Byrd v. Hancock

PHILLIPS, Judge. 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 [568] affidavit of Dr. Jacobs. This assignment is broadside not in compliance with the provisions of Rule 10(c), N.C. Rules of Appellate Procedure, because it does not state the legal basis for the error alleged. Though the assignment raises no question for appellate review, the argument made to support it is so singularly fallacious we chose to discuss it. The argument, vigorously and extensively made, is that the affidavit was improperly considered because no evidence was presented to show that Dr. Jacobs is familiar with the standards of medical practice in Harnett County; an argument clearly irrelevant to the issues raised at the hearing on defendant’s motion for summary judgment. At that hearing the only issues defendant addressed by his evidence were the statute of limitations, the date when defendant last did anything or failed to do anything in regard to plaintiffs injured leg, and whether at that time the deformity that developed was correctable. Since defendant’s forecast of proof did not call into question either the propriety of defendant’s treatment of plaintiff or the medical standards of Harnett County, plaintiff was not obliged to make any showing whatever with respect to these matters. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979). Furthermore, Dr. Jacobs’ affidavit did not concern the standards of medical practice in Harnett County. It concerned only the condition of plaintiffs leg as revealed by the X-rays and medical records and the efficacy of an universally known procedure in correcting tibial and fibular fractures that heal with excessive angulation. The condition of a fractured bone, as shown by X-rays and medical records, and its effective treatment is not a matter that is within the idiosyncratic province of local practitioners; it is a medical matter within the competence of any physician that is educated and experienced in that field, as Dr. Jacobs’ affidavit indicates that he is. Certainly, it is not the law, as defendant seemingly argues, that knowledge of local medical practices is a prerequisite to a medically educated, experienced physician expressing an opinion about a medical record that he has studied or the efficacy of a medical procedure that he is familiar with. As to plaintiffs appeal —reversed. As to defendant’s cross appeal —affirmed. Judges COZORT and Greene concur.