Byrd v. Hancock
Byrd v. Hancock
Opinion of the Court
In ordering partial summary judgment for defendant the trial judge ruled that “any claim for any acts or omissions which occurred prior to 22 August 1982” (three years before suit was filed) is barred by G.S. 145(c). The ruling is erroneous. G.S. 145(c) provides that except where otherwise provided by statute, the statute of limitations for medical malpractice actions is three years and the cause of action is deemed “to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action.” (Emphasis supplied.) According to plaintiffs evidence the last act of the defendant giving rise to the cause of action occurred on 25 August 1982 when defendant failed to note from the X-rays taken that day that the fractured bones of plaintiffs leg were healing in an improper position and failed to take steps to correct the deformity that developed; and having instituted suit within three years of that day he is not barred from relying upon acts or omissions that occurred before then, since under the terms of the statute his cause of action accrued on that day, rather than earlier. In view of the evidence that he examined and X-rayed plaintiffs leg on 25 August 1982, defendant’s argument that plaintiffs failure to keep the 2 July 1982 appointment terminated the physician-patient relationship as a matter of law is unavailing. For that matter defendant’s own affidavit, even though it contains a denial to the contrary, indicates that he examined plaintiffs injured leg on 25 August 1982; for in it he states as a fact, which if true could only have been ascertained by examining the leg, that on that day there was no “evidence of rotational deformity.” In any event, viewing this and the other evidence presented in the light most favorable for the non-movant plaintiff, as our law requires, Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E. 2d 289 (1974), it is quite clear that no part of plaintiffs claim is barred as a matter of law and that when defendant last treated plaintiffs injured leg, what its condition then was, and whether it could have been corrected are issues of fact for a jury to determine. Since no part of plaintiffs action is barred by the statute of limitations, it necessarily follows that defendant’s cross appeal from the court’s failure to dismiss plaintiffs entire claim on that ground has no merit, and we overrule it.
In cross appealing defendant also brought forward an assignment of error contending that the court erred in considering the
As to plaintiffs appeal —reversed.
As to defendant’s cross appeal —affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.