Where, upon waiver of jury trial in accordance with G.S. 1-184, the court makes no specific findings of fact but enters judgment of involuntary nonsuit, the only question presented is whether the evidence, taken in the light most favorable to plaintiff, would support findings of fact upon which plaintiff could recover.
Goldsboro v. R. R.,
The legal obligations of a physician or surgeon who undertakes to treat a patient are well established.
Nash v. Royster,
The evidence was sufficient to support these findings of fact: (1) that defendant, in performing the operation of 20 July, 1951, introduced the lap-pack into plaintiff’s body; (2) that he closed the incision without first removing the lap-pack; (3) that this was a breach of defendant’s legal duty to exercise reasonable care and diligence in the application of his knowledge and skill to plaintiff’s case; and (4) that injury to plaintiff proximately resulted therefrom.
It has been established by this Court, and generally, that the leaving of such a foreign substance in the patient’s body at the conclusion of an operation “is so inconsistent with due care as to raise an inference of negligence.”
Mitchell v. Saunders,
*367 The crucial question is this: Was the evidence sufficient to support a finding of fact that this action was commenced within three years from the time plaintiff’s cause of action accrued?
The period prescribed for the commencement of an action for malpractice based on negligence is three years from the time the cause of action accrues. G.S. 1-15; G.S. 1-46; G.S. 1-52(5);
Lewis v. Shaver,
“In general a cause or right of action accrues, so as to start the running of the statute of limitations, as soon as the right to institute and maintain a suit arises, . . .” 54 C.J.S., Limitation of Actions sec. 109; 34 Am. Jur., Limitation of Actions sec. 113;
Aydlett v. Major & Loomis Co.,
“It is a firmly established rule that with certain exceptions, such as in the cases of covenants and indemnity contracts, the occurrence of an act or omission, whether it is a breach of contract or of duty, whereby one sustains a direct injury, however slight, starts the statute of limitations running against the right to maintain an action. It is sufficient if nominal damages are recoverable for the breach or for the wrong, and it is unimportant that the actual or substantial damage is not discovered or does not occur until later. However, it is well settled that where an act is not necessarily injurious or is not an invasion of the rights of another, and the act itself affords no cause of action, the statute of limitations begins to run against an action for consequential injuries resulting therefrom only from the time actual damage ensues.” 34 Am. Jur., Limitation of Actions sec. 115.
Our decisions support this general statement. Thus, where the defendant dug ditches on its land, the cause of action accrued when surface water was actually diverted by these ditches from its natural course so as to flood and damage plaintiff’s crop and land. Until then there had been no invasion of plaintiff’s rights.
Hocutt v. R. R.,
“It is well settled that in an action for damages, resulting from negligent breach of duty, the statute of limitations begins to run from the breach, from the wrongful act or omission complained of, without regard for the time when the harmful consequences were discovered. (Citations omitted.)”
Devin, J.
(later
C. J.),
in
Powers v. Trust Co.,
This rule, well settled in this jurisdiction, has been expressly applied to malpractice cases based on the alleged negligence of the defendant.
Lewis v. Shaver, supra; Connor v. Schenck,
It is inescapable that plaintiff’s cause of action accrued on 20 July, 1951, when defendant closed the incision without first removing the lap-pack from plaintiff’s body. Defendant’s failure thereafter to detect or discover his own negligence in this respect did not affect the basis of his liability therefor. Earlier discovery and removal of the lap-pack would bear upon the extent of the injury proximately caused by defendant’s negligent conduct.
It is noted that, apart from allowing the lap-pack to remain in plaintiff’s body, there is no allegation or evidence as to any negligence of defendant in the performance of the operation on 20 July, 1951. It is noted further that there was no evidence sufficient to warrant a finding in support of plaintiff’s allegations that, in relation to plaintiff’s condition as of November, 1952, defendant failed to exercise due care either in the performance of the operation of 19 November, 1952, or in his subsequent treatment of plaintiff.
Moreover, plaintiff did not base his cause of action upon allegations that defendant negligently failed to discover the fact or results of his original negligence prior to 17 November, 1952, but alleged that defendant “fraudulently concealed from the plaintiff ... his act and deed in leaving within the body of the plaintiff” the said lap-pack. Suffice to say, plaintiff’s evidence was not sufficient to warrant a finding in support of his allegations as to defendant’s alleged fraudu
*369
lent concealment of material facts. Hence, we need not consider the circumstances under which a defendant’s fraudulent concealment of material facts would toll the running of the statute of limitations. For cases pertinent to this subject, see
In malpractice actions, it is generally held that the cause of action accrues from the date of the wrongful act or omission.
In
Cappuci v. Barone,
In Missouri, by statute, a different rule applies. It is expressly provided, in relation to the statute of limitations, that “the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, . . .” Rev. St. Mo. 1939, sec. 1012.
Unless superseded by statute, the rule stated in Cappuci v. Barone, supra, is generally recognized. However, in some jurisdictions, its application to specific factual situations has been modified. These modifications are indicated by the decisions cited below.
In
Hotelling v. Walther,
The Supreme Court of California, overruling its prior decision in
Gum v. Allen,
In
Lindquist v. Mullen,
Our decisions impel the conclusion that plaintiff’s cause of action accrued 20 July, 1951, immediately upon the closing of the incision. To hold otherwise would be to say that plaintiff did not then have a cause of action against defendant. This Court has rejected the view that the cause of action accrues when the injurious consequences are or should have been discovered. Lewis v. Shaver, supra; Connor v. Schenck, supra; Powers v. Trust Co., supra, and cases cited. The statute of limitations begins to run from the time the cause of action accrues. The only exception, as pointed out in Lewis v. Shaver, supra, relates to actions grounded on allegations of fraud and mistake. G.S. 1-52(9).
Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff’s cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all.
It is not for us to justify the limitation period prescribed for actions such as this. See
Albert v. Sherman,
These facts are noteworthy. Whether plaintiff may be considered as under defendant’s professional care and treatment up to and including the twelve-months checkup, the twelve-months checkup, occurring more than three years before the institution of this action, appears to have marked the termination of their relationship; and, if their relationship terminated then, it would appear that, both under the rule of Hotelling v. Walther, supra, relating to a continuing course of treatment, and under the California rule, plaintiff’s cause of action then accrued.
It is noted further that on 17 November, 1952, plaintiff was fully and frankly advised by defendant of the facts constituting the alleged negligence on which plaintiff based his cause of action. Even so, the cause of action was not commenced until 14 November, 1955, nearly three years from 15 November, 1952, the date on which plaintiff returned to defendant for further professional treatment.
*371 Decision is based on the ground that plaintiff’s cause of action accrued 20 July, 1951.
The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time.
Butler v. Bell,
The judgment of involuntary nonsuit is sustained on the ground that plaintiff’s action was not commenced within three years from the date his cause of action accrued.
Affirmed.