The Court of Appeals of North Carolina (“North Carolina Appellate Court”) applied the continuous course of treatment doctrine in its opinion filed on September 18, 2018 in reviving a North Carolina medical malpractice case in which the plaintiffs alleged that the defendant obstetrician gynecologist (“OB/GYN”) negligently misinterpreted a cystic fibrosis test and therefore failed to advise them regarding the risk of having a baby inflicted with the debilitating disease, resulting in a second pregnancy and the birth of a child with cystic fibrosis.
The Underlying Facts
When the plaintiffs became pregnant with their first child, they underwent routine, voluntary testing for cystic fibrosis (“CF”) that revealed that the mother was a carrier of the cystic fibrosis mutation. The test results recommended that the father be tested and the parents be provided with appropriate genetic counseling but the defendant OB failed to review and/or incorrectly interpreted the test and incorrectly entered into the mother’s medical records that the mother’s CF testing was negative, which information was repopulated in the mother’s medical records thereafter until after the birth of their second child in December 2015.
On March 14, 2011, the plaintiffs’ first child was born healthy and without CF. The mother continued receiving medical care including postpartum care and advice on family planning and birth control from the defendant OB’s medical practice. On March 19, 2015, the plaintiff received OB/GYN care, advice, and counseling that included discussions of the health of her child and husband, and additional health issues related to birth control measures, from the defendant OB/GYN.
The plaintiffs had their second child on December 5, 2015. CF testing was not done for that pregnancy due to the prior CF testing that the defendant OB/GYN reported to them as negative. The plaintiffs were told on January 28, 2016 that testing confirmed that their second child had CF.
The plaintiffs continued receiving medical care from the defendants. On June 22, 2016, the defendant OB/GYN documented in the mother’s medical records that he did not advise the plaintiffs regarding the correct information from the original CF test.
The plaintiffs subsequently filed their North Carolina medical malpractice complaint alleging that the plaintiff was under the continuous care of the defendants for issues relating to family planning including but not limited to relevant and applicable genetic testing; that the defendants knew or should have known that both plaintiffs relied on the continuous care of the defendants to provide accurate advice and counsel for issues relating to family planning including but not limited to relevant and applicable genetic testing; that the defendants had a duty to provide appropriate, accurate and reasonable care and counseling regarding reproductive issues and the risks attendant with the same; that proper testing and information would have provided them the opportunity to make informed decisions about childbearing; and, that the defendants knew or should have known that the plaintiffs could suffer severe emotional distress should they have a child with CF, and bear unanticipated and dramatically increased costs of child rearing due to medical needs and expenses of a child with CF.
On September 13, 2017, the trial court dismissed the plaintiffs’ North Carolina medical malpractice complaint with prejudice, finding that the complaint failed to state a claim upon which relief may be granted based on (1) the running of the four-year statute of repose; (2) any claim for wrongful birth, to the extent Plaintiffs alleged such a claim; and (3) any claim for wrongful conception, to the extent Plaintiffs asserted such a claim, as to damages for extraordinary costs associated with rearing a child with cystic fibrosis. The plaintiffs subsequently appealed.
North Carolina Appellate Court Opinion
The North Carolina Appellate Court stated that the question before it was whether a claim for professional malpractice against a doctor for alleged negligence in interpreting and/or communicating test results is barred by the four-year statute of repose contained in North Carolina’s professional malpractice statute of limitations, N.C. Gen. Stat. § 1-15(c) (2017), when the claim is filed more than six years after the doctor interpreted and/or communicated the results.
Statute Of Repose
The North Carolina Appellate Court stated that unlike statutes of limitations, which run from the time a cause of action accrues, statutes of repose create time limitations which are not measured from the date of injury but rather from the defendant’s last act giving rise to the claim or from substantial completion of some service rendered by the defendant.
Continuous Course Of Treatment Doctrine
The North Carolina Appellate Court stated that the continuing course of treatment doctrine has been accepted as an exception to the rule that the action accrues at the time of the defendant’s negligence. Under the continuous course of treatment doctrine, the action accrues at the conclusion of the physician’s treatment of the patient, so long as the patient has remained under the continuous treatment of the physician for the injuries which gave rise to the cause of action.
The North Carolina Appellate Court determined that the defendants had a continuing duty to care for the plaintiffs, based on the ongoing family planning and health needs undergirding the relationship; the defendants continued and repeated the wrongful treatment without correction; and, further action taken to correct the test results could have remedied the danger caused by the original act. Moreover, the plaintiffs did not know, nor should they have known, of the malpractice that had occurred — that of incorrect information regarding the plaintiff being a cystic fibrosis carrier — until the birth of their second child (“It would be senseless to expect Plaintiffs would presciently know of the misinformation, before a problem arose, and would leave no recourse for Plaintiffs. As they moved forward with family planning decisions, such unknown abnormalities could have arisen many years later. No matter the number of years, the information would have been new to Plaintiffs.”).
The North Carolina Appellate Court held that the continuing course of treatment doctrine “squarely applies” to the plaintiffs’ medical malpractice claims, and the plaintiffs’ claim accrues from the defendants’ last act giving rise to the claim — the treatment of the plaintiff and advice to the plaintiffs for family planning.
The North Carolina Appellate Court held: “Defendant’s last act giving rise to the claim occurred on 17 March 2014, [the plaintiff’s] last preconception appointment. The 17 March 2014 appointment was within the three year statute of limitations, after obtaining the 120-day filing extension, and not more than four years after Plaintiffs received continuing care and advice regarding family planning. Accordingly, Plaintiffs’ claim is not barred by the four-year statute of repose set forth in N.C. Gen. Stat. § 1-15(c).”
The North Carolina Appellate Court further held: “taking the factual allegations as true, the complaint states a claim upon which relief may be granted. Plaintiffs alleged in their complaint medical malpractice, negligent infliction of emotional distress, and economic damages.”
Source Glover v. The Charlotte-Mecklenburg Hospital Authority, No. COA 17-1398.
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