Sidney v. Allen

441 S.E.2d 561, 114 N.C. App. 138, 1994 N.C. App. LEXIS 300
CourtCourt of Appeals of North Carolina
DecidedApril 5, 1994
Docket9310SC568
StatusPublished
Cited by6 cases

This text of 441 S.E.2d 561 (Sidney v. Allen) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sidney v. Allen, 441 S.E.2d 561, 114 N.C. App. 138, 1994 N.C. App. LEXIS 300 (N.C. Ct. App. 1994).

Opinions

GREENE, Judge.

Shirley A. Sidney (plaintiff) appeals from a 10 March 1993 judgment granting Cyril A. Allen, Raleigh Medical Associates, and [140]*140Wake County Hospital System, Inc.’s (defendants) motion for summary judgment based on the statutes of limitation and of repose in this medical malpractice action.

On 20 November 1992, plaintiff filed a complaint against defendants in Wake County Superior Court alleging that Dr. Cyril A. Allen (Dr. Allen) was negligent in 1982 by failing to properly treat plaintiff, inform her of treatment choices, inform the consulting physician of his choice of denying treatment, record the basis for denying treatment, follow up on her medical status, correct the misimpression plaintiff had received combined chemotherapy and radiation treatment, and diagnose her continuing symptoms. Plaintiff also alleges that the other defendants failed to properly supervise Dr. Allen and to track medical records. Plaintiff alleged that during her 25 November 1988 admission to Wake Medical Center (the Hospital), the hospital facility operated by defendant Wake County Hospital System, Inc. (the Hospital System), the medical staff “consulted . . . Cyril A. Allen, M.D., concerning the Plaintiffs medical status and care, and that [he] failed to accurately advise the Plaintiff or the other medical staff on her medical status and treatment.” The Hospital System made a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure on 29 January 1993 on the grounds that the plaintiffs claims were barred by the applicable statutes of limitation and repose. Plaintiff made a motion for partial summary judgment on the issue of the statute of limitation.

The evidence, in the light most favorable to plaintiff, Patterson v. Reid, 10 N.C. App. 22, 28, 178 S.E.2d 1, 5 (1970) (evidence must be considered in light most favorable to non-movant in summary judgment hearing), shows that in 1982, plaintiff was diagnosed with Hodgkin’s Disease and was given chemotherapy at the Hospital by Dr. Allen, who requested a recommendation from a radiation oncologist. Dr. Kenneth Zeitler (Dr. Zeitler), a radiation oncologist, recommended radiation therapy in 1982; however, Dr. Allen did not treat plaintiff with radiation therapy. He saw plaintiff for followup treatment at his office at the Raleigh Medical Associates (RMA) and at the Hospital through 21 October 1988. The Hodgkin’s Disease totally disabled plaintiff who could not re-enter the workforce.

Plaintiff was admitted to the Hospital on 25 November 1988 for a number of medical problems, including probable polymyositis, rhabdomyolysis, vitamin B-12 deficiency and anemia, urinary tract [141]*141infection, and restrictive lung disease. The attending physician was Dr. David H. Gremillion. In 1991, she was referred by a nephrologist for a CT scan which revealed recurrence of Hodgkin’s Disease for which plaintiff underwent chemotherapy and radiation therapy, recommended by Dr. Zeitler on 31 March 1992.

On 31 March 1992, Dr. Robert Ornitz informed plaintiff that Dr. Zeitler had recommended radiation therapy to Dr. Allen in 1982 which plaintiff never received. By letters dated 3 August 1992, 25 August 1992, 9 September 1992, and 13 October 1992 and addressed to the office manager of Dr. Allen, counsel for plaintiff requested a copy of the medical records of plaintiff. On 27 August 1992, plaintiff received a copy of her medical records from the Hospital System. Dr. Allen mailed plaintiff’s medical records to her counsel on 24 October 1992, but the records did not include any record of medical treatment by Dr. Allen on 21 October 1988. On 1 February 1993, plaintiff’s counsel received another copy of plaintiff’s records from the Hospital.

In support of the Hospital System’s motion for summary judgment, Dr. Allen stated in his affidavit that “[a]t no time since October 21, 1988, have I or [RMA] provided any care or treatment to the plaintiff nor been consulted concerning the care and treatment of the plaintiff for any reason or purpose.” Martha Strickland (Ms. Strickland), Assistant Director of Medical Records for the Hospital and certified as an Accredited Records Technician, stated in her affidavit that plaintiff was admitted on 25 November 1988, and “[t]here is no documentation in the records of any care or treatment of [plaintiff] as a patient by Dr. Cyril A. Allen at any time after her discharge from Wake Medical Center on or about September 25, 1982, including [plaintiffj’s November 25, 1988, admission, except on October 21, 1988, when Dr. Allen sent [plaintiff] to Wake Medical Center as a ‘referred out-patient.’ ”

Plaintiff, in opposition to the Hospital System’s motion, stated in her affidavit that when she was admitted to the Hospital on 25 November 1988, “the doctors asked [her] questions about who [her] doctor was for Hodgkin’s Disease.” She stated “[djuring my hospitalization in November, 1988, ... I do not remember seeing Dr. Allen, but I do remember getting a Medicare statement with his name on it for the services that he rendered when he was called in by Wake Medical Center for advice.” Plaintiff’s patient [142]*142record for her hospitalization on 25 November 1988 lists “C. Allen” as her personal physician.

On 10 March 1993, the trial judge signed an order granting defendants’ motion for summary judgment on the grounds that the plaintiffs claims are barred by the statutes of limitation and repose. After plaintiff moved pursuant to Rule 60 of the North Carolina Rules of Civil Procedure to correct the 10 March 1993 order and judgment, an amended order and judgment was signed 18 March 1993 and reflected the granting of defendants’ motion for summary judgment and the denial of plaintiff’s motion for partial summary judgment.

The issues presented are whether (I) Dr. Allen treated plaintiff on 25 November 1988 for the condition created by the alleged failure of Dr. Allen to administer radiation treatment to plaintiff in 1982; and (II) defendants are equitably estopped from asserting the defenses of the statute of limitation and the statute of repose.

I

Plaintiff argues that her claims are not barred by the statutes of limitation and repose and that summary judgment on this basis was error. We disagree.

N.C. Gen. Stat. § 1-15(c), containing the relevant statutes of limitation and repose, consists of substantive and procedural components. The substantive component is known as the statute of repose which provides “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.” N.C.G.S. § 1-15(c) (1983). The procedural component is known as a statute of limitation which provides that a cause of action for malpractice is “deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action.” Id.; Stallings v. Gunter, 99 N.C. App. 710, 714, 394 S.E.2d 212, 215, disc. rev. denied, 327 N.C. 638, 399 S.E.2d 125 (1990). With an exception for injuries not readily apparent, three years is the period of limitation for medical malpractice. N.C.G.S. § 1-15(c).

Because the complaint was filed on 20 November 1992, plaintiff’s claim is barred by the statute of repose unless the “last act” of the defendants “giving rise” to this cause of action occurred on or after 19 November 1988.

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Sidney v. Allen
441 S.E.2d 561 (Court of Appeals of North Carolina, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
441 S.E.2d 561, 114 N.C. App. 138, 1994 N.C. App. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sidney-v-allen-ncctapp-1994.