{ "id": 8526300, "name": "GEORGE MITCHELL HATEM v. JAMES ALEXANDER BRYAN, III", "name_abbreviation": "Hatem v. Bryan", "decision_date": "1995-02-07", "docket_number": "No. 9415SC240", "first_page": "722", "last_page": "725", "citations": [ { "type": "official", "cite": "117 N.C. App. 722" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "80 ALR2d 368", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "341 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720582, 4719788, 4714509, 4714299, 4715580 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0586-04", "/nc/315/0586-03", "/nc/315/0586-05", "/nc/315/0586-02", "/nc/315/0586-01" ] }, { "cite": "332 S.E.2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527097 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0305-01" ] }, { "cite": "208 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "727" }, { "page": "668" } ], "opinion_index": 0 }, { "cite": "285 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569803 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0724-01" ] }, { "cite": "399 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495424, 2499714, 2498482, 2493493, 2500383 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0638-05", "/nc/327/0638-02", "/nc/327/0638-01", "/nc/327/0638-03", "/nc/327/0638-04" ] }, { "cite": "394 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524754 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0710-01" ] }, { "cite": "247 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551832 ], "year": 1978, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0050-01" ] }, { "cite": "365 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521315 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0250-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 438, "char_count": 6723, "ocr_confidence": 0.742, "pagerank": { "raw": 1.4104952684631772e-07, "percentile": 0.6468535424266048 }, "sha256": "12091ec491f703a70b40432a21cdd852690bf1e859d46ceaadfaab45cb5743f7", "simhash": "1:bb7a6e749da76572", "word_count": 1144 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "GEORGE MITCHELL HATEM v. JAMES ALEXANDER BRYAN, III" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff, George M. Hatem, suffered from sarcoidosis, a chronic disease process of unknown cause which may affect any organ or tissue of the body, and sought treatment from defendant, Dr. James A. Bryan, III, in 1976. Plaintiff received regular treatment from defendant until the fall of 1986 when plaintiff\u2019s brother, Dr. Joseph Patrick Hatem, became concerned by plaintiff\u2019s continued illness. Dr. Hatem arranged for plaintiff to be evaluated by Dr. Peter Pappas, a physician and colleague of Dr. Hatem. Dr. Pappas examined plaintiff on 22 September 1986 and on 6 October 1986. Plaintiff testified to the following in his deposition regarding Dr. Pappas\u2019s examination:\nQ Do you recall Dr. Pappas, in any way, being critical of Dr. Bryan\u2019s care of you?\nA Yes, I do, and I can give you a quote, although it\u2019s vulgar.\nQ If you would.\nA \u201cHe should be hung by his balls.\u201d\nQ And Dr. Pappas said that to you and to Joe Pat [plaintiff\u2019s brother] in 1986?\nA Correct.\nQ Did he make any other comment about Dr. Bryan\u2019s care of you?\nA Not that I can recall. He may have.\nDr. Pappas referred plaintiff to Dr. W. Giles Allen, Jr. for an evaluation of plaintiff\u2019s fatigue and shortness of breath. Subsequently, defendant saw plaintiff on 7 January 1987 and 11 February 1987. Plaintiff then lost confidence in defendant\u2019s treatment and was treated on 11 March 1987 by Dr. Joseph W. Kittinger who diagnosed plaintiff as suffering from severe sarcoidosis with lung disease and prescribed high dose steroids to treat the condition. Plaintiff testified in his deposition that Dr. Kittinger criticized Dr. Bryan\u2019s treatment, but plaintiff could not recall exactly what Dr. Kittinger said.\nPlaintiff\u2019s brother, Dr. Hatem, examined plaintiff\u2019s medical records while under defendant\u2019s care. Dr. Hatem discovered that defendant did not inform plaintiff of the results of his tests. Plaintiff then filed this action against defendant for medical malpractice on 1 February 1990.\nDefendant moved for summary judgment on the basis that the action was barred by the applicable three-year statute of limitations of N.C. Gen. Stat. \u00a7 l-15(c). After a hearing, the trial court determined plaintiff\u2019s action was time barred and dismissed it with prejudice. From that order, plaintiff appeals.\nPlaintiff argues that the trial court erred by dismissing plaintiff\u2019s action on the grounds that it was barred by the statute of limitations. We agree.\nN.C. Gen. Stat. \u00a7 1-15(c) provides in pertinent part:\nExcept 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. 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.\nN.C. Gen. Stat. \u00a7 1-15(c) (1983).\n' This statute provides that the cause of action accrues and the statute of limitations begins to run at the time of the defendant\u2019s last act which gives rise to the cause of action. Callahan v. Rogers, 89 N.C. App. 250, 365 S.E.2d 717 (1988). \u201c[T]he cause of action accrue[s] at the earlier of (1) the termination of defendant\u2019s treatment of plaintiff or (2) the time at which the plaintiff knew or should have known of his injury.\u201d Ballenger v. Crowell, 38 N.C. App. 50, 60, 247 S.E.2d 287, 294 (1978); see Stallings v. Gunter, 99 N.C. App. 710, 394 S.E.2d 212, disc. review denied, 327 N.C. 638, 399 S.E.2d 125 (1990). Whether a cause of action is barred by the statute of limitations is a mixed question of law and fact and when the facts are admitted or established the trial court may dismiss the action as a matter of law. Little v. Rose, 285 N.C. 724, 208 S.E.2d 666 (1974). When, however, the. evidence is sufficient to support an inference that the limitations period has not expired, the issue should be submitted to the jury. Id. at 727, 208 S.E.2d at 668; Calhoun v. Calhoun, 76 N.C. App. 305, 332 S.E.2d 734, disc. review denied, 315 N.C. 586, 341 S.E.2d 23 (1985).\nIn the instant case, plaintiff argues that his cause of action accrued on 11 February 1987, the last date he was treated by defendant. Defendant argues that plaintiffs cause of action accrued when Dr. Pappas told him that defendant \u201cshould be hung up by his balls.\u201d We find that the question of whether this statement was sufficient to charge plaintiff with notice that he had a cause of action is not so clear that it could be decided as a matter of law. Therefore, we conclude that the issue of when the limitations period expired is a question of fact for the jury. Accordingly, the judgment of the trial court is\nReversed.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Law Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Kenneth B. Oettinger, for plaintiff-appellant.", "Yates, McLamb & Weyher, L.L.P., by Bruce W. Berger and Suzanne S. Lever, for defendant-appellee." ], "corrections": "", "head_matter": "GEORGE MITCHELL HATEM v. JAMES ALEXANDER BRYAN, III\nNo. 9415SC240\n(Filed 7 February 1995)\nLimitations, Repose, and Laches \u00a7 22 (NCI4th)\u2014 medical malpractice \u2014 accrual of claim \u2014 jury question\nAn issue of fact for the jury was presented as to whether a claim for medical malpractice accrued on the date of defendant physician\u2019s last treatment of plaintiff or on the earlier date a second physician who examined plaintiff told him that defendant physician \u201cshould be hung by his balls,\u201d since the question of whether the second physician\u2019s statement was sufficient to charge plaintiff with notice that he had a cause of action is not so clear that it could be decided as a matter of law.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7 321.\nWhen statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner. 80 ALR2d 368.\nAppeal by plaintiff from order entered 10 November 1993 by Judge Robert H. Hobgood in Orange County Superior Court. Heard in the Court of Appeals 21 October 1994.\nLaw Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Kenneth B. Oettinger, for plaintiff-appellant.\nYates, McLamb & Weyher, L.L.P., by Bruce W. Berger and Suzanne S. Lever, for defendant-appellee." }, "file_name": "0722-01", "first_page_order": 754, "last_page_order": 757 }