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Brittain v. Cinnoca8/17/1993
On 17 March 1988, Johnny Brittain sustained injuries arising out of an automobile accident and sought treatment at Frye Regional Medical Center. The medical center's attending emergency room physician, Ronald J. Cinnoca M.D., provided emergency room treatment to Mr. Brittain, to wit: application of sutures to Mr. Brittain's facial lacerations with instructions that they be removed in five days.
On 22 March 1988, Mr. Brittain, pursuant to the emergency room physician's instructions, consulted his family physician in order to have the sutures removed. At that time, he complained of continuing pain in the area of his facial lacerations.
On 1 April 1988, Mr. Brittain again consulted his family physician, who at that time, noticed asymmetry about Mr. Brittain's face and associated said asymmetry and Mr. Brittain's persistent coughing up blood with a possible facial fracture or other theretofore non-apparent injury . On 13 April 1988, Mr. Brittain underwent surgery for the correction of a facial tripod fracture which had been diagnosed subsequent to Mr. Brittain's initial consultation with defendants. On 20 March 1991, plaintiffs, Johnny Brittain and Paulette Brittain, filed an application for an extension of time to
file a complaint. On 9 April 1991, plaintiffs filed a complaint and summons.
Plaintiffs contend that the trial court erred when it granted defendants' motions to dismiss based upon a bar of their claim by a three year statute of limitation. We disagree.
Upon review of a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the question for the Court is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief could be granted under some legal theory. Harris v. NCNB, 85 N.C. App. 669, 355 S.E.2d 838 (1987). "A legal insufficiency may be due to an absence of law to support a claim of the sort made, absence of fact sufficient to make a good claim or the disclosure of some fact which will necessarily defeat the claim." State of Tennessee v. Environmental Management Comm., 78 N.C. App. 763, 765, 338 S.E.2d 781, 782 (1986).
The trial court, in granting the motion to dismiss, held that plaintiffs failed to bring their claim within the applicable time limit provided by the statutes, and as a result, plaintiffs failed to state a claim upon which relief could be granted.
The statute applicable to a medical malpractice action is North Carolina General Statutes ยง 1-15(c) which states in pertinent part:
(c) Except where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. . . .
The statute esta
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