Home Medical Malpractice Statute Of Limitations For Minors In Medical Malpractice Actions – Professional Negligence

Statute Of Limitations For Minors In Medical Malpractice Actions – Professional Negligence

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Back in law school, we all learned about the statute of
limitation: a plaintiff has a limited amount of time in which to
file suit. There are, however, exceptions to this time limitation,
especially when the plaintiff is under a
“disability.”

If the plaintiff is unable to understand the need to file suit,
the statute of limitations may be extended, or “tolled,”
until a time the plaintiff may be expected to discern a claim
should be filed. (Note: as with most things in law, there are
exceptions to the exceptions, but we will do our best not to
digress from the pertinent issue).

In most states, including North Carolina, the age of minority
(under the age of 18) is considered a “disability.”
Historically, in the context of medical malpractice cases, a minor
plaintiff had at least until the age of 19 (one year following the
completion of the age of minority) to file a lawsuit.

For example, an injured three-year-old was permitted to file a
lawsuit against a physician 15 years after the care was rendered,
and very little could prevent it. Obviously, in such extreme cases,
memories are completely gone, providers may have retired or died,
and standards of practice have drastically changed.

Medical Malpractice Tort Reform in North Carolina

We saw sweeping statutory reforms in medical malpractice
litigation on October 1, 2011. One of the significant changes to
occur as part of Medical Malpractice Tort Reform was to the statute
of limitations exceptions set out in N.C. Gen. Stat. § 1-17,
“Disabilities.” Section 1-17 is the North Carolina
statute that explains the “disabilities” allowing for
tolling (extension of) of the statute of limitations.

Section 1-17(b), before 2011, had been applicable to minor
plaintiffs’ claims of professional negligence, including
medical negligence. For many years, claims were allowed to be
brought until the age of 19. In 2011, however, a completely new
section, N.C. Gen. Stat. § 1-17(c) was added, which narrowed
the focus from “professional services” to “a
healthcare provider’s performance of or failure to perform
professional services.”

Accordingly, while the prior provision applied to accountants,
lawyers, engineers, and other “professionals,” the new
section carved healthcare providers out from the
“professionals” group. It gave a new framework when
dealing with the statute of limitations applicable to minor
plaintiffs in medical malpractice actions.

New Statute of Limitations Exceptions for Medical Malpractice
Actions

The new section laid out three specific exceptions to the
general statute of limitations for minor plaintiffs bringing a
medical malpractice action:

Exception #1

If the statute of limitations expires before the child turned
10, the action could be brought up until the child turned 10. This
exception is straightforward and acknowledged the issues arising
from the extreme example mentioned above. So, if the child was
three, rather than being allowed to file the claim 15 years later,
they could file it 6 years later.

This change made sense, prevented stale claims, and still gave
the child plenty of time to file suit. It was silent, however, on
situations where the minor plaintiff’s claims expired between
the ages of 10 and 19. Specifically, it states:

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:

  • If the time limitations specified in G.S. 1-15© expire
    before the minor attains the full age of 10 years, the action may
    be brough any time before the minor attains the full age of 10
    years.

Exception #2

Applied to specific situations where a court has entered a
judgment or consent order finding the minor was an abused or
neglected juvenile. In that very special circumstance, the
minor’s medical malpractice claim had to be brought within the
later of 1) three years of the judgment or consent order or 2)
before the child turned 10

So, if a court entered an order finding a nine-year-old child
was a neglected juvenile, the child has three years from the date
of the order to file a medical malpractice claim.

Exception #3

The final exception applied to children who were in legal
custody of the State, a county, or child placement agency. The new
statute gave the child until the later of 1) one year after the
child was no longer in legal custody, or 2) until the child turned
10.

Morris v. Rodenberg

It took more than a decade for the North Carolina appellate
courts to receive a case where the new framework took center stage
and required interpretation, but the North Carolina Court of
Appeals issued an important opinion interpreting the new statute on
August 16, 2022, in a case titled Morris v. Rodenberg.

The Court’s interpretation in the case may send some medical
malpractice plaintiff attorneys scrambling to get their
clients’ claims filed. As a practical note, because the issue
pertains only to minors between the ages of 7 and 15 (where the
statute of limitations would expire between the ages of 10 and 19,
which is not a common age group in medical malpractice cases), the
opinion will not have far-reaching consequences; but it is very
important, nonetheless.

The minor plaintiff in Morris was a thirteen-year-old
boy who presented to the emergency department on February 23, 2015,
with complaints of right-sided abdominal pain. He underwent a
laparoscopic appendectomy the following day, but he later developed
an infection and had to undergo two additional surgeries. He
remained in the hospital until March 20, 2015.

More than five years after the surgery, when he was now 18 years
old, the patient filed suit against the surgeon and the hospital,
alleging medical negligence in the care and treatment of the
appendicitis. The defendants filed motions to dismiss on the
grounds the plaintiff had only three years to file suit from the
date of surgery in response to the new framework laid out in N.C.
Gen. Stat. 1-17(c)(1).

The plaintiff argued the new framework applied only to
situations where the minor plaintiff was younger than 10 and,
otherwise, the general provision of N.C. Gen. Stat. 1-17(b)
applied, giving him until the age of 19 to file suit. The trial
court agreed with the plaintiff’s interpretation and denied the
defendants’ motion.

The defendants appealed and were joined in the appeal by the
North Carolina Association of Defense Attorneys (“NCADA”)
through an amicus curiae brief. The North Carolina Court
of Appeals agreed to hear the issue (there were several legal
technicalities involved with the Court of Appeals’ ability to
hear the appeal that are not covered here). The basic issue to be
decided was whether the new N.C. Gen. Stat. 1-17(c)(1) applied to
1) all medical malpractice claims or 2) only medical malpractice
claims where the statute of limitations would expire before the age
of 10.

Under the defendants’ interpretation, the only exception to
the general statute of limitations applicable to minors bringing a
medical malpractice action arises if the statute of limitations
would expire before age 10. Minors between the ages of 7 and 15
when the negligence occurred would have only three years to bring
an action when, historically, they would have been allowed more
than three years to file suit.

The plaintiffs’ argued the statute should be interpreted to
provide the same treatment to minors between the ages of 7 and 15
as those between the ages of 0 and 6, allowing them to toll the
statute of limitations for some period of time.

Under this interpretation, the new statute simply breaks the
traditional period of ages 0-19 into two groups—0-10 and
10-19.

A “Narrowed” Statute

After dissecting the organization of N.C. Gen. Stat. § 1-17
into its various parts under subsections (a), (b), and (c), the
Morris court agreed with the defendants’ (and the
NCADA’s) interpretation. Specifically, the court explained how
the newly enacted provision “narrowed” the statute’s
application. When a statute or a new provision in a statute is
enacted that carves out a more specific or narrower application of
another, more general statute or provision, the narrower, or more
specific, statute or provision prevails over the general.

Additionally, if a new section is brought into a particular
statute at a later time, and the new provision is more specific
than the older provisions, the courts consider the later addition
to demonstrate an intent of the General Assembly for the new
section to prevail over the prior, more general sections.

The North Carolina statute pertaining to
“Disabilities,” Section 1-17(a) is the overarching
general tolling provision applicable to all
“disabilities” and all claims, making it the most general
subsection. Section 1-17(b) narrowed the scope of the tolling
exception for claims when a plaintiff is under a
“disability” and applied only to “professional
malpractice actions.” Thus, subsection 1-17(b) was a narrower,
more specific application and would prevail over the general
provisions of 1-17(a).

The newly enacted N.C. Gen. Stat. 1-17(c) specifically and
expressly applied only to medical malpractice actions. It provided
that the statute of limitations in medical malpractice actions
should follow the standard statute of limitations set out in N.C.
Gen. Stat. § 1-15(c), and the statute of limitations for minor
plaintiffs should be tolled only until the age of 10.

Accordingly, N.C. Gen. Stat. 1-17(c) was narrower and more
specific than either subsection (a) or (b) in that it applied only
the medical malpractice actions, and, under the rules of statutory
construction, it prevailed.

The result under the Morris Court’s
interpretation

Considering the Morris case was a medical malpractice
case, only 1-17(c) applied, and the statute of limitations was
tolled for the minor plaintiff only until the age of 10. Because
the statute of limitations was set to expire after the child turns
10, it was not tolled based on the age of minority. The child was
13 at the time the negligence occurred, giving him three years in
which to file suit. He did not do so, and so his claim was
time-barred.

The Morris opinion brings some relief to healthcare
providers and the attorneys who represent them, as they do not have
to be concerned with facing a lawsuit from an 18-year-old who was
allegedly injured ten years earlier. On the other hand, attorneys
representing injured pediatric patients no longer have the luxury
of time when it comes to a certain group of clients.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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