{ "id": 11916929, "name": "JOHNSON NEUROLOGICAL CLINIC, INC., Plaintiff v. WILLIAM ARTHUR KIRKMAN, Defendant", "name_abbreviation": "Johnson Neurological Clinic, Inc. v. Kirkman", "decision_date": "1996-01-02", "docket_number": "No. 9418DC553", "first_page": "326", "last_page": "333", "citations": [ { "type": "official", "cite": "121 N.C. App. 326" } ], "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": "46 ALR3d 1325", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "44 ALR3d 760", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "44 ALR3d 482", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "21 ALR4th 1121", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "14 ALR4th 1385", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "99 ALR2d 251", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "205 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "mere entry on statement showing payment by insurance does not, standing alone, constitute part payment tolling the statute of limitations." } ], "opinion_index": 0 }, { "cite": "22 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11299541 ], "year": 1974, "pin_cites": [ { "parenthetical": "mere entry on statement showing payment by insurance does not, standing alone, constitute part payment tolling the statute of limitations." } ], "opinion_index": 0, "case_paths": [ "/nc-app/22/0075-01" ] }, { "cite": "238 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "part payment operates to toll statute if made under circumstances warranting an inference debtor recognizes his debt and acknowledges his willingness or obligation to pay" } ], "opinion_index": 0 }, { "cite": "293 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565332 ], "year": 1977, "pin_cites": [ { "parenthetical": "part payment operates to toll statute if made under circumstances warranting an inference debtor recognizes his debt and acknowledges his willingness or obligation to pay" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0498-01" ] }, { "cite": "247 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "whether by retention without objection of statement of account defendant agreed account was correct and agreed to pay was a jury question" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553784 ], "year": 1978, "pin_cites": [ { "parenthetical": "whether by retention without objection of statement of account defendant agreed account was correct and agreed to pay was a jury question" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0349-01" ] }, { "cite": "378 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "324 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482580 ], "year": 1989, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0427-01" ] }, { "cite": "263 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "299 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575281 ], "year": 1980, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0484-01" ] }, { "cite": "357 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "320 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729071 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0337-01" ] }, { "cite": "389 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "329 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "year": 1990, "opinion_index": 0 }, { "cite": "384 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523473 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0750-01" ] }, { "cite": "462 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793220, 793188, 793196, 793104, 793244 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0649-03", "/nc/341/0649-04", "/nc/341/0649-01", "/nc/341/0649-05", "/nc/341/0649-02" ] }, { "cite": "460 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "568" }, { "page": "569" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917722 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "779" }, { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0777-01" ] }, { "cite": "499 A.2d 1162", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "1163-64" }, { "page": "1164" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 753, "char_count": 16498, "ocr_confidence": 0.729, "pagerank": { "raw": 1.1625536277511471e-07, "percentile": 0.5843943025249735 }, "sha256": "f4f37eaf93ca83ff9d15477e1354fcaff0b7f225ca35725309e7e0457c8884a3", "simhash": "1:38e24c30bc10764a", "word_count": 2632 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and WALKER concur." ], "parties": [ "JOHNSON NEUROLOGICAL CLINIC, INC., Plaintiff v. WILLIAM ARTHUR KIRKMAN, Defendant" ], "opinions": [ { "text": "McGEE, Judge.\nDefendant Kirkman argues the entry of summary judgment in favor of plaintiff was improper. Because we find there is a genuine issue of material fact regarding whether the statute of limitations had expired, we agree.\nI.\nDefendant first argues the trial court erred by entering summary judgment for plaintiff and by not entering judgment for Kirkman, claiming the three-year statute of limitations had expired before the filing of plaintiffs complaint. Because it is not clear when the statute of limitations began to run, it is also unclear whether or not the action was timely filed.\nUnless otherwise provided by statute, there is a three-year limitation on actions upon contracts, obligations, or liabilities arising out of a contract, whether express or implied. N.C. Gen. Stat. \u00a7 1-52(1) (1994 cumm. supp.). Because this action was filed on Monday 6 July 1992, any claim arising before 4 July 1989 would be time barred. See N.C.R. Civ. Pro. 6(a) (In computing any time prescribed by statute, the last day is included \u201cunless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or a legal holiday.\u201d)\nAlthough neither party discusses the issue in their brief, North Carolina courts have yet to address the question of when a cause of action begins to run for collection of payment for medical services provided. When faced with this same issue, the Appellate Court of Connecticut held a hospital\u2019s right of action to collect for unpaid medical bills arose upon completion of the services rendered to the patient, and not at the time the patient was admitted or during the time the patient was treated. Gaylord Hosp. v. Massaro, 499 A.2d 1162 (Conn. App. Ct. 1985). The court held that where a physician is retained to render continuous and related services, usually related to a particular affliction, then the contract for medical services is deemed to be an indivisible contract against which the statute of limitations does not begin to run until all services are terminated. Gaylord Hosp., 499 A.2d at 1163-64. The court also analogized the issue to medical malpractice cases, where under a continuous course of treatment doctrine the statute does not begin to run until the treatment is terminated. Gaylord Hosp., 499 A.2d at 1164. Since the defendant\u2019s treatment was continuing and indivisible, the hospital\u2019s cause of action arose upon the completion of the treatment. Id.\nWe find the court\u2019s reasoning in Gaylord Hosp. to be persuasive and applicable to North Carolina law. North Carolina also recognizes the continued course of treatment doctrine in medical malpractice actions, whereby \u201cthe action accrues at the conclusion of the physician\u2019s 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.\u201d Horton v. Carolina Medicorp, Inc., 119 N.C. App. 777, 779, 460 S.E.2d 567, 568, disc. review allowed, 341 N.C. 649, 462 S.E.2d 511 (1995). Further, this doctrine has been expanded to apply to hospitals as well. Horton, 119 N.C. App. at 781, 460 S.E.2d at 569. We also find a similar analogy with materialmen\u2019s liens. Although a lien may be filed at anytime after the maturity of the underlying obligation, it is not time barred until 121 days after the last furnishing of labor or materials or the last improvement made by the claimant. N.C. Gen. Stat. \u00a7 44A-12(b) (1995). Therefore, we hold that, absent a contract stipulating the date when payment is due, a cause of action for collection of payment for continuing medical treatment arises at the time the last treatment is provided.\nIn this case, Kirkman received continuing treatment from plaintiff for injuries suffered in an automobile accident. Therefore, plaintiffs cause of action arose at the time the last medical services were provided to Kirkman. However, there is a genuine issue of material fact as to whether the last medical services were provided to Kirkman before or after 4 July 1989.\nKirkman\u2019s affidavit states: \u201cI was a patient of Johnson Neurological Clinic, Inc., from July 27, 1988 through July 5, 1989.\u201d A supplemental bill contained in the record also indicates Kirkman received treatment on 5 July 1989. However, a letter contained in the record from plaintiff to Kirkman dated 4 December 1990 states Kirkman\u2019s last visit to Johnson Neurological Clinic occurred on 12 June 1989. This date also corresponds to the last visit shown on the account statement for which Kirkman incurred charges. Because a genuine issue of material fact exits as to the date of Kirkman\u2019s last visit for purposes of determining when the statute of limitations began to run, summary judgment is inappropriate.\nII.\nHowever, plaintiff argues that regardless of the exact date on which the statute of limitations began to run, the settlement statement Kirkman executed on 25 July 1990 served as an acknowledgment sufficient to revive its claim within the applicable statutory period. We disagree.\nIn American Multimedia, Inc. v. Freedom Distributing, Inc., 95 N.C. App. 750, 384 S.E.2d 32 (1989), disc. review denied, 329 N.C. 46, 389 S.E.2d 84 (1990), this Court said such acknowledgments must be in writing and \u201cmust manifest a definite and unqualified intention to pay the debt in order for the writing to effectively toll the statute of limitations.\u201d American Multimedia, 95 N.C. App. at 752, 384 S.E.2d at 34. Such phrases as \u201cwe plan to pay\u201d and \u201cwe expect to pay\u201d the debt were held to be conditional expressions of defendant\u2019s willingness to pay the plaintiff and were not sufficiently precise to amount to an unequivocal acknowledgment of the original amounts owed. Id. Here, Kirkman\u2019s statement that he \u201cplan[ned] to re-file this on my insurance and [handle] the balance myself\u2019 indicates his payment was conditioned upon whatever the insurance coverage did not pay. It is not a \u201cdefinite and unqualified\u201d intent to pay and fails to show the nature and amount of the debt owed. At best, it demonstrates a willingness to pay only whatever amount would be left after refiling the claim with his insurance company. Therefore, the statement fails as an acknowledgment sufficient to toll the statute of limitations.\nIII.\nPlaintiff next argues Kirkman is equitably estopped from pleading the statute of limitations as a bar to recovery, citing Duke University v. Stainback, 320 N.C. 337, 357 S.E.2d 690 (1987). In Stainback, our Supreme Court held the plaintiff had been induced by defendant\u2019s conduct to reasonably believe it would be paid for medical services once defendant\u2019s lawsuit against his insurance carrier was concluded, thereby foregoing pursuit of its legal remedy. Stainback, 320 N.C. at 341, 357 S.E.2d at 693. However, plaintiff\u2019s reliance on Stainback is misplaced.\nThe services for which defendant incurred charges in Stainback were provided in 1977. Defendant\u2019s lawsuit against the insurance company did not come to trial until 1981 and was not final until this Court\u2019s decision in 1983. As a result, by the time the plaintiff discovered it would not be paid from the suit\u2019s proceeds, as it had been led to believe, the statute of limitations had run. In this case, plaintiff claims it was induced to forego efforts to collect on Kirkman\u2019s bill. However, even if plaintiff had been misled by Kirkman and his attorney in such a way to give rise to an estoppel claim, any expectations plaintiff had of receiving payment directly from the personal injury proceeds ended upon receipt of the 3 December 1990 letter containing a copy of Kirkman\u2019s settlement statement.\nEquitable estoppel arises when a party has been induced by another\u2019s acts to believe that certain facts exist, and that party \u201crightfully relies and acts upon that belief to his detriment.\u201d Thompson v. Soles, 299 N.C. 484, 487, 263 S.E.2d 599, 602 (1980). Here, there is no showing of reliance rising to estoppel. Even if plaintiff had relied upon Kirkman\u2019s representations and had foregone collection efforts, such reliance ended upon receipt of the settlement statement. This is shown by plaintiffs letter of 4 December 1990 demanding Kirkman begin making monthly payments towards his balance. Further, in March 1991 plaintiff threatened collection efforts if Kirkman did not make immediate payment. Had plaintiff brought this action as threatened in 1991, the action would have been filed within the statute of limitations. Because plaintiff was on notice it would not be directly paid from the personal injury proceeds, it could not rightfully rely on Kirkman\u2019s assertions to prevent it from being able to timely file this action. Plaintiffs position is distinguishable from the plaintiff in Stainback and equitable estoppel is not available.\nIV.\nNevertheless, these issues are not necessarily determinative of the appeal. If there are any grounds upon which to sustain the granting of summary judgment, then this Court must affirm. Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989). A review of the record shows circumstances upon which plaintiff could be entitled to judgment upon the theories of the existence of an account stated or a partial payment on account. However, because these theories require that factual determinations be made, summary judgment is inappropriate. See Mahaffey v. Sodero, 38 N.C. App. 349, 247 S.E.2d 772 (1978) (whether by retention without objection of statement of account d\u00e9fendant agreed account was correct and agreed to pay was a jury question); Electric Service, Inc. v. Sherrod, 293 N.C. 498, 238 S.E.2d 607 (1977) (part payment operates to toll statute if made under circumstances warranting an inference debtor recognizes his debt and acknowledges his willingness or obligation to pay); Hartness v. Penny, 22 N.C. App. 75, 205 S.E.2d 319 (1974) (mere entry on statement showing payment by insurance does not, standing alone, constitute part payment tolling the statute of limitations.)\nBecause we find there is a genuine issue of material fact, summary judgment for plaintiff is reversed and the case is remanded for trial.\nReversed and remanded.\nJudges EAGLES and WALKER concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Keziah, Gates, & Samet, L.L.P., by Jan H. Samet, for plaintiff-appellee.", "Baker & Boyan, P.L.L.C., by Robert S. Boyan and Jeffrey L. Mabe, for defendant-appellant." ], "corrections": "", "head_matter": "JOHNSON NEUROLOGICAL CLINIC, INC., Plaintiff v. WILLIAM ARTHUR KIRKMAN, Defendant\nNo. 9418DC553\n(Filed 2 January 1996)\n1. Limitations, Repose, and Laches \u00a7 55 (NCI4th)\u2014 continuing medical treatment \u2014 accrual of cause of action for collection of payment\nAbsent a contract stipulating the date when payment is due, a cause of action for collection of payment for continuing medical treatment arises at the time the last treatment is provided. In this case, there was a genuine issue of material fact as to when the last medical services were provided to defendant for purposes of determining when the statute of limitations began to run, and the trial court therefore erred in entering summary judgment for plaintiff.\nAm Jur 2d, Limitation of Actions \u00a7 100; Physicians, Surgeons, and Other Healers \u00a7 390.\nLimitation of actions: physician\u2019s claim for compensation for medical services or treatment. 99 ALR2d 251.\nWhen statute of limitations begins to run against action based on unwritten promise to pay money where there is no condition or definite time for repayment. 14 ALR4th 1385.\n2. Limitations, Repose, and Laches \u00a7 13 (NCI4th)\u2014 settlement statement \u2014 insufficient acknowledgment to toll statute of limitations\nA settlement statement signed by defendant in his personal injury claim was not a sufficient acknowledgment of a debt for medical treatment to toll the statute of limitations where defendant\u2019s statement that he \u201cplan[ned] to re-file this on my insurance and [handle] the balance myself\u2019 indicated that his payment was conditioned upon whatever the insurance coverage did not pay, was qot a definite and unqualified intent to pay, and failed to show the nature and amount of the debt owed.\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 325-337.\nNecessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay. 21 ALR4th 1121.\n3. Limitations, Repose, and Laches \u00a7 10 (NCI4th)\u2014 statute of limitations \u2014 defendant not equitably estopped from pleading\nDefendant was not equitably estopped from pleading the statute of limitations as a bar to recovery of costs for medical services rendered by plaintiff to defendant, since the evidence tended to show that, even if plaintiff had relied upon defendant\u2019s representations and had foregone collection efforts, such reliance ended when defendant settled his personal injury claim and forwarded a copy of his settlement statement to plaintiff; plaintiff thereafter wrote defendant a letter demanding that defendant begin making monthly payments; and plaintiff subsequently threatened collection efforts.\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 431-438, 445.\nPromises to settle or perform as estopping reliance on statute of limitations. 44 ALR3d 482.\nPlaintiff\u2019s diligence as affecting his right to have defendant estopped from pleading the statute of limitations. 44 ALR3d 760.\n4. Accounts and Accounts Stated \u00a7 5 (NCI4th)\u2014 claim for medical treatment \u2014 account stated \u2014 partial payment\nAlthough a review of the record shows circumstances which could entitle plaintiff to judgment on its claim for medical services rendered to defendant upon theories of account stated and partial payment on account, summary judgment is inappropriate because those theories require that factual determinations be made.\nAm Jur 2d, Accounts and Accounting \u00a7 51.\nAccount stated based upon check or note tendered in payment of debt. 46 ALR3d 1325.\nAppeal by defendant from order granting summary judgment to plaintiff entered 19 March 1994 by Judge Donald L. Boone in Guilford County District Court. Heard in the Court of Appeals 21 February 1995.\nDefendant William Kirkman engaged the services of plaintiff, Johnson Neurological Clinic, Inc., in July 1988 for treatment of injuries sustained in an automobile collision. The treatment, including physical therapy and later surgery, continued until sometime in mid-1989. Kirkman\u2019s health insurance carrier covered all but $163.63 of the charges until the surgery in April 1989. Kirkman incurred an additional $5,895.50 in charges for the surgery and follow-up treatment. These charges were never paid by Kirkman\u2019s insurance carrier.\nOn 6 July 1989, plaintiff received a letter from Kirkman\u2019s attorney advising that he would be representing Kirkman in a personal injury action arising out of the automobile collision. Plaintiff provided the attorney with Kirkman\u2019s medical records for use in settlement negotiations. After the contact with Kirkman\u2019s attorney, plaintiff made no further effort to collect the amount owed by Kirkman until late 1990.\nOn 16 November 1990, plaintiff contacted Kirkman\u2019s attorney about the status of Kirkman\u2019s personal injury claim. In response to this inquiry, on 3 December 1990 the attorney forwarded a copy of a portion of the settlement statement signed by Kirkman on 25 July 1990. Under the settlement, Kirkman received $42,500.00, of which $33,196.30 was paid directly to him. The settlement statement reads, in part:\nI, William A. Kirkman has [sic] requested my attorney not to pay Johnson Neurological out of this settlement. My plans are to refile this on my insurance and handled [sic] the balance myself.\ns/ William A. Kirkman William A. Kirkman\nAfter receiving this statement, plaintiff sent a letter to Kirkman dated 4 December 1990 requesting that he begin making monthly payments towards his unpaid balance. On 11 March 1991 plaintiff sent another letter to Kirkman, characterized as a \u201cFinal Request for payment\u201d threatening collection efforts unless payment was received on or before 19 March 1991.\nPlaintiff filed this action against Kirkman on 6 July 1992, seeking judgment for the amount owed plus interest. Kirkman filed an answer denying the allegations of the complaint and asserting the statute of limitations as an affirmative defense. Both parties moved for summary judgment and filed supporting affidavits. Based upon the pleadings,. affidavits, and memoranda submitted by counsel, the trial court entered summary judgment for plaintiff in the amount of $6,059.13, plus interest and costs. Kirkman appeals from this judgment.\nKeziah, Gates, & Samet, L.L.P., by Jan H. Samet, for plaintiff-appellee.\nBaker & Boyan, P.L.L.C., by Robert S. Boyan and Jeffrey L. Mabe, for defendant-appellant." }, "file_name": "0326-01", "first_page_order": 360, "last_page_order": 367 }