Appellate Developments in Medical Negligence

by Karen M. Rabenau

In a unanimous decision, the North Carolina Supreme Court affirmed that the continuing course of treatment applies to hospital defendants in the same manner it applies to other health care professionals. ¹⁵ By a 4-3 majority, the Court then went on to limit the doctrine as previously developed by the Court of Appeals. ¹⁶ The specific issue in the case was whether the last act of the defendant from which the statute of limitations would run was the date of the patient’s corrective surgery or the date of patient’s discharge from the hospital.

In Horton, a patient brought suit against a hospital and others due to alleged negligence of the hospital's nursing staff in failing to realize that she was not voiding following a hysterectomy, allowing her bladder to become distended for 24 hours and causing injury to her urinary system. The nurse’s negligence resulted in the need for a second, corrective surgery during this same admission. Following the corrective surgery, the plaintiff remained hospitalized for over two weeks before discharge. On review, the Supreme Court held by a 4-3 majority that the statute of limitations ran from the date of the corrective surgery, not the date of discharge, thus plaintiff’s action was properly dismissed by the trial court as untimely:

The doctrine tolls the running of the statute for the period between the original negligent act and the ensuing discovery and correction of its consequences; the claim still accrues at that time of the original negligent act or omission. . . . To benefit from this 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. ¹⁷

Rejecting the Court of Appeals’ analysis that the date of discharge was the operative date from which to calculate the three year statute of limitations, the Supreme Court held that:

[f]ailure to repair the original damage provides the rationale for tolling the statute; however, the tolling thus continues only until such damage is remedied. . . . While plaintiff alleges complications associated with her recovery from these procedures, she does not allege that defendant Hospital should or could have take further action to remedy the damage occasioned by its original negligence. . . . Plaintiff has failed to sustain her burden of alleging that further corrective action was required to remedy her original damage, thereby tolling the statute beyond the corrective surgery." ¹⁸

The dissenting opinion, written by Justice Frye, and joined by Chief Justice Mitchell and Justice Lake, explained that in the physician/patient context, "the statute is tolled until the conclusion of the physician’s treatment of the patient, so long as the patient has remained under the continuous treatment of the physician for the injuries which gave rise to the cause of action." ¹⁹ Applying this rationale to the hospital’s treatment, Plaintiff remained hospitalized and received treatment for the injuries complained of up through the date of discharge. Thus the date of discharge was the triggering date from which to determine whether the statute of limitations had run, and plaintiff’s action was not time barred. The 4-3 split on this decision and the strength of the dissent’s reasoning suggests that additional appellate review may be necessary for the Court to refine its standard on "an affirmative act or an omission related to the original act, omission or failure which gave rise to the claim."

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