Every lawyer remembers learning the nebulous concept of “disabilities” in law school. The interplay between a “disability” and the statute of limitations or the statute of repose is much more complex than appears at first glance. Last week, the North Carolina Court of Appeals threw another wrinkle into the already confusing principle.
Since the 1960 North Carolina Supreme Court case of Rowland v. Beauchamp, 253 N.C. 231, 116 S.E.2 720 (1960), attorneys and courts have abided by the principle that for actions on behalf of a minor plaintiff brought during the time of minority age (the disability of “infancy”), the statute of limitations begins to run upon the appointment of a guardian charged with the duty of bringing an action. As such, if a guardian is appointed when a child is a year old, the action would have to be commenced well before the “disability” of minority age has been removed. The concept has historically been applied to all claims of personal injury, including those premised on claims of professional malpractice.
On Tuesday, September 6, 2016, the Court of Appeals handed down the opinion of King v. Albemarle Hospital Authority, which has changed the rules applicable to professional malpractice claims. King involved claims against various healthcare providers for alleged negligence in the delivery of the minor plaintiff on February 4, 2005, which resulted in a permanent brain injury. A guardian ad litem was appointed on January 10, 2008, for the purposes of pursuing the malpractice claim, and the lawsuit was filed shortly thereafter. Then, on October 31, 2008, the plaintiffs voluntarily dismissed the case.
On January 30, 2015, more than six years after the case had been dismissed, the plaintiffs refiled the lawsuit, also re-appointing the same guardian ad litem. The defendants promptly moved to dismiss the case on the basis that the statute of limitations had run when plaintiffs did not refile the action within one year of voluntarily dismissing the action and because the “disability” had been removed when the guardian ad litem was appointed in 2008. The trial court agreed and dismissed the action.
The plaintiffs appeal, and on review, the Court of Appeals reversed, reasoning that professional malpractice actions are treated differently from other personal injury actions. The King Court pointed to the separate language of N.C. Gen. Stat. § 1-17, which sets out the tolling provisions for claimants under a “disability.” The statute reads:
- A person entitled to commence an action who is under a disability at the time the cause of action accrued may bring [the] action within the time limited in this Subchapter after the disability is removed . . . when the person must commence his or her action . . . within three years next after the removal of the disability, and at no time thereafter.
- Notwithstanding the provision of subsection (a) . . . , 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.
Because the second section of the statute expressly applies to malpractice actions, the King Court reasoned that the exception set out in Rowland did not apply, since that case involved a general personal injury action. In Section (a), the language applicable to general personal injury actions provides that the statute of limitations expires “within three years next after the removal of the disability.” Section (b), however, states that the statute of limitations expires “before the minor attains the full age of 19 years.” As such, section (b) does not contemplate a scenario where the “disability” is removed for any reason, such as by the appointment of a guardian ad litem.
Under the new statutory scheme set out in N.C. Gen. Stat. § 1-17(c), health care providers no longer have to worry about a possible 19-year statute of limitations, but concept of the King opinion still applies. The new statutory scheme applied to the facts of King would allow the minor plaintiff to refile the action before his 10th birthday (February 4, 2015), which would have resulted in the same outcome.
In sum, health care providers who care for young patients and attorneys who represent those health care providers can no longer breathe a sigh of relief when the one-year mark passes after a minor plaintiff has voluntarily dismissed his or her lawsuit.