Hohn v. Slate , 48 N.C. App. 624 ( 1980 )

269 S.E.2d 307 (1980) 48 N.C. App. 624

David Milton HOHN
v.
Dr. M. L. SLATE, Dr. Robert C. Johnson and High Point Memorial Hospital, Inc.

No. 8019SC27.

Court of Appeals of North Carolina.

September 2, 1980.

Miller & Miller by G. E. Miller and Michael C. Miller, Asheboro, for plaintiff-appellant.

Nichols, Caffrey, Hill, Evans & Murrelle, by G. Marlin Evans and Kenneth K. Kyre, Jr., Greensboro, for defendant-appellee Dr. Robert C. Johnson.

Perry C. Henson, Greensboro, for defendant-appellee Dr. M. L. Slate.

WEBB, Judge.

This appeal presents the question of whether the plaintiff's claim is barred by the statute of limitations. G.S. 1-17(b) provides in part:

[A]n 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 G.S. 1-15(c): Provided, that if said time limitations expire before such minor attains the full age of 19 years, the action may be brought before said minor attains the full age of 19 years.

The claim of the plaintiff, having accrued in 1962, is barred by the three year statute of limitations G.S. 1-15(c) and G.S. 1-17(b) requiring the action to be brought within one year after the disability of minority is removed unless, as the plaintiff contends, G.S. 1-17(b) does not apply. Plaintiff urges that since the wording of G.S. 1-17(b) is that "action[s] on behalf" of minors must be brought within one year of attaining majority and the plaintiff brought this action on his own behalf, he is entitled to bring it within three years of attaining 18 years of age. This is the time limit for other tort claims for those reaching majority. We believe the construction for which the plaintiff contends is contrary to the intent of the legislature. We hold that G.S. 1-17(b) applies to this action brought by the plaintiff.

The plaintiff also contends that the statute violates the equal protection clause of Article 1, Section 19 of the Constitution of North Carolina and the Fourteenth Amendment to the Constitution of the United States. The General Assembly has declared thata person who has malpractice claim does not have as long a period after becoming 18 years of age to bring an action as a person who has some other type of tort claim. The plaintiff contends that this creates an arbitrary class and there is no rational basis for this distinction.

The plaintiff challenges this law under the equal protection clauses of both the state and federal constitution. We believe the equal protection test is the same under both constitutions. Persons with malpractice claims are not a suspect class and a classification so as to shorten the statute of limitations as to them does not affect a fundamental interest. This classification is not inherently suspect. See Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968). The plaintiff concedes that the General Assembly has the power to adopt different statutes of limitations for different classes of claims. He contends it is arbitrary and capricious to classify those reaching majority with malpractice claims differently than those reaching majority with other tort claims. We believe there is a substantial distinction between persons who have malpractice claims and those with other types of tort claims. Based on this distinction, we presume the General Assembly at the time it enacted understood and correctly appreciated the needs of the people of this state when the legislation was enacted. To strike this statute down, we would have to substitute our judgment for that of the General Assembly. The plaintiff contends that by shortening the period in which persons with malpractice claims may bring actions, the state has penalized those persons for the benefit of the insurance companies. If this is true, we feel it is a matter for the General Assembly. We hold G.S. 1-17(b) does not violate the equal protection clause of the constitution of this state or the United States. See Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) and In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).

Affirmed.

HARRY C. MARTIN and WELLS, JJ., concur.