The opinion of the court was delivered by: Wynn, Judge.
Appeal by plaintiff from order entered 29 January 1997 by Judge L. Todd Burke in Moore County Superior Court. Heard in the Court of Appeals 23 April 1998.
In the subject case, the trial court found that the three year statute of limitations on medical malpractice actions barred Juliene McClellan Goins' action. Under North Carolina law, the continuous course of treatment doctrine tolls the running of the statute of limitations for the period between the original act and the ensuing discovery and correction of its consequences. Horton v. Carolina Medicorp., Inc., 344 N.C. 133, 137, 472 S.E.2d 778, 781 (1996). Because we find that Ms. Goins presented evidence showing both a continuous relationship with a physician and subsequent treatment from that physician, we find that the trial court erred in determining that the statute of limitations barred her action as a matter of law.
Additionally, the defendants cross-assign as error the trial court's denial of their summary judgment motion. The appeal as to defendants' cross-assignment of error is dismissed because orders denying a motion for summary judgment are not appealable.
Accordingly, we reverse the grant of summary judgment and remand this action for a trial by jury.
Ms. Goins brought this action without the benefit of counsel on 23 August 1993, seeking damages from Dr. Joel G. Puleo, Dr. Ellen A. Puleo, and Pinehurst Women's Clinic for alleged medical negligence. However, on 11 September 1995 she voluntarily dismissed her action under N.C.R. Civ. P. 41(a)(1).
On 10 September 1996, Ms. Goins -- again acting pro se -- refiled this action, alleging the same claims as in the original action. Her second complaint alleged that Dr. Joel Puleo treated her for menorrhagia at the Pinehurst Women's Clinic from 1988 until 1990; on 11 August 1990, she sought medical attention in the emergency room at Moore Regional Hospital because of significant menorrhagia and blurred vision; Dr. Puleo treated her at that hospital with intravenous glucose and discharged her without informing her that her glucose was elevated to the 354 range.
On 18 August 1990, Ms. Goins returned to the hospital with menorrhagia and was admitted for observation. During her hospitalization, Dr. Ellen Puleo attempted, but was unable, to administer a blood transfusion. Intravenous glucose was again administered as prescribed by Dr. Joel Puleo, and Ms. Goins was discharged on 20 August 1990. Ms. Goins alleges that while she was hospitalized, Dr. Ellen Puleo failed to read or notice the lab data contained in her chart and that she was discharged with a glucose level greater than 500.
Dr. Joel Puleo treated Ms. Goins at the Pinehurst Women's Clinic on 23 August 1990. Finding her weak and disoriented, Dr. Puleo immediately admitted her to the Moore Regional Hospital. Medical tests revealed her glucose level in the 600 range and that she suffered from diabetic ketoacidosis. Her condition declined and she developed pancreatitis and eventually lapsed into a diabetic coma, allegedly as a result of inadequate treatment rendered by the defendant-health care providers. She was subsequently transferred to North Carolina Memorial Hospital where she remained until 10 September 1990.
Defendant-health care providers answered, denying the material allegations of the complaint, asserting affirmative defenses including the statute of limitations, and moving to dismiss the claim. During a pretrial hearing the defendants argued they were entitled to summary judgment on two grounds. The first was that the action was barred by the statute of limitations. The second was based on Goins' failure to respond to a request for admissions. One request asked whether there had been a breach of the applicable standard of care. The defendants argued that because Goins had not responded, she had admitted that there was no breach of the applicable standard of care, and therefore defendants' entitlement to summary judgment was established as a matter of law. The trial court denied defendants' motion for summary judgment insofar as it was based on Ms. Goins' failure to respond to the requests for admission. By separate order the trial court found that the statute of limitations barred Ms. Goins' action. She now appeals to this Court.
At the outset, we note that the trial court entitled its order "Order Granting Motion To Dismiss," reciting that the matter was heard upon defendants' motion "to dismiss the Complaint . . . pursuant to N.C.G.S. 1-52, N.C.G.S. 1-15(c), or other applicable statutes of limitation . . . ." At the hearing, however, the trial court considered the deposition of Ms. Goins' expert witness, offered by defendants in support of their contention the action was barred by the statute of limitations. Where the trial court considers matters outside the pleadings, the motion is converted to one for summary judgment. Deans v. Layton, 89 N.C. App. 358, 362, 366 S.E.2d 560, 563, disc. review denied, 322 N.C. 834, 371 S.E.2d 276 (1988). Accordingly, we review the rulings of the trial court under the standard of review applicable to summary judgment -- whether there is a genuine issue of material fact. N.C.R. Civ. P. 56(c).
By her single assignment of error, Ms. Goins contends that the trial court erred by barring her action under the statute of limitations. We agree.
Once a defendant asserts the statute of limitations as a defense, the plaintiff must show that the action was commenced within the limitations period. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). With certain exceptions not applicable here, a civil action for professional malpractice, including medical negligence, must be commenced within three years from the last act of the defendant giving rise to the action. N.C. Gen. Stat. §§ 1-15, 1-52(5) (1996). However, where plaintiff shows a continuous relationship with a physician and subsequent treatment by the physician, related to the original act or omission which gave rise to the claim, the "continuing course of treatment doctrine" tolls the running of the statute of limitations for the period between the original negligent act and the time the damage is discovered and corrected. Horton v. Carolina Medicorp., Inc., 344 N.C. 133, 137, 472 S.E.2d 778, 781 (1996).
In support of their motion, the defendants offered deposition testimony from Ms. Goins' expert identifying the only deviation from the applicable standard of care as having occurred on 11 August 1990. They argue that the statute of limitations bars Ms. Goins' claim because she did not commence her original action until 23 August 1993 -- more than three years after the alleged deviation from the standard of care. However, Ms. Goins alleged that defendants treated her over a substantial period of time prior to August 1990 and continued to be involved in her care and treatment until her transference on 26 August 1990 to North Carolina Memorial Hospital in a diabetic coma state. Ms. Goins' expert attributes the necessity for her hospitalization, both at Moore Regional and at North Carolina Memorial, at least in part to Dr. Joel Puleo's negligent treatment on 11 August 1990. Accordingly, a genuine issue of ...