{ "id": 8522038, "name": "HELEN KING, Individually and as Administratrix of the Estate of John Carrol King, Deceased, Plaintiffs v. CAPE FEAR MEMORIAL HOSPITAL, INC., JOSEPH L. SOTO, Administrator of Cape Fear Memorial Hospital, Inc., DR. OLIVER R. HUNT, OLIVER R. HUNT, P.A., CARROL JOHNSON, C. BULLOCK and E. KRAMER, Defendants", "name_abbreviation": "King v. Cape Fear Memorial Hospital, Inc.", "decision_date": "1989-11-21", "docket_number": "No. 895SC263", "first_page": "338", "last_page": "343", "citations": [ { "type": "official", "cite": "96 N.C. App. 338" } ], "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": "305 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573251, 8573289, 8573226, 8573201, 8573274 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0759-03", "/nc/305/0759-05", "/nc/305/0759-02", "/nc/305/0759-01", "/nc/305/0759-04" ] }, { "cite": "287 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520018 ], "year": 1982, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0180-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "627" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "266 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "300 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561077 ], "year": 1980, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0295-01" ] }, { "cite": "46 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "228 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627546 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/228/0574-01" ] }, { "cite": "105 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "249 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611774 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/249/0199-01" ] } ], "analysis": { "cardinality": 516, "char_count": 10773, "ocr_confidence": 0.757, "pagerank": { "raw": 3.965523988443069e-07, "percentile": 0.9044465526754648 }, "sha256": "e5a3021836973aaf4f3973e6bfff728f6464f69aa7e2cbc9e2bd02dc9792bfed", "simhash": "1:3a5fbd2305688208", "word_count": 1724 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Becton concur." ], "parties": [ "HELEN KING, Individually and as Administratrix of the Estate of John Carrol King, Deceased, Plaintiffs v. CAPE FEAR MEMORIAL HOSPITAL, INC., JOSEPH L. SOTO, Administrator of Cape Fear Memorial Hospital, Inc., DR. OLIVER R. HUNT, OLIVER R. HUNT, P.A., CARROL JOHNSON, C. BULLOCK and E. KRAMER, Defendants" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nIn her first assignment of error, plaintiff contends the trial court erred in granting defendants\u2019 motions to dismiss for failure to state a claim under Rule 12(b)(6). She argues her claims were not barred by the applicable statutes of limitations because of the discovery exception for medical malpractice actions in G.S. l-15(c) which provides in pertinent part:\nWhenever there is bodily injury to the person . . . which originates under circumstances making the injury . . . not readily apparent to the claimant at the time of its origin, and the injury ... 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. . . .\nPlaintiff, as administratrix of her husband\u2019s estate, attempted to bring a claim against defendants for wrongful death under G.S. 28A-18-1 based on alleged acts of medical malpractice. She argues that this claim, because it was based on acts of medical malpractice, was preserved by the discovery exception in G.S. 145(c). We disagree.\nThe cause of action for wrongful death did not exist at common law but is a right provided only by statute. Bell v. Huskins, 249 N.C. 199, 105 S.E.2d 642 (1959). Therefore, any action brought for wrongful death must be asserted in conformity with the applicable statutory provisions. Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700 (1948). G.S. 1-53(4) imposes a two-year limitation period for bringing wrongful death claims beginning on the date of decedent\u2019s death. This statute, unlike G.S. 145(c), contains no discovery exception for latent or nonapparent injuries. As a result, plaintiff was required to bring her wrongful death claim within two years of the deceased\u2019s death. Because she did not do so, her claim was barred.\nPlaintiff also argues her complaint alleges a personal cause of action for intentional infliction of mental distress which is not barred by the statute of limitations. She claims this cause of action was also preserved by the discovery exception in G.S. 145(c). This argument has no merit. Because it is not specifically denominated under any limitation statute, a cause of action for emotional distress falls under the general three-year provision of G.S. 1-52(5). The record in the present case indicates that any intentional tortious conduct by the deceased\u2019s treating physician (defendant Hunt) must have taken place on or before 27 August 1985 when the doctor was dismissed. Plaintiff\u2019s failure to file her complaint by 27 August 1988 therefore resulted in the loss of any potential claim for emotional distress. The discovery exception of G.S. 145(c), which by its terms concerns only acts or omissions constituting malpractice, does not apply to preserve actions for emotional distress.\nPlaintiff additionally contends her complaint stated a claim for loss of consortium. Once again, however, her action is barred. Although the spouse of a deceased victim may maintain an action for loss of consortium due to the negligence of a third party, such an action is available only when it \u201cis joined with any suit the other [deceased] spouse may have instituted to recover for his or her personal injuries.\u201d Nicholson v. Chatham Memorial Hospital, 300 N.C. 295, 304, 266 S.E.2d 818, 823 (1980). As stated previously, the only action available to plaintiff\u2019s deceased husband was one for wrongful death through his personal representative. Since that action was barred by the two-year statute of limitations, plaintiffs claim for loss of consortium is likewise precluded.\nFinally, plaintiff complains the trial court erroneously refused to consider several affidavits offered by her in response to defendants\u2019 Rule 12(b)(6) motions. She claims the trial court considered \u201cmatters outside the pleadings\u201d in ruling on the motions, thereby converting them to motions for summary judgment under Rule 56 and requiring the trial court to consider her affidavits. A motion to dismiss for failure to state a claim is \u201cconverted to a Rule 56 motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court.\u201d Stanback v. Stanback, 297 N.C. 181, 205, 254 S.E.2d 611, 627 (1979); Baugh v. Woodard, 56 N.C. App. 180, 181, 287 S.E.2d 412, 413, disc. rev. denied, 305 N.C. 759 (1982); North Carolina Rules of Civil Procedure, Rule 12(b). In addition to plaintiff\u2019s complaint, the trial judge considered the following in ruling on defendants\u2019 motions:\n1) Plaintiff\u2019s motion to make more definite and certain and to delay hearing on defendants\u2019 Rule, 12(b)(6) motion and memorandum and affidavit in support of motion.\n2) Defendants\u2019 supplemental motion to dismiss for failure to state a claim; and\n3) Defendants\u2019 response to plaintiff\u2019s motion to make more definite and certain the 12(b)(6) motions of defendants.\nThese materials constitute only requests, explanations, and arguments of counsel on both sides with respect to defendants\u2019 Rule 12(b)(6) motions. As such, they are not matters outside the pleadings within the meaning of Rule 12(b). Moreover, assuming arguendo that the trial court improperly refused to consider plaintiff\u2019s affidavits, such error was not prejudicial. The record establishes that all of plaintiffs claims were at least indirectly precluded by the statute of limitations. Such a bar is therefore insurmountable, notwithstanding any additional facts or arguments plaintiff\u2019s affidavits may have contained.\nFor the reasons stated, we hold the trial judge properly allowed defendants\u2019 motions to dismiss.\nAffirmed.\nJudges Arnold and Becton concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Otho L. Graham and Wallace, Morris, Barwick & Rochelle, P.A., hy Fitzhugh E. Wallace, Jr., for plaintiff, appellant.", "Ward and Smith, P.A., by Thomas E. Harris and C. David Creech, for defendants, appellees Cape Fear Memorial Hospital, Inc., Joseph L. Soto, Carrol Johnson, M.D., Paula S. Bullock and Elizabeth Kramer.", "Yates, Fleishman, McLamb and Weyer, by Dan J. McLamb, for defendants, appellees Dr. Oliver R. Hunt and Oliver R. Hunt, P.A." ], "corrections": "", "head_matter": "HELEN KING, Individually and as Administratrix of the Estate of John Carrol King, Deceased, Plaintiffs v. CAPE FEAR MEMORIAL HOSPITAL, INC., JOSEPH L. SOTO, Administrator of Cape Fear Memorial Hospital, Inc., DR. OLIVER R. HUNT, OLIVER R. HUNT, P.A., CARROL JOHNSON, C. BULLOCK and E. KRAMER, Defendants\nNo. 895SC263\n(Filed 21 November 1989)\n1. Death \u00a7 4 (NCI3d)\u2014 wrongful death action \u2014 medical malpractice-statute of limitations\nThe trial court did not err by granting defendants\u2019 motions to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) a wrongful death action arising from medical malpractice due to the statute of limitations. The cause of action for wrongful death is provided only by statute and must be asserted in conformity with the applicable statutory provisions. The statute of limitations for bringing wrongful death claims, N.C.G.S. \u00a7 1-53(4), contains no discovery exception for latent or nonapparent injuries. N.C.G.S. \u00a7 145(c).\nAm Jur 2d, Death \u00a7\u00a7 60, 71; Physicians, Surgeons, and Other Healers \u00a7\u00a7 316, 321.\n2. Trespass \u00a7 2 (NCI3d); Limitation of Actions \u00a7 5 (NCI3d) \u2014 intentional infliction of emotional distress \u2014 statute of limitations\nThe trial court did not err by granting defendants\u2019 motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6), of an action for intentional infliction of mental distress arising from medical malpractice because the action was barred by the statute of limitations. Because it is not specifically denominated under any limitation statute, the cause of action for emotional distress falls under the general three-year provision of N.C.G.S. \u00a7 1-52(5) and the discovery exception of N.C.G.S. \u00a7 145(c) does not apply.\nAm Jur 2d, Death \u00a7\u00a7 60, 71; Physicians, Surgeons, and Other Healers \u00a7\u00a7 316, 321.\n3. Husband and Wife \u00a7 9 (NCI3d); Limitation of Actions \u00a7 4 (NCI3d)\u2014 loss of consortium \u2014 wrongful death \u2014 statute of limitations\nThe trial court did not err by granting defendants\u2019 motion for dismissal under N.C.G.S. \u00a7 1-A-l, Rule 12(b)(6), of a claim for loss of consortium arising from wrongful death where the action was barred by the wrongful death statute of limitations. An action for loss of consortium is available only when it is joined with any suit the deceased spouse may have instituted to recover for his or her personal injuries, and the only action available to plaintiffs deceased husband was one for wrongful death through his personal representative.\nAm Jur 2d, Husband and Wife \u00a7\u00a7 453, 454.\n4. Rules of Civil Procedure \u00a7 12.1 (NCI3d)\u2014 Rule 12(b)(6) motion-matters outside the pleadings\nThe trial court did not erroneously refuse to consider several affidavits offered by plaintiff in her response to defend-. ants\u2019 motions to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6), where the other matters considered by the court, which plaintiff contended were matters outside the pleadings converting the motions to motions for summary judgment, were only requests, explanations, and arguments of counsel on both sides with respect to defendants\u2019 Rule 12(b)(6) motions. Even assuming that the trial court improperly refused to consider plaintiff\u2019s affidavits, such error was not prejudicial because all of plaintiff\u2019s claims were at least indirectly precluded by the statute of limitations.\nAm Jur 2d, Dismissal, Discontinuance, and Nonsuit \u00a7\u00a7 62, 63.\nAppeal by plaintiff from Tillery, Judge. Order entered 9 December 1988 in District Court, New HANOVER County. Heard in the Court of Appeals 11 October 1989.\nThis is a civil action wherein plaintiff, individually and as administratrix of her deceased husband\u2019s estate, seeks damages for wrongful death, loss of consortium, and intentional infliction of emotional distress resulting from the medical care her husband received during his final illness. Evidence presented at trial established the following facts:\n1) On 30 July 1985, John King underwent lung surgery at defendant hospital for the removal of a cancerous lesion.\n2) On 27 August 1985, King\u2019s family, upset with his progress and with the treatment he was receiving, dismissed King\u2019s doctor (defendant Hunt) and had another physician assume his care.\n3) On 2 September 1985, King died due to complications resulting from the surgery performed on 30 July.\n4) On 29 August 1988, plaintiff brought suit against the named defendants alleging medical malpractice, wrongful death, loss of consortium, and intentional infliction of emotional distress.\nAll defendants subsequently filed motions to dismiss pursuant to Rule 12(b)(6) for failure to state a claim to which relief could be granted. From an order allowing the motions to dismiss, plaintiff appealed.\nOtho L. Graham and Wallace, Morris, Barwick & Rochelle, P.A., hy Fitzhugh E. Wallace, Jr., for plaintiff, appellant.\nWard and Smith, P.A., by Thomas E. Harris and C. David Creech, for defendants, appellees Cape Fear Memorial Hospital, Inc., Joseph L. Soto, Carrol Johnson, M.D., Paula S. Bullock and Elizabeth Kramer.\nYates, Fleishman, McLamb and Weyer, by Dan J. McLamb, for defendants, appellees Dr. Oliver R. Hunt and Oliver R. Hunt, P.A." }, "file_name": "0338-01", "first_page_order": 370, "last_page_order": 375 }