*1 THE OF APPEALS v. ALLEN SIDNEY (1994)] App. 138 [114 Disposition the summary, only post- we erroneous hold QDRO and that the and thus vacate both appreciation separation equitable constitutes an addressing what portion thereof. and the award consequent of the marital assets distribution remand, new consistent court should enter a trial (since a full- existing record relying upon оpinion, this additional evidence and unnecessary) receiving is blown trial only necessary as to correct errors iden- argument entertaining Smith, at See tified herein. part, vacated in remanded. part, Affirmed LEWIS JOHNSON and concur. Judges M.D., ALLEN, SIDNEY RALEIGH MEDICA SHIRLEY A. CYRIL SYSTEM, ASSOCIATES, L INC. and WAKE COUNTY HOSPITAL No. 9310SC568 1994) (Filed April (NCI4th)— Limitations, § medical Repose, and Laches —claim of treatment barred —continued course malpractice repose statute to was insufficient show
Plaintiff’s forecast evidence her 25 November during doctor treated defendant by the stay the condition created doctor’s hospital therapy failure to administer radiation entered for defendants summary judgment properly action was ground malpracticе on the set forth in N.C.G.S. four-year barred statute l-15(c), on 20 November complaint where filed 1992; presented affidavits doctor and provide that the doctor did not records hospital technician 1988; plain- after October care or treatment hospital the 25 November 1988 tiff evidence that personal physi- as her record listed defеndant doctor’s name that, during she did not see doctor although cian and stay, indicating a Medicare statement hospital this she received IN THE COURT OF APPEALS
SIDNEY v. ALLEN *2 that he in by billed her for services when he called advice, hospital for but did not plaintiff’s evidence reveal the doctor, date of allegedly the services rendered when he the hospital, was called or whether the services he plaintiff’s rendered related to in condition created 1982. 2d,
Am Jur Physicians, Surgeons, § and Other Healers 320. When statute of to run against limitations commences dentist, malpractice against physician, action or surgeon, similar practitioner. 80 ALR2d 368. (NCI4th)— Estoppel §
2. estoppel plead repose statutes of and —knowledge by limitation —concealment of facts
Defendants not estopped were from pleading statutes in repose and limitation malpractice medical action on the ground delayed that defendants her furnishing medical attorney records to her and thus concealed information from her where had she knowledge the facts claims were her, concealed delay by from defendants in supplying plaintiff’s medical records was not for delay a cause filing complaint. 2d,
Am Physi- §§ Jur Limitation of 431 et seq.; Actions cians, Surgeons, and Other Healers
Judge dissenting. JOHNSON Appeal by from order entered 10 March County 1993 Wake Superior by Judge Henry Court W. Hight, Heard in of Apрeals Jr. the Court 2 March 1994.
Carol plaintiff-appellant. M. Schiller for Alvis, P.A., Sousa, Young Moore Henderson & David P. Allen, Cyril A. M.D. and defendant-appellees Raleigh Medical for Associates. Poyner & Samuel 0. Southern and Robert Spruill, III, Crawford, defendant-appellee County Hospital Wake System, Inc. GREENE, Judge.
Shirley (plaintiff) a 10 Sidney appeals from March 1993 Associates, Cyril A. judgment granting Raleigh Medical IN THE COURT OF ALLEN
SIDNEY App. 138 (defendants) motion sum- System, Inc.’s County Hospital Wake of of limitation and based on statutes mary judgment action. malpractice this complaint against filed a de- 20 November Cyril alleging Court County Superior in Wake fendants (Dr. Allen) failing properly in 1982 negligent A. Allen choices, inform con- inform her of treatment treat plaintiff, treatment, record denying of his choice of sulting physician status, treatment, cor- up follow on her medical denying basis chemotherapy combined had received misimpression plaintiff rect the treatment, symptoms. continuing diagnose and radiation *3 to properly also that the other defendants failed аlleges Plaintiff alleged records. Plaintiff Dr. Allen and to track medical supervise to Wake Medical her 25 November 1988 admission during (the facility hospital operated Center the Hospital), (the System, Hospital System), Inc. the County Hospital Wake M.D., Allen, the Cyril . . concerning staff “consulted . medical care, accurately status and failed Plaintiffs medical [he] status or other medical staff on advise the Plaintiff the summary System a motion for Hospital treatment.” The made North Rules of to Rule 56 of the Carolina Civil pursuant that the January grounds plaintiffs on 29 1993 on the Procedure of limitation and the statutes applicable claims were barred summary judgment on partial Plaintiff made a motion for rеpose. of the statute of limitation. the issue evidence, Patterson plaintiff, in favorable to light The most (1970)(evidence 22, 28, 1, Reid, must 10 5 to non-movant light most favorable be considered 1982, with plaintiff diagnosed shows that in hearing), given chemotherapy Hospital Disease and Hodgkin’s Allen, from radiation by Dr. who recommendation requested (Dr. Zeitler), oncologist, a radiation Dr. Kenneth Zeitler oncologist. however, 1982; Dr. Allen did therapy in radiation recommended plaintiff He saw follow- plaintiff therapy. treat radiation not (RMA) Raleigh his at the Medical Associates up treatment at office The Hodgkin’s Disease Hospital through October and at who not re-enter the workforce. totally could plaintiff disabled Hospital admitted to the on November Plaintiff was including probable polymyositis, number of medical problems, for a anemia, urinary deficiency B-12 tract rhabdomyolysis, vitamin THE OF ALLEN SIDNEY v.
infection, and restrictive lung attending disease. The physician was Dr. David H. Gremillion. In she was referred a nephrologist for a which CT scan revealed of Hodgkin’s recurrence Disease for which plaintiff underwent chemotherapy therapy, radiation recommended Dr. Zeitler on 31 March 1992.
On 31 March Dr. plaintiff Robert Ornitz informed Dr. Zeitler had recommended to Dr. Allen therapy radiation which never received. By letters dated 3 August August September and 13 October 1992 and addressed to the manager officе of Dr. counsel for plain- tiff requested copy of the medical plaintiff. records of On August copy received a of her medical records from System. Hospital Allen mailed plaintiff’s medical records to her counsel on 24 October but the records did not include record medical treatment Dr. Allen on 21 October 1 February plaintiff’s сounsel copy received another plaintiff’s records from the Hospital. System’s of the support Hospital motion for judg-
ment, Dr. Allen stated in his affidavit that no time since “[a]t October I provided have or any care or treatment [RMA] nor been concerning consulted the care and treat- ment or any reason purpose.” Mаrtha Strickland (Ms. Strickland), Assistant Director of Medical Records *4 Technician, and certified Hospital as an Accredited Records stated in her affidavit that was on 25 admitted November and is in no documentation any the records of care or “[t]here [plaintiff] patient by Cyril of as a Dr. Allen time after her discharge from Wake Medical on or Center about 25, 1982, September including [plaintiffj’s November ad- mission, 21, 1988, except [plaintiff] on October when Dr. Allen sent ” to Wake Medical Center as out-patient.’ a ‘referred
Plaintiff, motion, System’s opposition Hospital stated in her affidavit that when she was admitted the Hospital to on 25 November “the doctors asked questions about who [hеr] my doctor was for Disease.” She Hodgkin’s “[djuring stated [her] November, 1988, ... hospitalization seeing I do not remember I getting but do remember a Medicare statement with his name iton for the services that he he rendered when in by called Wake for patient Medical Center advice.” Plaintiff’s IN THE COURT OF v. ALLEN
SIDNEY Allen” 1988 lists “C. on November for her hospitalization record personal physician. as her granting an order judge signed the trial 10 March summary on the judgment grounds for motion
defendants’ of limitation and claims are the statutes plaintiffs barred the North Rule moved to repose. pursuant After 10 March 1993 to correct the Rules of Civil Procedure Carolina signed judgment an order and amended judgment, order motion defendants’ grаnting 1993 and reflected March par- motion for and the denial summary judgment. tial (I) Dr. Allen treated are whether
The issues by the alleged created 1988 for the condition on 25 November to to radiation treatment of Dr. Allen administer failure (II) 1982; asserting from equitably estopped defendants are repose. the statute of of the statute of limitation and the defenses I by the statutes her claims are not barred argues Plaintiff on this basis repose and that of limitation disagree. We was error. 1-15(c), relevant statutes of containing the Stat. Gen. § com procedural of substantive and repose, consists
limitation
statute of
is known as the
component
The substantive
ponents.
no
an action be commenced
“in
event shall
provides
which
defendant giving
from the last act of the
years
more than four
1-15(c)
The procedural
rise
the cause
action.” N.C.G.S.
which
provides
as a statute of limitation
component is known
is
at the time
“deemed
accrue
malpractice
a cause
action
giving rise to
last act of the dеfendant
of the occurrence of the
Gunter,
Id.;
Stallings
action.”
cause of
disc. rev.
S.E.2d
readily
not
exception
injuries
apparent,
With an
malpractice.
of limitation for medical
years
period
three
is the
1-15(c).
N.C.G.S. §
*5
1992, plain-
20 November
the
was filed on
complaint
Because
the “last
statute of
unless
claim is barred
the
tiff’s
cause of action occurred
the
rise” to this
“giving
act” of
disputed that
the last
1988. It is not
on or after
November
THE
OF APPEALS
SIDNEY v. ALLEN
alleged negligent act of
giving
the defendants
rise to this cause
of
in 1982
action occurred
when Dr. Allen allegedly failed to treat
radiation therapy. Under the continuing course of
doctrine, however,
if Dr.
plain
Allen subsequently treated
tiff for the particular
condition
alleged
created
his
earlier act
of
that date
negligence,
of treatment
is the
act”
“last
within the
1-15(c).
of Section
meaning
Stallings, 99 N.C.
App. at
at 215.
within
Treatment
the
meaning
Stallings
both
includes
affirmative acts and omissions. Id. at
Defendants, who
moved for
judgment, produced the
affidavits of Dr. Allen and Ms. Strickland
that Dr.
establishing
treatment,
consulted,
Allen
provide any
did not
or
care
nor was he
concerning
plaintiffs treatment
or purpose
reason
after
1988.This
October
evidence satisfies defendants’ burden
prov-
ing
justified,
for them is
in that the statute
Brown,
of repose
plaintiffs
bars
See
claims.
Clark
134, 136-37,
393 S.E.2d
disc. rev.
327 N.C.
In evaluating whether evidence genuine raisеs issue trial, non-movant, plaintiff, as the must be given benefit reasonably all Collingwood drawn inferences. v. G.E. Real Estate *6 APPEALS OF 144 THE COURT v. ALLEN SIDNEY (1994)] App. 138 N.C. [114 (1989). 425, 63, 66, 427 The mere 376 S.E.2d 324 N.C. Equities, exist, however, without may dispute “that a factual possibility, more, a justify which to denial of basis upon is an insufficient Corp., 702 F.2d Posey Skyline summary judgment.” motion for (7th 960, denied, Cir.), 102, 78 L. 336 464 U.S. Ed. 2d 106 cert. Watkins, 447, 455, 214, (1983); (1975). 219 S.E.2d 288 N.C. Dendy v. the non-movant has satisfied determining In whеther burden, a motion theory underlying is to refer to the helpful “it 219 S.E.2d at Dendy, 288 N.C. for directed verdict.” directed for the movant it clear that a verdict would be is “[I]f on the hearing at the motion on the evidence [based] [all] may summary summary judgment for judgment, motion Id. granted.” properly be case, merely suggests evidence that ques-
In this plaintiff’s on whether Dr. Allen treаted her may tion of exist as to fact by Dr. Allen’s that was created 25 November 1988for condition however, not, is such The evidence alleged negligence accept might adequate support a “reasonable mind as that [it] Arnold, App. See Hines v. N.C. conclusion.” [such] 404 S.E.2d (1991) necessary to (describing evidence defeat verdict). therefore, Plaintiff, in her has failed motion for directed genuine are issues for trial and sum- showing burden of that there mary judgment appropriate. plaintiff’s argument we holding, reject so denied the af- grounds should been on the have Plaintiff Dr. Allen and Ms. Strickland are not credible.
fidavits of
Ms. Strickland have an interest
that because Dr. Allen and
case,
claims
“inherеntly
testimony
suspect.”
disagree.
is
We
their
if
“inherently suspect” only
is
testimony
witness’s
An interested
within the
testimony
peculiarly
facts
offered “concern[s]
Co.,
Holley
Burroughs
Wellcome
of the witness.”
knowledge
(1985),
736, 744,
aff’d,
330 S.E.2d
N.C.
case,
In this
the matters stated in
*7 SIDNEY App. 138 II from [2] In the pleading alternative, the statutes of limitation argues that defendants and repose because are estopped they the Plaintiff’s medical treat facts concerning “concealed relevant disagree. ment.” Wе of limitation defense to statutes Estoppel recognized is a Smith, App. v. 77 N.C. Bldg. Supply Blizzard repose, (1985), cert. 335 S.E.2d (1986), weight the greater and must be established Co., Ins. Mercury Duke v. St. Paul the evidence. Univ. of however, not, 36, 42 It is available 384 S.E.2d
App. very of the knowledge who has including plaintiff, to a this party, her. Parker wrongfully were concealed from facts shе claims Co., Thompson-Arthur Paving 626, aware, case, on 31 March 628-29 became this radiation treatment that Dr. Zeitler had recommended very This claims concealed 1982. is the information Thus, her the defendants until after October from medical records delay supplying plaintiff’s delay filing attorney her was not a cause for in her of proof. has failed burden complaint, Therefore, to assert the defenses estopped defendants are not limitation and repose. the statutes of Affirmed.
Judge concurs. JOHN
Judge separate opinion. dissents JOHNSON dissenting. Judge JOHNSON that to reverse on the basis
I dissent and vote respectfully of material genuine issue presents forecast of the evidence in a continued course engaged to whether Dr. Allen fact as It is undisputed 25 November 1988. plaintiff through 25on November to Wake Medical Center was admitted history, including her medical orally where she gave Disease, When history attending physicians. Hodgkin’s Disease, Hodgkin’s for her attending physician who asked The records Dr. Allen. plaintiff identified IN THE COURT OF APPEALS DELLINGER CITY OF CHARLOTTE Wake Medical verify Center further Allen was identified (in as her treating physician and note the of day military time hours) he was concerning plaintiff’s contacted care on 25 November argue Defendants this forecast of evidence does not show that Dr. Allen was asked about plaintiffs Hodgkin’s Disease when he was contacted. It is reasonable to assume that he was weather, not contacted the physicians to discuss the but instead to discuss the health of plaintiff, condition including her Hodgkin’s that, thereafter, Disease. This is bolstered the forecast of evidence plaintiff received a Medicare statement reflecting that Dr. Allen had billed for the services he an evaluation of plaintiff’s condition upon rendered being consulted for
on November 1988. I believe this forecast of evidence is such that “a reasonable might mind accept as adequate to support conclusion [it] [that *8 Dr. Allen treated on 25 November 1988 for her condition that was created his alleged negligence See Hines 1982].” Arnold, (1991)(evidence verdict). necessary Therefore, to defeat motion for directed plain- tiff’s action is time not barred. Municipal DELLINGER, CHARLOTTE,
WILLIAM G. Petitioner CITY OF Corporation; THE CHARLOTTE-MECKLENBURG PLANNING COMMIS SION; CRAMPTON, JR., McCLURE, R. MARTIN ANNE J. SARA Respondents TABOR, SPENCER and H. JOHN No. 9326SC541 1994) (Filed April (NCI3d)— Municipal Corporations 30.10 disapproval subdivi- — plan —requirement sion site of right-of-way reservation planning commission’s failure to follow subdivision ordinance
Respоndent planning commission’s denial of petitioner’s plan subdivision site apartment complex an was not sup- ported substantial evidence where the plan site was dis- approved because it failed to a right-of-way reserve for a proposed thoroughfare, but the planning commission and its staff failed procedures to follow in the subdivision ordinance by requiring reservation of the right-of-way without finding (1) the reservation does not deprivation result