Udzinski v. Lovin

583 S.E.2d 648, 159 N.C. App. 272, 2003 N.C. App. LEXIS 1508

• Court: Court of Appeals of North Carolina
• Decided: August 5, 2003
• Docket: COA02-480
• Status: Published

Opinions

ELMORE, Judge.

Louise Udzinski (Mrs. Udzinski) had medical examinations yearly, and a chest x-ray as a part of the annual exam. On 17 February 1997 Dr. Jeffery D. Lovin (Dr. Lovin) interpreted Mrs. Udzinski’s chest x-ray, failing at that time to diagnose that the decedent had a “progressive interval increase in a subtle right middle lobe mass” which may have indicated lung cancer. Dr. Lovin rendered no further medical care to Mrs. Udzinski after that time. From x-rays taken on 23 February 1998, Mrs. Udzinski was diagnosed by a Dr. Wieslawa Pekal as having cancer which was incurable due to its advanced stage. Despite multiple rounds of chemotherapy and other treatments, Mrs. Udzinski died from lung cancer on 1 April 1999 at the age of seventy-two.

Her husband, Victor Udzinski (Mr. Udzinski), suffered from deep depression and financial hardship in the months that followed his wife’s passing. He died on 17 October 1999.

Steve Udzinski (plaintiff), the Udzinski’s only child and executor of their estates, filed a complaint for damages on 27 July 2001 on their behalf. Prior to the complaint, on 27 March 2001, in response to plaintiffs motion, the trial court granted an “ORDER GRANTING EXTENSION OF THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION PURSUANT TO N.C.R. CIV. P. 9(j).” The order gave the plaintiff an additional 120 days to file the medical malpractice claim. The complaint, filed 27 July 2001, alleged negligence of Dr. Lovin, vicarious liability of Haywood Medical Imaging, P.C., vicarious liability and negligence of Haywood Regional Medical Center, breach of contract, “severe emotional distress” of Mr. Udzinski, and wrongful death.

The complaint as it pertained to Haywood Regional was voluntarily dismissed, and the complaint against Dr. Lovin and Haywood Medical Imaging remained. The remaining complaint was dismissed with prejudice by the trial court, citing the statute of repose contained in section l-15(c) of the General Statutes, which pertains to medical malpractice claims. Plaintiff appeals the judgment dismissing the complaint.

I.

The issue before this Court is whether the trial court properly dismissed the plaintiffs claim as barred by the statute of repose. The standard of review is de novo regarding the limitations issue. Ordinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact. But where the relevant facts are not in dispute, all that remains is the question of limitations which is a matter of law. Poultry Co. v. Oil Co., 272 N.C. 16, 21, 157 S.E.2d 693, 697 (1967); Yancey v. Watkins, 17 N.C. App. 515, 519, 195 S.E.2d 89, 92, cert. denied, 283 N.C. 394, 196 S.E.2d 277 (1973). Here, the issue is whether the trial court properly dismissed the complaint as barred by the statute of repose contained in N.C. Gen. Stat. § l-15(c).

II.

The plaintiff and defendant disagree in arguments on appeal as to the exact nature of the complaint. Plaintiff contends that this is a wrongful death claim, which is the basis for his argument that the wrongful death statute of limitations should apply. Defendant asserts that this is a medical malpractice claim, and therefore N.C. Gen. Stat. § 1-15(c) applies and bars plaintiffs claim. Both a wrongful death claim and the underlying medical malpractice claim were articulated, even if imperfectly, in the complaint. However, both the wrongful death claim and the medical malpractice claim are barred by the limitations statutes, and therefore the complaint fails to articulate a claim for relief and was properly dismissed by the trial court.

III.

We must first determine the nature of the complaint. For the life of this case at the trial level, it has been treated as a medical malpractice claim. The order which extended the statute of limitations was entitled “ORDER GRANTING EXTENSION OF THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION PURSUANT TO N.C.R. CIV. P. 9(j).” Plaintiff made no objection to the claim being characterized as a medical malpractice claim, and did not correct the court in the complaint. Since both plaintiff and defendant recognize the medical malpractice claim, we are left to determine whether the plaintiff also articulated a wrongful death claim.

The plaintiff has asserted this claim as one which entitled him personally to damages. The complaint, in the section entitled “damages,” included a claim for “the reasonable value of services, protection, care and assistance of the decedent [Mrs. Udzinski], the loss of society, companionship, comfort, love, care, affection, guidance, kindly offices, advice of the decedent and lost income.” These are damages alleged that “plaintiff is entitled to recover,” with the damages of Mr. Udzinski alleged in the subsequent sentence. In a wrongful death action, the personal representative of a decedent, as such, has no beneficial interest in a recovery and is therefore not the real party in interest. Long v. Coble, 11 N.C. App. 624, 628, 182 S.E.2d 234, 237, cert. denied, 279 N.C. 395, 183 S.E.2d 246 (1971). Therefore, plaintiff cannot personally recover some of the damages which he seeks.

However, in form and in some allegations for damages, the complaint was brought by plaintiff as administrator of the decendents’ estates in his official capacity. This is appropriate for a wrongful death claim. Hall v. R. R., 146 N.C. 251, 59 S.E. 879 (1907). The plaintiff alleged negligence and a death as a direct and proximate result. He made a claim for damages pursuant to the wrongful death statute, N.C. Gen. Stat. § 28A-18-2. He also prayed the court for recovery “for personal injuries and wrongful death.” Plaintiff thus properly alleged a wrongful death cause of action, of which the medical malpractice claim was the basis.

We note at this point that the complaint, upon the scrutiny which this appeal has demanded, has proven unclear and ambiguous in the nature of the relief requested. In the absence of a clear and unambiguously pleaded complaint, a plaintiff will not be able to assert whatever form would be most beneficial to the argument he chooses to later make upon appeal. However,

[a] claim for relief should not be dismissed unless it appears beyond doubt that the party is entitled to no relief under any state of facts which could be presented in support of the claim. . . . Therefore, the essential question on a Rule 12(b)(6) motion, is whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory.

Keys v. Duke University, 112 N.C. App. 518, 520, 435 S.E.2d 820, 821 (1993).

Even if not perfectly worded and jumbled with other claims, plaintiff has sufficiently alleged a wrongful death claim in addition to and based on his underlying medical malpractice claim.

We next determine the effect of the limitations statute on the medical malpractice claim. Because this is a medical malpractice claim, it falls within the purview of N.C. Gen. Stat. § l-15(c), the statute governing professional malpractice claims. The issue raised on appeal pertains to the statute of repose, and thus is distinct from a simple statute of limitations issue because the repose statute vests the defendant with an immunity from suit, and thus negates the claim altogether. When the statue of repose has run, the immunity is absolute.

N.C. Gen. Stat. § l-15(c), establishes a four-year statute of repose and a three-year statute of limitations. McGahren v. Saenger, 118 N.C. App. 649, 652, 456 S.E.2d 852, 853, disc. review denied, 340 N.C. 568, 460 S.E.2d 318-19 (1995). Section 1-15(c) provides in pertinent part:

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 . . . 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[.]

N.C. Gen. Stat. § l-15(c) (2001) (emphasis added).

This statute creates a statute of limitations and a statute of repose, both of which are based upon the date of the “last act of the defendant giving rise to the cause of action.” Id.; Sharp v. Teague, 113 N.C. App. 589, 593, 439 S.E.2d 792, 795 (1994), disc. review improvidently allowed, 339 N.C. 730, 456 S.E.2d 771 (1995). Our Supreme Court has stated:

Statutes of limitation are generally seen as running from the time of injury, or discovery of the injury in cases where that is difficult to detect. They serve to limit the time within which an action may be commenced after the cause of action has accrued. Statutes of repose, on the other hand, create time limitations which are not measured from the date of injury. These time limitations often run from defendant’s last act giving rise to the claim or from substantial completion of some service rendered by defendant.

Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 234 n. 3, 328 S.E.2d 274, 276-77 n. 3 (1985). A statute of repose “serves as an unyielding and absolute barrier that prevents a plaintiffs right of action even before his cause of action may accrue.” Black v. Littlejohn, 312 N.C. 626, 633, 325 S.E.2d 469, 475 (1985) (citations omitted). Therefore, if the statute of repose has run, plaintiffs action is barred. Nationsbank of N.C. v. Parker, 140 N.C. App. 106, 111, 535 S.E.2d 597, 600 (2000). See also Hargett v. Holland, 337 N.C. 651, 447 S.E.2d 784, reh’g denied, 338 N.C. 672, 453 S.E.2d 177 (1994) (holding that a legal malpractice claim was barred by the statute of repose, although filed within the statute of limitations, under N.C. Gen. Stat. § l-15(c)).

The last act of Dr. Lovin potentially giving rise to a claim was his diagnosis in February of 1997. The cancer was diagnosed in February of 1998 by Dr. Zlatev. In April of 1999 Mrs. Udzinski passed away. In March of 2001 an order was issued granting an extension of the statute of limitation, and in July of 2001 the complaint was filed, more than four years after the last act giving rise to the complaint.

This Court has determined that section l-15(c) of the General Statutes was passed by the General Assembly in an attempt to preserve medical treatment and control malpractice insurance costs, both of which were threatened by the increasing number of malpractice claims. Roberts v. Durham County Hospital Corp., 56 N.C. App. 533, 540, 289 S.E.2d 875, 880 (1982), aff'd per curium, 307 N.C. 465, 298 S.E.2d 384 (1983). In pursuit of this legislative aim, the repose statute:

serves as an unyielding and absolute barrier that prevents a plaintiffs right of action even before his cause of action may accrue . . . [and has] the effect of granting the defendant an immunity to actions for malpractice after the applicable period of time has elapsed.

Black v. Littlejohn, 312 N.C. 626, 633, 325 S.E.2d 469, 475 (1985) (citations omitted).

We therefore affirm the trial court’s order dismissing the complaint.

IV.

We next consider the effect of the limitations statute on the wrongful death claim. The trial court dismissed the complaint only on the basis of the statute of repose in section l-15(c), and the dismissal would be in error if that statute did not govern all claims in the complaint. However, the error is harmless if the remaining claim is also barred, and the judgment that the plaintiff did not state a claim under N.C.R. Civ. P. 12(b)(6) would have been appropriate.

An action for wrongful death is an action created by statute, and distinct from any underlying claims, even the claim upon which the wrongfulness of the death depends. The limitations issue in a wrongful death claim is likewise distinct from that of the underlying claims. See King v. Cape Fear Mem. Hosp., 96 N.C. App. 338, 341, 385 S.E.2d 812, 814 (1989) (analyzing the limitations issue in a wrongful death claim separately from underlying claims of medical malpractice, intentional infliction of mental distress, and loss of consortium), disc. review denied, 326 N.C. 265, 389 S.E.2d 114 (1990).

The statute of limitations for a wrongful death claim is found in section 1-53(4) of the General Statutes, and was construed by the Supreme Court in the case of Dunn v. Pacific Employers Ins. Co., 332 N.C. 129, 418 S.E.2d 645 (1992). The Dunn case concerned a widow’s wrongful death claim against her husband’s employer based on an occupational disease contracted by her husband.

Section 1-53 provides a two year general statute of limitations for each of the specified subsections. Subsection (4) states:

(4) Actions for damages on account of the death of a person caused by the wrongful act, neglect or fault of another under G.S. 28A-18-2; the cause of action shall not accrue until the date of death. Provided that, whenever the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. l-15(c) or 1-52(16), no action for his death may be brought.

N.C. Gen. Stat. § 1-53(4) (2001).

The Court in Dunn established a two-part test whereby the wrongful death claim was not barred if it was: 1) instituted within two years of decedent’s death, and 2) on the date of her death the decedent’s claim for injury would not have been time-barred. Dunn at 133, 418 S.E.2d at 647. The Court noted that a claim for wrongful death is “distinct and separate” from the underlying claim for injury. The Dunn Court also reasoned that it was the intent of the General Assembly not to cut short the time period for filing a wrongful death claim, but only to provide a limitations defense to a wrongful death action when the underlying claim for injury had become time-barred during the decedent’s life. Id. at 134, 418 S.E.2d at 647-48.

We note that in the Dunn case there was no allegation of medical malpractice, and the claim at the time of complaint was not barred by a statute of repose in l-15(c), but instead fell within the purview of 1-52(16) which deals with personal injury claims. The same analysis, however, applies to a wrongful death claim based on an underlying claim brought under l-15(c), since l-15(c) is specifically referred to in 1-53(4) in same way as section 1-52(16).

On the date of Mrs. Udzinski’s death, the medical malpractice action was not barred by the medical malpractice limitations statute as it was within three years of the last act giving rise to the claim. So the second part of the Dunn test was satisfied.

The complaint, however, was filed more than two years after the date of death, failing the first part of the Dunn test. An extension of the statute of limitations as to the medical malpractice claim was sought by the plaintiff, and an order was filed by the trial court on 27 March 2001. The order was captioned “ORDER GRANTING EXTENSION OF THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION PURSUANT TO N.C.R. CIV. P. 9(j),” and extended the statute by “no more than 120 days in order to comply with and pursuant to N.C.R. Civ. P. 9(j).” This order clearly pertained only to the medical malpractice claim, and not a wrongful death claim. Because the medical malpractice claim was not time-barred at the time of Mrs. Udzinski’s passing, there was no further issue of the viability of that claim for the purpose of supporting a wrongful death action. However, the extension was not directed to, and thus was not effective to extend, the wrongful death time limit.

Mrs. Udzinski passed away on 1 April 1999. The plaintiff filed the complaint on 27 July 2001, more than two years later. The action for wrongful death was thus barred by the statute of limitations.

Both claims being time-barred, the complaint did not state a claim upon which relief could be granted. The order of the trial court dismissing the complaint under Rule 12(b)(6) is therefore

Affirmed.

Judge HUNTER concurs by separate opinion. Judge BRYANT dissents.