Statute of Limitations for Medical Malpractice Claims in North Carolina

The statute of limitations for a medical malpractice claim in North Carolina is generally three years from the last act of the defendant giving rise to the injury.  However, there are a few exceptions to this general rule.  Let’s begin by looking at the applicable statute provision.

North Carolina statute G.S. 1-15(c) states

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.

Therefore, the statute of limitations for a medical malpractice claim is generally three years from the last act of the defendant giving rise to the injury.  However, if the injury is not reasonably discovered within 2 years after the last act of the defendant, then the plaintiff has one year from the date of the discovery of the injury to commence the suit.  But in no event can the action be commenced more than four years from the last act of the defendant, or more than ten years in the case of damages sought by reason of a foreign object left in the body.

The North Carolina Supreme Court has looked at this statute provision to define the word “injury.”  In Black v. Littlejohn (1985), the doctor performed a hysterectomy on a patient to alleviate her endometriosis.  At the time of the surgery, he did not inform her of other treatments for endometriosis and told her “"he had done everything he could to avoid a hysterectomy and that nothing else would work."  More than two years after her surgery, the plaintiff became aware of a drug used to treat endometriosis that might have made her surgery unnecessary.  The court stated that the issue was “whether plaintiff's discovery of defendant's failure to inform her of the availability of a drug as a less drastic alternative to the hysterectomy performed by defendant on plaintiff more than two years earlier qualifies as discovery of a non-apparent "injury" that comes within the one-year discovery provision of G.S. 1-15(c).”

The court first looked at the dictionary definition of “injury” as an “actionable wrong” and reasoned that

at the time of her surgery it was not readily apparent to her that she had suffered any "actionable wrong" or violation of her rights. Not until more than two years after her hysterectomy did she actually discover that the defendant violated her rights. It was at this point that she became aware of her alleged cause of action or actionable wrong, that is, the negligence of defendant in failing to advise her of possible alternatives to the drastic surgical procedure performed by defendant.

The court then looked at the legal definition of “injury” as an “invasion of any legally protected interest of another.”  Using this definition, the court concluded that “plaintiff's injury is the wrong entitling plaintiff to commence a cause of action. Until plaintiff discovers the wrongful conduct of defendant, she is unaware that she has been injured in the legal sense.”

Finally, the court held that the plaintiff’s case fell under the one-year discovery rule in G.S. 1-15(c) because “plaintiff was not aware of defendant's wrongful conduct or alleged negligence in failing to inform her of alternative drug therapies, and that such wrongful conduct was not readily apparent at the time of surgery but was discovered more than two years thereafter.”

The continuing course of treatment doctrine can also act to toll the statute of limitations.  It “applies to situations where a doctor continues a particular course of treatment over a period of time.”  (Whitaker v. Akers N.C. App. 2000)  This doctrine was first addressed by the North Carolina Supreme Court in Horton v. Carolina Medicorp, Inc. (1996).

In that case, the court reasoned that “the doctrine rests on the theory that so long as the relationship of surgeon and patient continued, the surgeon was guilty of malpractice during that entire relationship for not repairing the damage he had done.”  In order to benefit from the continuing course of treatment 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 plaintiff in Horton was injured in the original surgery and a corrective surgery occurred 4-5 days later.  The plaintiff remained in the hospital after the corrective surgery for a little more than two weeks.  The court held that the “continuing course of treatment doctrine thus operate[d] to toll the statute of limitations only from the time of the original negligence ... until the performance of the corrective surgery” but not through the remainder of the plaintiff’s hospital stay.

The North Carolina Court of Appeals has further applied the continuing course of treatment doctrine.  In Whitaker v. Akers (2000), it stated that

Under the continuing course of treatment doctrine, the statute of limitations stops being tolled when the patient discovers not only that he is injured but also the negligent act that caused his injury. An injury may be readily apparent but the fact of wrong may lay hidden.  It is only when the plaintiff knew or should have known that this wrongful act caused his injury that the plaintiff loses the benefit of the continuing course of treatment doctrine.

In Whitaker, the plaintiff underwent surgery which included the removal of his prostate and lymph nodes.  He continued to be treated by the doctor for more than a year after the surgery.  The last treatment included a telephone conversation with a physician’s assistant and a prescription refill.

The court distinguished these facts from a previous case which held that an emergency room doctor’s prescription did not constitute a continuing course of treatment because in that case “plaintiff saw the physician only one time and never had any further contact with that physician.”  The court reasoned that in Whitaker, “the evidence shows that plaintiff had a continuous relationship with [the doctor] and that all of his treatment was given by [the doctor] or individuals who worked under [the doctor’s] employment and guidance.”

Most notably, the court stated that “under the facts presented, we now hold that the physician assistant's prescription refill constituted treatment under the continuing course of treatment doctrine.”

If you have been injured from medical negligence, contact an attorney at Rosensteel Fleishman Car Accident & Injury Lawyers (704) 714-1450 to discuss your options.