d 482, 486 (1980):
It is well established that the legislature may, without affecting vested interests, shorten or extend a pre-existing period of limitation. [Citations omitted] If the new statute shortens the period, however, it must, to comport with due process, ...