King by and Through Small v. Albemarle Hospital Authority ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 382PA16
Filed 2 March 2018
DESIREE KING, by and through her Guardian ad Litem, G. ELVIN SMALL, III,
and AMBER M. CLARK, Individually
v.
ALBEMARLE HOSPITAL AUTHORITY d/b/a ALBEMARLE HEALTH/
ALBEMARLE HOSPITAL, SENTARA ALBEMARLE REGIONAL MEDICAL
CENTER, LLC d/b/a SENTARA ALBEMARLE MEDICAL CENTER,
NORTHEASTERN OB/GYN, LTD., BARBARA ANN CARTER, M.D., and
ANGELA MCWALTER, CNM
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 791 S.E.2d 662(2016), reversing an order entered on 27 July 2015 by Judge Cy A. Grant in Superior
Court, Pasquotank County, and remanding the case for further proceedings. Heard
in the Supreme Court on 8 November 2017.
Hammer Law, PC, by Amberley G. Hammer; and Ashcraft & Gerel, LLC, by
Wayne M. Mansulla, pro hac vice, for plaintiff-appellee King.
Harris, Creech, Ward and Blackerby, P.A., by Jay C. Salsman and Charles E.
Simpson, Jr., for defendant-appellants Albemarle Hospital Authority and
Sentara Albemarle Regional Medical Center, LLC.
Smith Anderson Blount Dorsett Mitchell & Jernigan LLP, by Samuel G.
Thompson and Robert E. Desmond, for defendant-appellants Northeastern
OB/GYN, Ltd., Barbara Ann Carter, M.D., and Angela McWalter, CNM.
Tin, Fulton, Walker & Owen, by Adam Stein; and Whitley Law Firm, by Ann
C. Ochsner, for North Carolina Advocates for Justice, amicus curiae.
NEWBY, Justice.
KING V. ALBEMARLE HOSP. AUTH.
Opinion of the Court
In this case we decide whether the appointment of a guardian ad litem on
behalf of a minor removes the disability of minority and starts the running of the
statute of limitations. As a minor’s legal representative with the authority and
directive to act, a guardian ad litem advocates for the legal rights of the minor in the
minor’s stead. The trial court’s appointment of a guardian ad litem on behalf of a
minor therefore removes that minor’s disability of minority and starts the running of
the statute of limitations. The statute of limitations continues to run even if the
guardian ad litem files and then dismisses a legal action. Because a court-appointed
guardian ad litem has the duty to pursue the minor’s claim within the statute of
limitations, a failure to do so time bars the claim. Accordingly, we reverse the
decision of the Court of Appeals.
Plaintiff was born on 4 February 2005. Obstetrician Barbara Ann Carter, M.D.
(Carter) and nurse midwife Angela McWalter, CNM (McWalter) managed the birth.
Soon after, medical staff discovered plaintiff had sustained a brain injury during
delivery. Almost three years later, on 10 January 2008, upon motion the trial court
appointed a guardian ad litem (GAL), G. Elvin Small, III, for plaintiff for the purpose
of bringing a civil action on her behalf. The same day, plaintiff, by and through her
GAL, filed an action against Carter and Albemarle Hospital Authority (Hospital
Authority) alleging plaintiff’s brain injury resulted from medical negligence. For
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KING V. ALBEMARLE HOSP. AUTH.
Opinion of the Court
undisclosed reasons, on 31 October 2008, the GAL voluntarily dismissed the action
under Rule of Civil Procedure 41(a)(1).
Over six years later, on 30 January 2015, the trial court again granted a motion
to appoint the same GAL to represent plaintiff “for the purpose of commencing a civil
action on her behalf.” The same day, plaintiff, by and through the GAL, filed the
present action, again alleging medical negligence but, in addition to the Hospital
Authority and Carter, naming other defendants, including McWalter and the
Hospital Authority’s successor corporation, Sentara Albemarle Regional Medical
Center, LLC. The trial court dismissed plaintiff’s claims as time barred on 27 July
2015, applying the three-year statute of limitations for medical malpractice claims.
Plaintiff appealed to the Court of Appeals, arguing that the plain language of
N.C.G.S. § 1-17(b) tolled the statute of limitations period until 4 February 2024 when
plaintiff reaches the age of nineteen. See N.C.G.S. § 1-17(b) (2009) (tolling certain
limitations periods if a claim accrues when a plaintiff is under a disability). The
Court of Appeals agreed and determined that, despite having had a court-appointed
GAL, plaintiff’s minority status constituted a disability that triggered the tolling
provision of subsection 1-17(b). King v. Albemarle Hosp. Auth., ___ N.C. App. ___,
791 S.E.2d 662, 2016 WL 4608188 (2016) (unpublished). Under the Court of Appeals’
interpretation of subsection 1-17(b), the appointment of the GAL did not remove
plaintiff’s disability of minority, allowing plaintiff the same nineteen-year statute of
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KING V. ALBEMARLE HOSP. AUTH.
Opinion of the Court
limitations as a plaintiff for whom the trial court had not appointed a GAL. King,
2016 WL 4608188, at *3.1 We allowed defendants’ petition for discretionary review.
The question presented here is whether plaintiff filed the current action within
the statute of limitations. Subsection 1-15(c) establishes the standard three-year
statute of limitations for medical malpractice actions. N.C.G.S. § 1-15(c) (2017). Once
a defendant properly raises a statute of limitations defense, the plaintiff must show
that she initiated the action within the applicable time period. Horton v. Carolina
Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996) (citation omitted). “We
have long recognized that a party must initiate an action within a certain statutorily
prescribed period after discovering its injury to avoid dismissal of a claim.”
Christenbury Eye Ctr., P.A. v. Medflow, Inc., ___ N.C. ___, ___, 802 S.E.2d 888, 891
(2017).
“The purpose of a statute of limitations is to afford security against stale
demands, not to deprive anyone of his just rights by lapse of time.” Id. at ___, 802
S.E.2d at 891 (quoting Shearin v. Lloyd, 246 N.C. 363, 371, 98 S.E.2d 508, 514 (1957),
superseded by statute, N.C.G.S. § 1-15(b) (1971), on other grounds as recognized in
Black v. Littlejohn, 312 N.C. 626, 630-31, 325 S.E.2d 469, 473 (1985)). “This security
1 The Court of Appeals also held that, even though here plaintiff refiled the suit six
years after the first voluntary dismissal under Rule 41 of the Rules of Civil Procedure, well
outside of the one-year refiling deadline specified by the Rule, only a second voluntary
dismissal under Rule 41 by plaintiff would result in an adjudication on the merits. Id. (citing
N.C.G.S. § 1A-1, Rule 41(a) (2015)).
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KING V. ALBEMARLE HOSP. AUTH.
Opinion of the Court
must be jealously guarded, for ‘[w]ith the passage of time, memories fade or fail
altogether, witnesses die or move away, [and] evidence is lost or destroyed.’ ” Id. at
___, 802 S.E.2d at 891 (Alterations in original) (quoting Estrada v. Burnham, 316
N.C. 318, 327, 341 S.E.2d 538, 544 (1986), superseded by statute, N.C.G.S. § 1A-1,
Rule 11(a) (Cum. Supp. 1988), on other grounds as stated in Turner v. Duke Univ.,
325 N.C. 152, 163-64, 381 S.E.2d 706, 712-13 (1989)). “[I]t is for these reasons, and
others, that statutes of limitations are inflexible and unyielding and operate without
regard to the merits of a cause of action.” Id. at ___, 802 S.E.2d at 891-92 (quoting
Estrada, 316 N.C. at 327, 341 S.E.2d at 544).
Balanced against the disadvantage of stale claims as protected by the statute
of limitations is the problem that individuals under certain disabilities are unable to
appreciate the nature of potential legal claims and take the appropriate action.
Section 1-17 tolls certain statutes of limitation periods while a plaintiff is under a
legal disability, such as minority, that impairs her ability to bring a claim in a timely
fashion. The version of section 1-17 relevant here provides in part:
(a) A person entitled to commence an action who is
under a disability at the time the cause of action accrued
may bring his or her action within the time limited in this
Subchapter, after the disability is removed . . . within three
years next after the removal of the disability, and at no
time thereafter.
....
(b) Notwithstanding the provisions of subsection (a)
of this section, an action on behalf of a minor for
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Opinion of the Court
malpractice arising out of the performance of or failure to
perform professional services shall be commenced within
the limitations of time specified in G.S. 1-15(c), except that
if those time limitations expire before the minor attains the
full age of 19 years, the action may be brought before the
minor attains the full age of 19 years.
N.C.G.S. § 1-17(a), (b) (2009).
Subsection 1-17(a) contains many general provisions which address the
applicability of this tolling provision, including the definition of “disability.” See id.
§ 1-17(a)(1)-(3). Assuming a person is “under a disability at the time the cause of
action accrue[s],” the statute requires the person to bring the cause of action within
the time specified “after the disability is removed.” Id. § 1-17(a). The disability of
minority can be removed by the appointment of a GAL or by the passage of time,
whichever occurs first. Thus, under subsection 1-17(a), a minor plaintiff who
continues under the disability of minority, upon reaching the age of eighteen, has a
three-year statute of limitations to bring a claim based on a general tort. See id. § 1-
17(a)(1).
Whereas the tolling provision of subsection (a) focuses on general torts, the
tolling provision of subsection (b) specifically addresses professional negligence
claims, including medical malpractice. Id. § 1-17(b). As with general torts, when a
medical malpractice claim accrues while a plaintiff is a minor, N.C.G.S. § 1-17(b) tolls
the standard three-year statute of limitations provided by N.C.G.S. § 1-15(c). Id.
Section 1-17(b), however, reduces the standard three-year statute of limitations, after
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Opinion of the Court
a plaintiff reaches the age of majority, to one year by requiring a filing before the age
of nineteen.2 Id. Thus, a minor plaintiff who continues under that status until age
eighteen has one year to file her claim. Id. The language of “Notwithstanding the
provisions of subsection (a)” refers to this reduced time period to bring an action. Id.
Like subsection (a), subsection (b) still allows the minor to reach adulthood before
requiring her to pursue her medical malpractice claim, assuming her disability is
otherwise uninterrupted. Compare id. § 1-17(a), with id. § 1-17(b). Removal of the
disability either by reaching the age of majority or by appointment of a GAL triggers
the running of the statute of limitations.
2 Effective 1 October 2011, the General Assembly amended this section to reduce the
minor’s age from nineteen to ten years, see Act of June 13, 2011, ch. 400, sec. 9, 2011 N.C.
Sess. Laws 1712, 1716 (captioned “An Act to Reform the Laws Relating to Money Judgment
Appeal Bonds, Bifurcation of Trials in Civil Cases, and Medical Liability”) (codified as
amended at N.C.G.S. § 1-17 (2017)), thus further narrowing the time period for a minor to
pursue a medical malpractice claim. Currently, section 1-17 of the General Statutes includes
the following pertinent language in subsection (c):
Notwithstanding the provisions of subsection (a) and (b) of this
section, an action on behalf of a minor for injuries alleged to have
resulted from malpractice arising out of a health care provider’s
performance of or failure to perform professional services shall
be commenced within the limitations of time specified in G.S. 1-
15(c), except as follows:
(1) If the time limitations specified in G.S. 1-15(c) expire
before the minor attains the full age of 10 years, the
action may be brought any time before the minor
attains the full age of 10 years.
N.C.G.S. § 1-17(c)(1) (2017).
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KING V. ALBEMARLE HOSP. AUTH.
Opinion of the Court
This statutory interpretation comports with our long-standing jurisprudence:
When the trial court appoints a GAL for the purpose of pursuing a minor plaintiff’s
legal claim, it removes the minor’s disability and begins the running of the statute of
limitations.
In North Carolina the rule is that the statute of
limitations begins to run against an infant . . . who is
represented by a [court-appointed] guardian at the time
the cause of action accrues. If he has no guardian at that
time, then the statute begins to run upon the appointment
of a guardian or upon the removal of his disability as
provided by G.S. 1-17, whichever shall occur first.
First-Citizens Bank & Tr. v. Willis, 257 N.C. 59, 62, 125 S.E.2d 359, 361 (1962)
(citation omitted); see also Teele v. Kerr, 261 N.C. 148, 150, 134 S.E.2d 126, 128 (1964)
(The appointment of a guardian who acts as a legal representative starts “the statute
of limitations . . . as to any action which the guardian could or should bring, at the
time the cause of action accrues.” (citing First-Citizens Bank, 257 N.C. 59, 125 S.E.2d
359)); Johnson v. Pilot Life Ins. Co., 217 N.C. 139, 144, 7 S.E.2d 475, 478 (1940)
(“Exposure to a suit by the guardian—one which was within the scope of both his
authority and duty—for a sufficient length of time, would constitute a bar to the
action of the ward.”); Tate v. Mott, 96 N.C. 19, 24, 2 S.E. 176, 178 (1887) (“When an
infant thus brings his action, the Court has jurisdiction of him, just as if he were an
adult plaintiff, and orders, judgments and decrees entered in the course of it are
binding and conclusive upon him, while they remain unreversed. And generally, any
infant may thus bring his action, if he has good cause . . . .”); White v. Albertson, 14
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Opinion of the Court
N.C. 241, 242-43 (1831) (differentiating between a valid judgment against a
represented minor and an invalid judgment by default against minors not
represented). As a result, “ordinarily the failure of the guardian to sue in apt time is
the failure of the ward, entailing the same legal consequence with respect to the bar
of the statute.” Johnson, 217 N.C. at 144, 7 S.E.2d at 477-78.
Moreover, once the statute of limitations begins to run, it is not thereafter
tolled. Rowland v. Beauchamp, 253 N.C. 231, 234-35, 116 S.E.2d 720, 723 (1960)
(appointing a new GAL did not restart the statute of limitations, which began to run
at the appointment of the first GAL); id. at 235, 116 S.E.2d at 723 (“It is well settled
that, when the statute of limitations begins to run, nothing stops it.” (quoting
Frederick v. Williams, 103 N.C. 189, 190-91, 9 S.E. 298, 298 (1889))).3 As such, the
court’s appointment of a GAL requires the GAL, as the minor’s legal representative,
to comply with the standard three-year statute of limitations for medical malpractice
claims. See N.C.G.S. § 1-17(a), (b) (requiring the claim be brought within the time
specified by N.C.G.S. § 1-15(c) after the disability is removed). This interpretation of
3 See also Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 283 (4th Cir. 1979) (“Unlike
most jurisdictions, North Carolina does not suspend the running of the statute of limitations
on an infant’s cause of action during the period of infancy when the infant has a guardian
charged with the duty of bringing the action on his behalf.”); id. at 285 (“The rationale of the
Rowland doctrine is that since an infant represented by a guardian has the capacity, despite
his infancy, to bring suit through his guardian, there is no need to suspend the running of
the statute of limitations.”); Simmons ex rel. Simmons v. Justice, 87 F. Supp. 2d 524, 530
(W.D.N.C. 2000) (Under state law, “even a parent bringing suit on behalf of their own child
will not start the running of the statute of limitations against the infant unless the parent is
that child’s court appointed guardian.”).
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KING V. ALBEMARLE HOSP. AUTH.
Opinion of the Court
section 1-17 mirrors the codified duty of a GAL to advocate on behalf of the minor as
if the minor is under no disability. Id. § 1A-1, Rule 17(e) (2017) (“Any guardian ad
litem appointed for any party . . . shall file and serve such pleadings as may be
required within the times specified by these rules . . . . [T]he court may proceed to
final judgment . . . against any party so represented as effectually and in the same
manner as if said party had been under no legal disability . . . .” (emphasis added)).
Here, on 10 January 2008, the trial court appointed the GAL and specifically
tasked him with bringing an action on behalf of the minor plaintiff. Such an
appointment provided plaintiff a legal representative and removed plaintiff’s
disability of minority. Under section 1-17, the removal of the disability eliminates
the tolling and starts the running of the applicable three-year statute of limitations
for medical malpractice actions. The GAL’s subsequent dismissal of the action did
not reinstate the tolling. Plaintiff filed this current action after the statute of
limitations expired. Accordingly, we reverse the decision of the Court of Appeals and
instruct that court to reinstate the trial court’s order dismissing plaintiff’s claims as
time barred.
REVERSED.
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KING V. ALBEMARLE HOSP. AUTH.
Beasley, J., dissenting
Justice BEASLEY dissenting.
The majority engages in judicial interpretation of a clear and unambiguous
statute, N.C.G.S. § 1-17(b), to reach a result that is contrary to its plain language. I
would hold that the plain language of N.C.G.S. § 1-17(b) dictates that plaintiff’s claim
is timely, and the unanimous decision of the Court of Appeals below should be upheld.
Accordingly, I respectfully dissent.
While the general limitations period applicable to professional negligence
claims is three years, N.C.G.S. § 1-15(c) (2017), this case is controlled by the more
specific provision addressing the time period within which professional negligence
claims “may be brought” “on behalf of a minor,” id. § 1-17(b) (2017). Subsection 1-
17(b) provides, in relevant part:
Notwithstanding the provisions of subsection (a) of this
section, . . . an action on behalf of a minor for malpractice
arising out of the performance of or failure to perform
professional services shall be commenced within the
limitations of time specified in [N.C.]G.S. [§] 1-15(c), except
that if those time limitations expire before the minor attains
the full age of 19 years, the action may be brought before the
minor attains the full age of 19 years.
Id. § 1-17(b) (emphases added).1 The statute’s language could not be more clear. The
provision allows a minor plaintiff injured by the professional negligence of another to
1 All parties to this appeal, the Court of Appeals, and the majority agree that the
General Assembly’s addition of N.C.G.S. § 1-17(c) became effective 1 October 2011 and does
not apply to plaintiff’s claim because the actions upon which plaintiff’s claim is based
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KING V. ALBEMARLE HOSP. AUTH.
Beasley, J., dissenting
bring a claim at any time “before the minor attains the full age of 19 years.” Id. There
is no proviso in subsection 1-17(b) allowing for a different result in the event that the
minor is appointed a guardian ad litem (GAL) or if the minor files suit but elects to
take a voluntary dismissal without prejudice under N.C.G.S. § 1A-1, Rule 41(a)(1).
Despite the clear, unambiguous language used by the legislature, the majority
concludes—without citation to authority—that “[r]emoval of the disability [of
minority] . . . by appointment of a GAL triggers the running of the statute of
limitations,” and that subsections 1-17(a) and (b) “requir[e] [that the minor’s claim]
be brought within the time specified by N.C.G.S. § 1-15(c) after the disability is
removed.” In doing so, the majority grafts additional terms onto subsection 1-17(b)
that stem from provisions of general applicability: N.C.G.S. § 1-15(c) and N.C.G.S. §
1-17(a). See First-Citizens Bank & Tr. v. Willis, 257 N.C. 59, 62, 125 S.E.2d 359, 361
(1962) (interpreting the general disability tolling provision of N.C.G.S. § 1-17 as it
existed at the time); see also Teele v. Kerr, 261 N.C. 148, 150, 134 S.E.2d 126, 128
(1964) (same); Johnson v. Pilot Life Ins. Co., 217 N.C. 139, 143-44, 7 S.E.2d 475, 477-
78 (1940) (same). The majority’s reasoning is sound when applied to a minor’s cause
of action that does not fall within the scope of N.C.G.S. § 1-17(b). See Rowland v.
occurred prior to that date. See Act of June 13, 2011, ch. 400, sec. 9, 2011 N.C. Sess. Laws
1712, 1716 (captioned “An Act to Reform the Laws Relating to Money Judgment Appeal
Bonds, Bifurcation of Trials in Civil Cases, and Medical Liability”) (codified as amended at
N.C.G.S. § 1-17 (2017)). However, the majority’s interpretation of N.C.G.S. § 1-17(b) would
apply with equal force to the amended statute to which the majority refers, N.C.G.S. § 1-
17(c)(1) (2017).
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KING V. ALBEMARLE HOSP. AUTH.
Beasley, J., dissenting
Beauchamp, 253 N.C. 231, 234-35, 116 S.E.2d 720, 722-23 (1960). But the plain
language of subsection 1-17(b) is not susceptible to this interpretation.
Subsection 1-17(b) begins by directing the reader to disregard the provisions
of general applicability from subsection 1-17(a) which would require a minor plaintiff
to bring her cause of action within three years “after the removal of the disability.”
See N.C.G.S. § 1-17(b) (“Notwithstanding the provisions of subsection (a) of this
section. . . .”); see also Notwithstanding, Black’s Law Dictionary (10th ed. 2014)
(defining “[n]otwithstanding” as “Despite; in spite of”). Additionally, N.C.G.S. § 1-15,
describing the generally applicable three-year limitations period for professional
negligence actions, states that “[c]ivil actions can only be commenced within the
periods prescribed in this Chapter, after the cause of action has accrued, except where
in special cases a different limitation is prescribed by statute.” N.C.G.S. § 1-15(a)
(2017) (emphasis added). Subsection 1-17(b) prescribes a “different limitation” for
the “special cases” of professional negligence actions brought on behalf of minors.
“Where the language of a [statute] is clear and unambiguous, there is no room for
judicial construction and the courts must give [the statute] its plain and definite
meaning, and are without power to interpolate, or superimpose, provisions and
limitations not contained therein.” State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754,
756 (1974) (quoting 7 Strong’s North Carolina Index 2d: Statutes § 5, at 77 (1968)
(footnotes omitted)); see also Ernest Bruncken, Interpretation of the Written Law, 25
Yale L.J. 129, 130 (1915) (“[T]he actual intention of the legislat[ure] is quite
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KING V. ALBEMARLE HOSP. AUTH.
Beasley, J., dissenting
immaterial [to a plain reading construction]; what matters is the way in which
[legislators] ha[ve] actually expressed [their] intention. We must look to the wording
of the statute, and to that alone.”). Further,
[w]here there is one statute dealing with a subject in
general and comprehensive terms, and another dealing
with a part of the same subject in a more minute and
definite way, the two should be read together and
harmonized, if possible, with a view to giving effect to a
consistent legislative policy; but, to the extent of any
necessary repugnancy between them, the special statute, or
the one dealing with the common subject matter in a minute
way, will prevail over the general statute, according to the
authorities on the question, unless it appears that the
legislature intended to make the general act controlling;
and this is true a fortiori when the special act is later in
point of time, although the rule is applicable without
regard to the respective dates of passage.
Nat’l Food Stores v. N. C. Bd. of Alcoholic Control, 268 N.C. 624, 628-29, 151 S.E.2d
582, 586 (1966) (emphasis added) (quoting 82 C.J.S. Statutes § 369, at 839-43 (1953)
(second italics added) (footnotes omitted)). Here, the later enacted, more specific
provision of subsection 1-17(b) controls over the general provisions of subsections 1-
17(a) and 1-15(c).
According to the plain language of subsection 1-17(b), “the action may be
brought before the minor attains the full age of 19 years.” N.C.G.S. § 1-17(b). This
action was brought before plaintiff’s nineteenth birthday. Thus, the decision of the
Court of Appeals is correct and should be affirmed.
Justices HUDSON and MORGAN join in this dissenting opinion.
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