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HUME v. LONG12/5/1988
Heard Oct. 17, 1988.
Decided Dec. 5, 1988.
This is an action in negligence for professional malpractice. Muriel Hume, as executrix of the estate of her deceased husband, Donald E. Hume, sued John D. Long, III, and O. Eugene Powell, Jr., two lawyers who formerly represented the estate in a potential medical malpractice suit. She alleges that Long and Powell let the statute of limitations run on her husband's claim while they were acting as his attorneys. Long and Powell moved for summary judgment. The circuit court granted the motion on the ground that the applicable statute of limitations did not run during the time Long and Powell represented the estate. Mrs. Hume appeals. We affirm.
The material facts are undisputed. From March, 1976 to February, 1978, two doctors from the Durwood Medical Clinic in Charlotte, North Carolina, treated Mr. Hume for hypertension and related problems. Mr. Hume's personal physician in Union, South Carolina, also treated him during this period. On February 25, 1978, Mr. Hume died, arguably of causes related to his hypertension.
In the spring of 1979, Mrs. Hume, as executrix of the estate, retained Long to develop a medical malpractice claim against Durwood Clinic and the three physicians. A few months later, with Mrs. Hume's consent, Long associated
In February, 1981, the lawyers who now represent the estate commenced an action in South Carolina for
On February 14, 1986, the estate's lawyers commenced this action. The theory of their case is as follows: At the time Mrs. Hume retained Long and Powell, Mr. Hume's estate had a cause of action for
In defense, Long and Powell argue that the applicable statute of limitations is the three year professional malpractice statute contained in the North Carolina general statute of limitations. This statute ran on February 22, 1981. Since the statute did not run until well after Long and Powell ceased to represent Hume, they cannot be charged with letting the statute run on Hume's claim.
The question presented is whether
North Carolina's general statute of limitations provides:
Civil actions can only be commenced within the periods
prescribed in this Chapter, after the cause of action has
accrued, except where in special cases a different limitation
is prescribed by statute.
N.C. Gen. Stat. Section 1-15(a) (1983). The statute then sets forth special rules to determine when a cause of action for professional malpractice accrues. It provides, in pertinent part:
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 in specified cases it
accrues at the time of discovery of the injury ]; Provided
nothing herein shall be construed to reduce the statute
of limitation in any such case below three years. Provided
further that in no event shall an action be commenced
more than four years from the last act of the
defendant giving rise to the cause of action.
Id. at Section 1-15(c). The subchapter goes on to provide various periods of limitation for different causes of action. None of these involves claims for professional malpractice. It does include a two year limitation for:
Actions for damages on account of the death of a person
caused by the wrongful act, neglect, or fault of another
under G.S. 28A-18-2 [Lord Campbell's Act]; the cause of
action shall not accrue until the date of death. . . .
Page 1 2 South Carolina Personal Injury Attorneys
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