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Continuing Course of Treatment Doctrine in North Carolina

In North Carolina, the statute of limitations for a medical malpractice action is generally three years from the date of the last act of the defendant contributing to the plaintiff’s injury, pursuant to G.S. 1-15(c). However, like many other states, North Carolina follows the continuing course of treatment doctrine which tolls the statute of limitations until the last act of the defendant contributing to the injury. The North Carolina Court of Appeals summarized the doctrine in the 2000 case, Whitaker v. Akers, as follows:

The continuing course of treatment doctrine operates to toll the statute of limitations. The doctrine applies to situations where a doctor continues a particular course of treatment over a period of time.The underlying theory of the doctrine is that so long as the doctor/patient relationship continues, the doctor is guilty of malpractice during the entire relationship for not repairing the damage he did and therefore, the cause of action arises at the conclusion of the contractual relationship.

The North Carolina Supreme Court recognized the doctrine in 1996 in the case, Horton v. Carolina Medicorp Inc. In Horton, the Court held that for a plaintiff to benefit from the doctrine,

a plaintiff must show both a continuous relationship with a physician and subsequent treatment from that physician. The subsequent treatment must consist of an affirmative act or an omission related to the original act, omission, or failure which gave rise to the claim.

The Court also held in Horton that the doctrine applies to both individual and institutional health care providers.

So how does this doctrine apply to facts? First, let’s look at the Horton case. In Horton, there was negligence in connection with the plaintiff’s initial surgery. Five days later, the plaintiff had a corrective surgery. The plaintiff remained in the hospital for 16 days after the second surgery. The plaintiff argued that the continuing course of treatment doctrine operated to toll the statute of limitations until her release from the hospital. However, the Court held that the doctrine only tolled the statute of limitations until the corrective surgery because the plaintiff did “not allege that defendant Hospital should or could have taken further action to remedy the damage occasioned by its original negligence” after that surgery. The Court stated that “[f]ailure to repair the original damage provides the rationale for tolling the statute, however; the tolling thus continues only until such damage is remedied.”

In 1999, the court of appeals examined the requirement of a continuous relationship with a physician in Trexler v. Pollack. The plaintiff in Trexler went to the emergency room complaining of various stomach symptoms. The examining doctor gave her medication for the pain and also gave her a prescription for several days of medication. The plaintiff took the medication but did not see the doctor again. She returned to the hospital about ten days later with similar stomach symptoms and the doctor who examined her on that occasion correctly diagnosed her with a ruptured appendix. It was possible that the medication prescribed by the first examining physician masked the symptoms of the appendicitis.

The plaintiff argued that the drug prescription constituted a continuing course of treatment. The court of appeals held that the plaintiff failed to meet either prong that the doctrine required and declined to hold the continuing course of treatment doctrine applicable to cases “where a one-time doctor prescribes medication which is not the cause of the patient's illness.” The court distinguished the Trexler facts from those in a 1987 case, Lackey v. Bressler. In Lackey, the court stated that “the last act of a doctor giving rise to a claim for medical malpractice was the expiration of a one-year prescription.” The Trexler court recognized, however, that this previous statement “has limited precedential value” because this last act “had no bearing on whether the statute of limitations had tolled in that case.” In addition, the medication prescribed in Lackey directly caused the plaintiff’s injury and the physician and plaintiff had an ongoing relationship.

The Trexler court also distinguished the facts from those in Horton because the plaintiff in Horton was in the hospital continually from the time of her injury until the repair of the injury. In contrast, the plaintiff in Trexler “went to the hospital for two discrete visits—she was not under the continuing care and observation of any hospital employee.”

In 2000, the court of appeals examined the continuing course of treatment doctrine again in Whitaker v. Akers. The defendant in Whitaker performed an initial surgery, and after the surgery provided corrective treatment seventeen times. After the seventeenth visit, the plaintiff contacted the doctor’s office and spoke with a physician’s assistant who refilled a prescription in connection with the corrective treatment. The court stated that “the issue is whether the physician assistant's prescription refill constitutes treatment.” The defendant argued that because the doctor did not directly refill the prescription, it did not constitute a continuing course of treatment. The court disagreed and stated that “it is not necessary that the subsequent treatment be negligent so long as the doctor continued to treat the plaintiff for the particular condition created by the original negligent act.” The court held that the refill of the prescription constituted corrective treatment and that the defendant doctor “was responsible for any course of treatment chosen by the physician assistant.” As a result, “[i]t would be unjust to allow doctors to escape liability by saying that a prescription refill did not constitute treatment by the doctor simply because the physician assistant handled the phone call.”

Even more recently, in 2007, the court of appeals looked at the continuing course of treatment doctrine in Webb v. Hardy. In that case, the plaintiff suffered a severed nerve in her back as a result of the defendant’s original negligence. However, in her brief, the plaintiff only addressed that the defendant continued to treat plaintiff but did “not address the requirement that the injury or damage be capable of remedial treatment(s) by the physician.” Because the evidence tended to show that the nerve could not be repaired, the court held that the continuing course of treatment doctrine was in applicable.

If you have been injured as a result of medical malpractice, visit for legal help.

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