The opinion of the court was delivered by: Martin, John C., Judge.
Appeal by both parties from judgment entered 16 March 1995 by Judge James M. Webb in Union County Superior Court. Heard in the Court of Appeals 19 February 1998.
Plaintiffs brought this action alleging claims for medical negligence and "intentional fraudulent misrepresentation." Phyllis Teague sought damages for personal injury and punitive damages; her husband, Jack Teague, sought damages for loss of consortium. Prior to filing an answer, defendants moved to dismiss for plaintiffs' failure to state a claim upon which relief could be granted. The trial court converted the motion to one for summary judgment and granted partial summary judgment dismissing plaintiffs' claims for medical negligence as barred by the statute of limitations. Summary judgment was denied as to plaintiffs' claim for fraudulent misrepresentation. After further proceedings in the trial court, plaintiffs submitted to a voluntary dismissal without prejudice of their claim for fraudulent misrepresentation and gave notice of appeal from the summary judgment dismissing their claim for medical negligence. Defendants gave notice of appeal from the denial of summary judgment as to the issue of fraud.
Evidence before the trial court, considered in the light most favorable to plaintiffs as the non-moving parties, tended to show that on 19 October 1990, Phyllis Teague underwent laparoscopic surgery, performed by Dr. Godwin, for removal of her gall bladder. During the procedure, defendant Godwin misidentified and transected Mrs. Teague's common bile duct. He then converted the laparoscopic procedure to an open surgical procedure and attempted to repair the duct.
Mrs. Teague testified that Dr. Godwin told her husband and son that he had converted the procedure to an open one because plaintiff had stones in her bile duct. She asserted that Dr. Godwin never told her that he had transected the bile duct by accident or as a complication of the gall bladder surgery. Mrs. Teague also asserted that Dr. Godwin ordered a cholangiogram but failed to review the written report of the examination, which showed a stricture. According to Mrs. Teague, Dr. Godwin told her the cholangiogram showed that "everything was fine" and discharged her from his care on 3 January 1991. She indicated that she did not learn of Dr. Godwin's failure to actually read the report until his deposition was taken on 18 April 1994 for purposes of this action.
Plaintiff underwent a second surgical procedure, performed by another physician on 21 May 1991, to repair the duct. According to plaintiff, she learned for the first time after this procedure that Dr. Godwin had severed the duct during the 1990 surgical procedure.
Plaintiffs also offered evidence tending to show that their counsel contacted defendants' liability insurer in April 1992 with respect to plaintiffs' claim. Settlement negotiations ensued, including Discussion of arbitration as a possible means of resolving the matter. Plaintiff asserted in her affidavit that she agreed, in December 1993, to withhold filing her complaint so that the matter could be arbitrated, and that arbitration was scheduled for 21 March 1994 at 2:30 p.m. Exhibits attached to the affidavit reflect only that a meeting was scheduled for that date and time between plaintiffs' counsel and the claims representative "to further discuss settlement." On 16 February 1994, the claims representative advised plaintiffs' counsel that because he believed plaintiffs' claim was barred by the statute of limitations, he would decline to negotiate further. Plaintiffs filed this action on 22 February 1994.
Plaintiffs' assignments of error raise issues with respect to (1) the application of the statute of limitations to the facts of this case, and (2) whether defendants should be equitably estopped to assert the statute of limitations as a bar to plaintiffs' claim. The rules with respect to summary judgment have been stated many times: "[s]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Thompson v. Three Guys Furniture Co., 122 N.C. App. 340, 344, 469 S.E.2d 583, 585 (1996) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). The party moving for summary judgment has the burden of "positively and clearly showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law." James v. Clark, 118 N.C. App. 178, 180, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995).
A defendant may meet this burden by: (1) proving that an essential element of the plaintiff's case is non existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.
Id. at 180-81, 454 S.E.2d at 828. Generally, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact, but when the facts relating to a statute of limitations defense are not in dispute, the issue is a question of law, properly resolved by summary judgment. Pembee Mfg. Corp. v. Cape Fear Constr. Co. Inc., 69 N.C. App. 505, 317 S.E.2d 41 (1984), affirmed, 313 N.C. 488, 329 S.E.2d 350 (1985).
Plaintiffs argue the trial court erred in concluding their medical negligence claim was barred by the statute of limitations. Citing Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985), plaintiffs assert the cause of action accrued in May 1991, when they discovered Dr. Godwin's alleged negligence, rather than 3 January 1991, the date he released her from treatment after having allegedly failed to read the report of the cholangiogram, the last act of defendants giving rise to the claim.
G.S. § 1-15(c) (1996) provides:
(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 ...