Background Facts
Plaintiff Freedom Morris—then thirteen years old—sought emergency treatment on February 23, 2015 at defendant Vidant Medical Center for abdominal pain caused by acute appendicitis. Defendant David Rodeberg, M.D. operated on plaintiff the next day to remove his appendix. Despite complaining of intense pain following surgery, plaintiff was discharged on February 25, 2015. He returned to defendant hospital one day later with a fever and sharp abdominal pain. A second surgery performed by a different doctor revealed that defendant Rodeberg had not removed the entire appendix. The remaining portion had ruptured, spreading infection inside plaintiff’s body. Plaintiff was discharged from defendant hospital a second time on March 4, 2015. Severe abdominal pain and a high fever prompted a return visit on March 17, 2015. Plaintiff underwent a third surgery, this time to drain a pelvic abscess. He was discharged yet again on March 20, 2015.
More than five years later, on September 14, 2020, plaintiff filed a North Carolina medical malpractice lawsuit against defendants in the Superior Court, Pitt County, alleging medical malpractice and medical negligence. Defendants responded with motions asking the trial court to dismiss the complaint. In their motions, defendants argued that plaintiff filed the complaint outside the statute of limitations for the medical malpractice claims of persons who are over ten years old but under eighteen years old when their claims accrue. Specifically, defendants asserted that, pursuant to N.C.G.S. § 1-15(c) and N.C.G.S. § 1-17(c), plaintiff had three years from February 24, 2015—the date on which defendant Rodeberg operated on plaintiff—to file suit against defendants.
North Carolina Medical Malpractice Statute Of Limitations
In general, the three-year statute of limitations imposed by subsection 1-15(c) begins running “at the time of the occurrence of the last act of the defendant giving rise to the cause of action.” N.C.G.S. § 1-15(c) (2021). It can be extended to as many as four years if the plaintiff’s injuries are “not readily apparent to the [plaintiff] at the time of [their] origin.”
Plaintiff did not file his medical malpractice claims against defendants within three years of his first surgery, and this case does not involve latent injuries. Plaintiff’s claims are time-barred if subsection 1-15(c) controls.
However, for most kinds of civil claims, subsection 1-17(a) pauses the statute of limitations if the individual with the claim “is under a disability at the time the cause of action accrued.” N.C.G.S. § 1-17(a) (2021). In such cases, the limitations period does not begin to run until “the disability is removed.”
Subsection 1-17(a) defines “a person [who] is under a disability” to include anyone who “is within the age of 18 years.” N.C.G.S. § 1-17(a), (a)(1). The disability of minority can be removed by the appointment of a guardian ad litem or by the passage of time, whichever occurs first. Accordingly, when a statute of limitations has been tolled under subsection 1-17(a) based on a plaintiff’s age, it starts running as soon as the court appoints a guardian ad litem to pursue the plaintiff’s claims or the plaintiff turns eighteen years old.
Whereas the tolling provision of subsection 1-17 focuses on general torts, the tolling provision of subsection 1-17 specifically addresses professional negligence claims: “Notwithstanding the provisions of subsection (a) of this
section, and except as otherwise provided in subsection (c) 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 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(b) (2021).
The Supreme Court of North Carolina stated in its opinion filed on December 15, 2023: “The first sentence in subsection 1-17(c) unambiguously declares that its tolling provision—not those in subsections 1-17(a) and 1-17(b)—applies to the medical malpractice claims of minors. It further states that such claims must be filed “within the limitations of time specified in G.S. 1-15(c)” unless they fit into one of the exceptions in subdivisions 1-17(c)(1) through (c)(3). In other words, subject to the exceptions in subdivisions 1-17(c)(1) through (c)(3), subsection 1-17(c) eliminates tolling of the medical malpractice claims of minors.”
“The parties agree that this case does not fall within any of the exceptions in subdivisions 1-17(c)(1) through (c)(3). We concur. Plaintiff was not under the age of ten when “the time limitations specified in [subsection] 1-15(c) expire[d],” nor does the record anywhere indicate that he has ever been adjudicated “an abused or neglected juvenile as defined in G.S. 7B-101” or placed “in legal custody of the State, a county, or an approved child placing agency.” N.C.G.S. § 1-17(c)(1)–(3). Consequently, subsection 1-17(c) required plaintiff to commence his lawsuit within the time frame set out in subsection 1-15(c). Because plaintiff failed to do so, his claims are time-barred.”
“The legislature may have reasonably decided that young children should have more time to bring their claims because older children often are better able to understand and describe their injuries and to grasp the import of a legal proceeding. Whatever the reason, whether the law ought to distinguish between minor plaintiffs in this way is a separate issue, and one on which the courts must defer to the legislature’s judgment so long as the legislature acts within constitutional bounds. Plaintiff had three years from the accrual of his causes of action in February 2015 to sue defendants for medical malpractice. Because he waited until 14 September 2020 to file his complaint, the Court of Appeals correctly held that his lawsuit is barred by the statute of limitations.”
Morris v. Rodeberg, No. 296A22.
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