IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-555

No. COA21-378

Filed 16 August 2022

Pitt County, No. 20CVS2164

FREEDOM MORRIS, Plaintiff,

v.

DAVID RODEBERG, M.D., individually and in his individual capacity, and PITT 

COUNTY MEMORIAL HOSPITAL, INCORPORATED d/b/a VIDANT MEDICAL 

CENTER, Defendants.

Appeal by defendants from order entered 16 March 2021 by Judge J. Carlton 

Cole in Pitt County Superior Court. Heard in the Court of Appeals 8 February 2022.

Cranfill Sumner LLP, by Steven A. Bader and Colleen N. Shea, for defendantappellant Pitt County Memorial Hospital Incorporated, et al.

Ellis & Winters LLP, by Alex J. Hagan, Michelle A. Liguori, and Robert L. 

Barry, for defendant-appellant David Rodeberg, M.D.

Oxendine Barnes & Associates PLLC, by Ryan D. Oxendine, James A. Barnes, 

IV, and Spencer S. Fritts, for plaintiff-appellee.

Roberts & Stevens, PA, by David C. Hawisher, for Amicus Curiae North 

Carolina Association of Defense Attorneys.

GORE, Judge.

¶ 1 Plaintiff Freedom Morris initiated this medical malpractice action against Dr. 

Rodeberg and Vidant Hospital (collectively, “defendants”). Defendants filed Motions 

to Dismiss plaintiff’s Complaint as time-barred under N.C. Gen. Stat. § 1-17(c). The 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

trial court entered a written order denying defendants’ motions, and defendants 

appealed. Upon review, we reverse. 

I. Factual and Procedural Background

¶ 2 On 23 February 2015, plaintiff presented to the Emergency Department at 

Vidant Medical Center with complaints of right-sided abdominal pain. Plaintiff was 

evaluated by the pediatric surgery team, and an abdominal ultrasound confirmed 

acute appendicitis. Plaintiff was a thirteen-year-old minor at the time, and his 

mother was present with him.

¶ 3 The following day, on 24 February 2015, plaintiff underwent a laparoscopic 

appendectomy—a minimally invasive surgery to remove the appendix through 

several small incisions, rather than one large incision. Dr. Rodeberg, the chief of 

pediatric surgery at Vidant Hospital, performed the surgery.

¶ 4 Plaintiff alleges that Dr. Rodeberg negligently performed the appendectomy by 

failing to remove the entire appendix and properly irrigate the operative site. After 

the initial surgery, plaintiff developed an infection and underwent two additional 

surgeries. Plaintiff was released from the hospital on 20 March 2015.

¶ 5 On 14 September 2020, plaintiff filed the instant lawsuit against defendants, 

alleging medical malpractice claims arising from defendants’ care and treatment of 

plaintiff’s appendicitis. Plaintiff alleged that Dr. Rodeberg breached the standard of 

care in performing the appendectomy, and that Vidant Hospital was negligent and 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

vicariously liable for Dr. Rodeberg’s conduct.

¶ 6 In his Complaint, plaintiff specifically alleged, “The statute of limitations has 

not expired prior to the filing of this civil action; more specifically, this action is being 

brought prior to the one year statute of limitations provided by N.C.G.S. § 1-17(b), as 

[plaintiff] was a minor until November 28, 2019.” On 12 and 16 November 2020, 

defendants filed Motions to Dismiss under Rule 12(b)(6), alleging N.C. Gen. Stat. § 1-

17(c) applied, and the statute of limitations on plaintiff’s claim ran three years after 

plaintiff’s surgery while he was still a minor.

¶ 7 In response to defendants’ Motions to Dismiss, plaintiff submitted a brief for 

the trial court’s consideration, arguing that:

1. The statute of limitations for Plaintiff’s causes of action 

had not run by the filing of Plaintiff’s Complaint because 

Plaintiff’s Complaint was filed prior to him turning 

nineteen years of age and thus was timely under N.C. Gen. 

Stat. § 1-17(b); and

2. Defendants’ strained interpretation of Subsection 1-

17(c) would violate the Equal Protection Clause of the 

United States and North Carolina Constitutions as applied 

to Plaintiff.

¶ 8 On 15 February 2021, Superior Court Judge J. Carlton Cole heard defendants’ 

Motions to Dismiss. At the outset of the hearing, counsel for defendants noted the 

parties agreed that plaintiff’s action accrued in February 2015, when the 

appendectomy was performed. Counsel for defendants argued that, based on the 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

February 2015 accrual date, plaintiff’s age of thirteen at the time of accrual, and the 

fact that the Complaint was filed in September of 2020—more than five years later—

the complaint should be dismissed pursuant to the plain language of sections 1-17(c) 

and 1-15(c), which provided a three-year statute of limitations.

¶ 9 Plaintiff argued subsection (c) of § 1-17 did not apply to medical malpractice 

actions involving minors over the age of ten at the time of accrual of the action. 

Instead, subsection (b) of § 1-17 applied. Plaintiff also contended, if subsection (c) 

applied, it was unconstitutional as applied to plaintiff. Specifically, he argued 

defendants’ statutory interpretation violated his Equal Protection rights because it 

treated minors differently, based on whether they were under or over the age of ten 

at the time of accrual of the action.

¶ 10 Defendants contended plaintiff’s constitutional argument was a facial 

challenge to subsection (c) of § 1-17. Further, defendants asserted this argument was 

not properly before the trial court because it was not raised in plaintiff’s Complaint, 

and because only a three-judge panel of the Superior Court of Wake County could 

determine that a North Carolina statute is unconstitutional.

¶ 11 On 15 March 2021, the trial court entered an Order denying defendants’ 

Motions to Dismiss. The Order did not specify on which grounds the trial court based 

its ruling, stating only that defendants brought their Motions “under N.C. Gen. Stat. 

§§ 1-15(c), 1-17(c), and 1-52.” The trial court did not rule on plaintiff’s constitutional 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

argument. Fifteen days later, on 31 March 2021, Judge Cole retired from the bench. 

On 5 April 2021, defendants filed their Joint Notice of Appeal to this Court from 

Judge Cole’s Order Denying Defendants’ Motions to Dismiss entered 16 March 2021.

II. Appellate Jurisdiction

¶ 12 “Orders denying motions to dismiss based upon the statute of limitations are 

interlocutory and not immediately appealable.” Nello L. Teer Co. v. N.C. DOT, 175 

N.C. App. 705, 711, 625 S.E.2d 135, 139 (2006). However, there are at least two 

routes by which a party may obtain immediate review of an interlocutory order or 

judgment. First, if the order or judgment is final as to some but not all the claims or 

parties, and the trial court certifies there is no reason for delay. N.C. Gen. Stat. § 1A1, Rule 54(b) (2021). Second, an interlocutory order can be immediately appealed 

under §§ 1-277(a) and 7A-27(b)(3)(a) if the trial court’s decision deprives the appellant 

of a substantial right which would be lost absent immediate review. §§ 1-277(a), 7A27(b)(3)(a) (2021).

¶ 13 Here, defendants assert the trial court’s Order affects a substantial right 

because Judge Cole retired shortly after denying their motions to dismiss, thereby 

depriving them of an opportunity to bring a motion for reconsideration. Defendants 

cite generally to our well-established rule “that no appeal lies from one Superior 

Court judge to another; that one Superior Court judge may not correct another’s 

errors of law; and that ordinarily one judge may not modify, overrule, or change the 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

judgment of another Superior Court judge previously made in the same action.” 

Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) (citation 

omitted).

¶ 14 While not explicitly argued by either party, it is unclear why N.C. R. Civ. P. 63 

does not afford relief to an aggrieved party under these circumstances. “This Court 

has interpreted the language of Rule 63 to statutorily authorize a substitute judge to 

reconsider an order entered by a judge who has since retired.” Springs v. City of 

Charlotte, 222 N.C. App. 132, 135, 730 S.E.2d 803, 805 (2012) (citations omitted). 

Additionally, fifteen days passed from entry of the trial court’s Order and Judge Cole’s 

retirement. For more than two weeks, defendants did not seek reconsideration of 

that Order under N.C. R. Civ. P. 54(b). After Judge Cole had retired, defendants did 

not seek reconsideration by another trial judge pursuant to N.C. R. Civ. P. 63. 

Regardless, it is unnecessary to determine whether the trial court’s Order is 

appealable as a matter of right pursuant to §§ 1-277(a) and 7A-27(b)(3)(a), and we 

make no such holding here, since we elect to assert jurisdiction over this matter on 

other grounds. See Hill v. StubHub, Inc., 219 N.C. App. 227, 232, 727 S.E.2d 550, 

554 (2012).

¶ 15 Defendants also filed a petition for writ of certiorari pursuant to N.C.R. App. 

P. 21 asking this Court to permit review in the event we determine that the trial 

court’s Order is not immediately appealable. This Court may issue a writ of certiorari
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

in “appropriate circumstances” to permit review of a trial court’s order “when no right 

of appeal from an interlocutory order exists.” N.C.R. App. P. 21(a). For the writ to 

issue, the petitioner has the burden of showing “merit or that error was probably 

committed below.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) 

(citation omitted). Defendants argue there are three reasons the writ should issue: 

(1) the trial court’s denial of their Motions to Dismiss presents a pure question of law 

that is fully developed for this Court’s review; (2) the trial court’s failure to apply the 

three-year statute of limitations in § 1-17(c) was clearly erroneous; and (3) they have 

no avenue for seeking reconsideration in the trial division. 

¶ 16 It is true that the mere fact that an interlocutory appeal could resolve the 

litigation is not enough to justify a grant of certiorari. See Newcomb v. Cnty. of 

Carteret, 207 N.C. App. 527, 553, 701 S.E.2d 325, 344 (2010). However, when 

interlocutory review of a dispositive question of law would be more efficient than 

deferring the issue until final judgment at the trial level, review by certiorari is 

appropriate. This Court has previously granted our writ of certiorari to review purely 

legal questions in cases where we have determined that “the administration of justice 

will best be served by granting defendants’ petition.” Reid v. Cole, 187 N.C. App. 261, 

264, 652 S.E.2d 718, 720 (2007) (citation omitted); see also Lamb v. Wedgewood S. 

Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 872 (1983) (affirming this Court’s grant of 

certiorari to review the denial of a motion for summary judgment where “[t]he issue 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

is strictly a legal one and its resolution is not dependent on further factual 

development . . . [and] the issue of the applicability and interpretation of th[e] statute 

is squarely presented . . . .”); Valentine v. Solosko, 270 N.C. App. 812, 814-15, 842 

S.E.2d 621, 624 (2020) (granting certiorari to review the trial court’s denial of a 

motion to dismiss where judicial economy would be best served by reviewing the 

interlocutory order); Harco Nat’l Ins. Co. v. Grant Thornton LLP, 206 N.C. App. 687, 

691, 698 S.E.2d 719, 722 (2010) (granting certiorari to review the trial court’s denial 

of a motion for summary judgment brought on an outcome determinative choice of 

law issue).

¶ 17 In the case sub judice, defendants have demonstrated interlocutory review 

would promote the interest of public policy by preventing unnecessary delay in the 

administration of justice. Accordingly, in the exercise of our discretion, we issue our 

writ of certiorari and review defendants’ appeal on the merits.

III. Statute of Limitations

¶ 18 A trial court’s interpretation of a statute of limitations is an issue of law that 

is reviewed de novo on appeal. Goetz v. N.C. Dep’t of Health & Human Servs., 203 

N.C. App. 421, 425, 692 S.E.2d 395, 398 (2010).

¶ 19 The parties dispute whether subsection (b) or subsection (c) of § 1-17 applies to 

this medical malpractice action filed by a minor. Plaintiff contends subsection (b) 

controls and argues his claim is not time-barred because he filed suit prior to turning 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

nineteen years of age. Plaintiff further contends subsection (c) only applies to minors 

under the age of ten years old.

¶ 20 Defendants assert the statute of limitations as a complete bar to plaintiff’s 

claim. Defendants argue the plain language of subsection (c) provides a three-year 

limitations period for accrual of a medical malpractice claim for a minor over the age 

of ten. We conclude that § 1-17(c) controls, and plaintiff’s suit is untimely. 

¶ 21 Section 1-17 has three relevant subsections. Subsection (a) is the general

tolling provision, which allows a person who is under a disability at the time the cause 

of action accrued to file suit within three years after the disability is removed. A 

person under the age of 18 years is under a disability for the purpose of this section. 

§ 1-17(a)(1).

¶ 22 Subsection (b) applies to professional malpractice actions if the plaintiff is a 

minor. The text of § 1-17(b), provided in full:

Notwithstanding the provisions of subsection (a) of this 

section, and except as otherwise provided in subsection (c)

of this section, an action on behalf of a minor for 

malpractice arising out of the performance of or failure to 

perform professional services shall be commenced within 

the limitations of time specified in G.S. 1-15(c), except that 

if those time limitations expire before the minor attains the 

full age of 19 years, the action may be brought before the 

minor attains the full age of 19 years.

§ 1-17(b) (emphasis added).

¶ 23 Subsection (c) is narrower and apples to medical malpractice actions. The 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

plain language of § 1-17(c) provides, in pertinent part:

Notwithstanding the provisions of subsection (a) and (b) of 

this section, an action on behalf of a minor for injuries 

alleged to have resulted from malpractice arising out of a 

health care provider’s performance of or failure to perform 

professional services shall be commenced within the 

limitations of time specified in G.S. 1-15(c), except as 

follows:

(1) If the time limitations specified in G.S. 1-15(c) 

expire before the minor attains the full age of 10 

years, the action may be brought any time before 

the minor attains the full age of 10 years.

. . . .

§ 1-17(c)(1) (emphasis added).1 Under subsection (c), a plaintiff who is older than age 

seven when his medical malpractice cause of action accrued does not receive any 

extension to the statute of limitations.

¶ 24 “The cardinal principle of statutory construction is that the intent of the 

legislature is controlling.” Sutton v. Aetna Cas. & Sur. Co., 325 N.C. 259, 265, 382 

S.E.2d 759, 763 (1989) (quotation marks and citation omitted). 

Just as a more specific statute will prevail over a general 

one, a specific provision of a statute ordinarily will prevail 

over a more general provision in that same statute. 

Moreover, just as it “is true a fortiori” that a specific statute 

prevails over a general one “when the special act is later in 

point of time,” the later addition of a specific provision to a 

pre-existing more general statute indicates the General 

Assembly’s most recent intent.

 

1 Subsections (c)(2) and (c)(3) are omitted as they are not applicable in this case.
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180, 187, 

775 S.E.2d 651, 656 (2015) (internal citations omitted).

¶ 25 In King v. Albemarle Hosp. Auth., our Supreme Court was tasked with 

interpreting and applying § 1-17(b), prior to the addition of subsection (c). 370 N.C. 

467, 470-71, 809 S.E.2d 847, 849 (2018). The Court observed that, “Section 1-17(b) . 

. . reduces the standard three-year statute of limitations, after a plaintiff reaches the 

age of majority, to one year by requiring a filing before the age of nineteen.” Id. at 

471, 809 S.E.2d at 850. The Court elaborated upon the General Assembly’s 

amendment to this section in 2011, which “reduce[d] the minor’s age from nineteen 

to ten years . . . thus further narrowing the time period for a minor to pursue a medical 

malpractice claim.” Id. at 471 n.2, 809 S.E.2d at 850 n.2 (emphasis added). This 

specific footnote on the application of § 1-17(c) was not necessary to the decision and 

is therefore nonbinding dicta. Nonetheless, this commentary by our Supreme Court 

is a relevant guideline for our instant task of interpreting the application of 

subsection (c) to medical malpractice cases brought by a minor.

¶ 26 Subsection (c) is a narrower and later addition to the statute. It applies to a 

subset of claims to which § 1-17(b) also applies, specifically medical malpractice as 

opposed to a more general professional malpractice. It provides that, despite the 

provisions in subsections (a) and (b), in a medical malpractice action on behalf of a 

minor, the usual § 1-15(c) statute of limitations applies. Except, if the statute of 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

limitations expires before the minor turns ten years old, then it is extended until the 

minor’s tenth birthday. Under § 1-15(c), the statute of limitations for a medical 

malpractice action is three years (plus an additional year under the latent discovery 

rule). § 1-15(c).

¶ 27 Subsection 1-17(c) controls the applicable statute of limitations in this case. 

Plaintiff was over the age of ten at the time of accrual of his claim. Thus, the threeyear statute of limitations that ordinarily governs medical malpractice actions 

applies. Plaintiff’s lawsuit is untimely because his medical malpractice action 

accrued when he was thirteen years old, and he filed suit five years later. 

IV. As-Applied Constitutional Challenge 

¶ 28 In the alternative, plaintiff raises an as-applied constitutional challenge to § 

1-17(c). He argues § 1-17(c), as-applied, violates the Equal Protection Clause of both 

the United States and North Carolina Constitutions because it does not pass strict 

scrutiny review. 

¶ 29 Assuming, without deciding, that plaintiff’s constitutional challenge to § 1-

17(c) was properly before the trial court and preserved for appellate review, his 

argument lacks merit.

¶ 30 “Strict scrutiny applies only when a regulation classifies persons on the basis 

of certain suspect characteristics or infringes the ability of some persons to exercise 

a fundamental right.” DOT v. Rowe, 353 N.C. 671, 676, 549 S.E.2d 203, 208 (2001) 
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

(citation omitted) (emphasis added). Plaintiff asserts subsection 1-17(c) runs counter 

to the “fundamental” right provided by Article I, Section 18 of the North Carolina 

Constitution. That article provides that “All courts shall be open; every person for an 

injury done him in his lands, goods, person, or reputation shall have remedy by due 

course of law; and right and justice shall be administered without favor, denial, or 

delay.” N.C. Const. art. I, § 18.

¶ 31 Plaintiff contends subsection (c) creates a separate class of medicalmalpractice plaintiffs over the age of ten but less than fifteen years who—unless 

appointed a guardian ad litem, adjudicated abused or neglected juveniles, or placed 

in the custody of the State—are subject to a three-year statute of limitations and thus 

will always be barred from bringing their claims upon reaching the age of majority.

¶ 32 However, plaintiff acknowledges § 1-17(c) is a statute of limitation; it does not 

bar his suit. “Statutes of limitation represent a public policy about the privilege to 

litigate. Their shelter has never been regarded as what now is called a ‘fundamental’ 

right or what used to be called a ‘natural’ right of the individual.” G. D. Searle & Co. 

v. Cohn, 455 U.S. 404, 408, 71 L. Ed. 2d 250, 256 (1982) (purgandum). “Persons with 

malpractice claims are not a suspect class and a classification so as to shorten the 

statute of limitations as to them does not affect a fundamental interest. This 

classification is not inherently suspect.” Hohn v. Slate, 48 N.C. App. 624, 626, 269 

S.E.2d 307, 308 (1980) (citation omitted).
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

¶ 33 Thus, statutes of limitation do not affect a fundamental right and are not 

subject to strict scrutiny analysis. Intermediate scrutiny attaches to other 

classifications, including gender and illegitimacy. Rowe, 353 N.C. at 675, 549 S.E.2d 

at 207. All other classifications, including age-based discrimination, receive rationalbasis scrutiny. Id. Under rational-basis review, “the party challenging the regulation 

must show that it bears no rational relationship to any legitimate government 

interest.” Id.

¶ 34 In Hohn, this Court heard a similar equal protection challenge to an earlier 

version of § 1-17, wherein the plaintiff argued § 1-17(b) “create[d] an arbitrary class 

and there is no rational basis for this distinction.” 48 N.C. App. at 626, 269 S.E.2d at 

308. We flatly rejected that argument. Id. 

¶ 35 In this case, plaintiff offers no argument and cites no authority to demonstrate

that § 1-17(c) does not pass rational-basis review. Accordingly, his as-applied 

constitutional challenge is without merit.

V. Conclusion

¶ 36 For the foregoing reasons, the trial court erred by denying defendants’ Motions 

to Dismiss the Complaint as time-barred under § 1-17(c). We reverse.

REVERSED.

Judge WOOD concurs.
MORRIS V. RODEBERG

2022-NCCOA-555

Opinion of the Court

Judge HAMPSON dissents by separate opinion.
No. COA21-378 –Morris v. Rodeberg

HAMPSON, Judge, dissenting.

¶ 37 At the outset, I completely agree with the majority that this appeal is 

interlocutory and does not impact any substantial right of Defendants that would be 

lost absent immediate appeal. I would, however, also deny the Petition for Writ of 

Certiorari in the exercise of judicial restraint; thereby allowing the litigation to 

proceed apace and obviating the need for this Court to wade into a question of first 

impression involving novel statutory interpretation and to reach—in the first 

instance—a constitutional question we might otherwise judiciously avoid at this 

stage or, potentially, altogether in this litigation. All the trial court did here was 

deny Defendants’ pre-answer Motions to Dismiss. The trial court’s Order does not 

finally rule on the application of the Statute of Limitations nor does it finally rule on 

the constitutionality of Section 1–17(c) as applied to Plaintiff in this case. 

Nevertheless, the majority of this panel voted in favor of allowing the Petition, and 

reaches the merits of this case. On those merits, I respectfully dissent from the 

Opinion of the Court.

I.

¶ 38 The majority’s thoughtful and concise statutory analysis here focuses narrowly 

on the language of N.C. Gen. Stat. § 1–17(c). However, in a manner consistent with 

our prior precedent, the proper approach is to read Section 1–17(c) in pari materia 

with Section 1–15(c) and then, in turn, Sections 1–17(a) and (b). Cf. Osborne by 

Williams v. Annie Penn Mem’l Hosp., Inc., 95 N.C. App. 96, 101, 381 S.E.2d 794, 797 
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

(1989) (“In the case at bar, we are called upon to interpret the language of G.S. 1–

17(b), and to determine its applicability to the statute of limitations covering 

malpractice actions as set forth in G.S. 1–15(c). The very language of G.S. 1–17(b) 

requires that these two statutes be construed in pari materia.”).

¶ 39 Indeed, as in Osborne, the very language of N.C. Gen. Stat. § 1–17(c) requires 

these statutes to be read together: 

Notwithstanding the provisions of subsection (a) and (b) of this 

section, an action on behalf of a minor for injuries alleged to have 

resulted from malpractice arising out of a health care provider’s 

performance of or failure to perform professional services shall be 

commenced within the limitations of time specified in G.S. 1–15(c), 

except as follows:

(1) If the time limitations specified in G.S. 1–15(c) expire 

before the minor attains the full age of 10 years, the action may 

be brought any time before the minor attains the full age of 10 

years.

(2) If the time limitations in G.S. 1–15(c) have expired and 

before a minor reaches the full age of 18 years a court has entered 

judgment or consent order under the provisions of Chapter 7B of 

the General Statutes finding that said minor is an abused or 

neglected juvenile as defined in G.S. 7B–101, the medical 

malpractice action shall be commenced within three years from 

the date of such judgment or consent order, or before the minor 

attains the full age of 10 years, whichever is later.

(3) If the time limitations in G.S. 1–15(c) have expired and a 

minor is in legal custody of the State, a county, or an approved 

child placing agency as defined in G.S. 131D–10.2, the medical 

malpractice action shall be commenced within one year after the 

minor is no longer in such legal custody, or before the minor 

attains the full age of 10 years, whichever is later.
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

N.C. Gen. Stat. § 1–17(c) (2021) (emphasis added).

¶ 40 By its own plain terms, Section 1-15(c) provides:

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. 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: Provided further, that where damages are sought by 

reason of a foreign object, which has no therapeutic or diagnostic 

purpose or effect, having been left in the body, a person seeking 

damages for malpractice may commence an action therefor within 

one year after discovery thereof as hereinabove provided, but in 

no event may the action be commenced more than 10 years from 

the last act of the defendant giving rise to the cause of action.

N.C. Gen. Stat. § 1–15(c) (2021) (emphasis added). If Section 1–15(c) is to be faithfully 

applied, it must be applied as a whole—not merely in piecemeal—in order to 

effectuate the intent of the General Assembly. As such, any and every application of 

Section 1–15(c) by its very terms requires a determination of whether another 

statutory exception applies.
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

¶ 41 Section 1–17 is, of course, a statutory exception to Section 1–15(c). See N.C. 

Gen. Stat. § 1–17 (2021). King v. Albemarle Hosp. Auth., 370 N.C. 467, 470, 809 

S.E.2d 847, 849 (2018) (“Section 1–17 tolls certain statutes of limitation periods while 

a plaintiff is under a legal disability, such as minority, that impairs her ability to 

bring a claim in a timely fashion.”). The King Court examined the interplay of these 

statutes as applicable to that case.

¶ 42 “[U]nder subsection 1–17(a), a minor plaintiff who continues under the 

disability of minority, upon reaching the age of eighteen, has a three-year statute of 

limitations to bring a claim based on a general tort.” Id. at 471, 809 S.E.2d at 849-50 

(citing N.C. Gen. Stat. § 1–17(a)(1)). “Whereas the tolling provision of subsection (a) 

focuses on general torts, the tolling provision of subsection (b) specifically addresses 

professional negligence claims, including medical malpractice. As with general torts, 

when a medical malpractice claim accrues while a plaintiff is a minor, N.C.G.S. § 1–

17(b) tolls the standard three-year statute of limitations provided by N.C.G.S. § 1–

15(c).” Id. at 471, 809 S.E.2d at 850 (citation omitted).

¶ 43 “Section 1–17(b), however, reduces the standard three-year statute of

limitations, after a plaintiff reaches the age of majority, to one year by requiring a 

filing before the age of nineteen.” Id. “Thus, a minor plaintiff who continues under 

that status until age eighteen has one year to file her claim.” Id. The Court 

explained: “The language of ‘Notwithstanding the provisions of subsection (a)’ refers 
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

to this reduced time period to bring an action. Like subsection (a), subsection (b) still 

allows the minor to reach adulthood before requiring her to pursue her medical 

malpractice claim, assuming her disability is otherwise uninterrupted.” Id. at 471–

72, 809 S.E.2d at 850 (citations omitted).

¶ 44 In this case, it then follows that Section 1–17(c) is itself an exception to the 

general rule applicable to minors injured by professional negligence set forth in 

Section 1–17(b). Indeed, Section 1–17(b), as amended, makes this express. N.C. Gen. 

Stat. § 1–17(b) (“Notwithstanding the provisions of subsection (a) of this section, and 

except as otherwise provided in subsection (c) of this section . . .” (emphasis 

added)). As such, Section 1–17(b) remains generally applicable unless one of the 

exceptions under Section 1–17(c) applies. As in Section 1–17(b), the language in 

Section 1–17(c) of “Notwithstanding the provisions of subsection (a) and (b) of this 

section” references the reduced time period to bring an action in the three instances 

to which subsection (c) is applicable.

¶ 45 Relevant to this case, is the first instance in which 1–17(c) applies: 

an action on behalf of a minor for injuries alleged to have resulted 

from malpractice arising out of a health care provider’s 

performance of or failure to perform professional services shall be 

commenced within the limitations of time specified in G.S. 1–

15(c), except as follows:

(1) If the time limitations specified in G.S. 1–15(c) expire before 

the minor attains the full age of 10 years, the action may be 

brought any time before the minor attains the full age of 10 years.
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

N.C. Gen. Stat. § 1–17(c)(1). By its terms, and using language similar to Section 1–

17(b), Section 1–17(c)(1) provides that (A) in medical malpractice cases involving a 

minor Section 1–15(c) remains generally applicable, except when (B) the general 

statute of limitations under Section 1–15(c) would begin to run before the minor 

attains the age of seven, in which case the expiration of the statute of limitations is 

delayed until the minor attains the age of ten.

¶ 46 Thus, Section 1–17(c)(1) targets only those very young children who are injured 

by alleged medical negligence requiring them to bring suit by age ten. Other minor 

plaintiffs remain governed by the terms of Section 1–15(c). With respect to those 

other minor plaintiffs not governed by 1–17(c)(1), Section 1–15(c), in general provides, 

for a three-year statute of limitations running from the accrual of the claim “Except 

where otherwise provided by statute . . ..” Section 1–17(b) remains such a statutory 

exception. Reading Sections 1–15(c) and 1–17(b) and (c) in pari materia—as we 

must—if the narrow statutory exceptions found in 1–17(c) to Section 1–15(c) do not 

apply to a minor plaintiff, then Section 1-17(b) applies where the statute of 

limitations would otherwise expire and provides “a minor plaintiff who continues 

under that status until age eighteen has one year to file her claim.” King, 370 N.C. 

at 471, 809 S.E.2d at 850. Thus, read together, these statutes operate to provide a 

minor injured by alleged medical negligence until the age of nineteen to bring suit, 
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

unless the action accrues before the minor turns seven, in which case, the minor has 

until age ten to bring suit.

¶ 47 This analysis is consistent with the purpose of statutes of limitation and the 

interplay with the tolling provisions of Section 1–17 articulated by our Supreme 

Court. “The purpose of a statute of limitations is to afford security against stale 

demands, not to deprive anyone of his just rights by lapse of time.” King, 370 N.C. at 

470, 809 S.E.2d at 849 (citations omitted). However: 

[b]alanced against the disadvantage of stale claims as protected 

by the statute of limitations is the problem that individuals under 

certain disabilities are unable to appreciate the nature of 

potential legal claims and take the appropriate action. Section 1–

17 tolls certain statutes of limitation periods while a plaintiff is 

under a legal disability, such as minority, that impairs her ability 

to bring a claim in a timely fashion.

Id. 

¶ 48 Reading Section 1–17(c)(1) as depriving child victims—without the aid of a 

Guardian ad litem—of alleged medical negligence of any tolling provision beyond the 

age of ten for filing a claim for damages personal to them results in untenable result 

of forcing minors to have to bring lawsuits when they remain legally “unable to 

appreciate the nature of potential legal claims” and unable to “take the appropriate 

action” impairing their ability to bring a timely claim. See id. On the other hand, 

reading Section 1–17(c)(1) in conjunction with 1–17(b) preserves the statutory 

protections of minors by tolling the statute of limitations but carves out a limited 
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

exception for claims involving alleged malpractice when a child is very young. It could 

be supposed that this would balance the need to preserve the rights of minors against 

forcing medical professionals to defend against stale claims. For example, prior to 

Section 1–17(c), an infant injured at birth would arguably have had almost twenty 

years to bring a lawsuit for personal claims arising from alleged medical negligence. 

One can imagine the difficulty of defending such a claim after the passage of so many 

years, “for ‘[w]ith the passage of time, memories fade or fail altogether, witnesses die 

or move away, [and] evidence is lost or destroyed.” King, 370 N.C. at 470, 809 S.E.2d 

at 849. Such concerns are lessened when the minor is thirteen, fourteen, or fifteen. 

As such, a common-sense plain reading of these statutes reflects a legislative intent 

to preserve the tolling provisions for minors but to limit the tolling for claims 

occurring when the minor is very young to balance against stale claims and loss of 

evidence prejudicing medical defendants.2

¶ 49 Applying this proper interpretation of the statutes to the facts of this case is a 

 

2 Although not directly at issue in this case, this same interpretation applies to the other 

two instances found in Section 1–17(c)(2) and (3). Notably, unlike subsection (c)(1) both of 

these subsections apply when the “time of limitations have expired”. Subsection (c)(2) 

operates to extend the tolling provisions for up to three years after entry of an abuse or 

neglect adjudication even if the statute of limitations has otherwise expired. Subsection 

(c)(3) extends the tolling provisions while a minor is in custody of the State, County DSS, or 

other approved child placement agency and provides an additional year to file suit after 

such custody is relinquished. By its terms, subsection (c)(3) would also seem to require a 

minor injured by medical malpractice to file suit at the very latest by the time they reach 

19, consistent with Section 1–17(b). 
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

simple exercise. Defendants contend this action accrued when Plaintiff was thirteen 

years old. On its face, because the statute of limitations did not expire before Plaintiff 

turned ten, Section 1–17(c)(1) does not apply. Instead, Section 1–15(c) read in pari 

materia with Section 1–17(b) applies to Plaintiff’s professional malpractice claim. As 

such, Plaintiff was required to bring this lawsuit before reaching age nineteen. The 

Complaint in this case alleges Plaintiff brought this action prior to attaining the age 

of nineteen. Thus, Plaintiff’s Complaint on its face does not reflect the statute of 

limitations had expired creating a bar to Plaintiff’s claim. Therefore, the Complaint 

states a claim upon which relief might be granted. Consequently, the trial court did 

not err in denying Defendants’ Motions to Dismiss. Accordingly, the trial court’s 

Order should be affirmed.

II.

¶ 50 Even if the interpretation and application of Section 1–17(b) and (c) in pari 

materia with Section 1–15(c) set forth in Part I of this dissent is not correct and the 

majority’s interpretation holds, the correct result is still to affirm the trial court’s 

interlocutory Order denying Defendants’ Motions to Dismiss. This is so because 

Plaintiff has raised, in the alternative, the colorable argument if Section 1–17(c) did 

operate to require Plaintiff to bring suit as a sixteen year old, while still under a legal 

disability and legally unable to do so, that as applied to Plaintiff, such an application 

of the statute would violate his federal and state constitutional right to equal 
MORRIS V. RODEBERG

2022-NCCOA-555

HAMPSON, J., dissenting

protection of the laws including by depriving him of the fundamental right under the 

North Carolina Constitution that: “All courts shall be open; every person for an injury 

done him in his lands, goods, person, or reputation shall have remedy by due course 

of law; and right and justice shall be administered without favor, denial, or delay.” 

N.C. Const. Art. I, Sec. 18. 

¶ 51 Again, the trial court’s Order is not a final determination of whether Section 

1–17(c) is unconstitutional as applied to Plaintiff. It merely allowed the litigation to 

proceed. This litigation would include permitting the parties to develop the factual 

and legal bases supporting or opposing Plaintiff’s as-applied challenge to the extent 

it even needed to be reached. At this preliminary 12(b)(6) stage, reaching the merits 

of Plaintiff’s as-applied challenge prior to the development of the facts applicable to 

Plaintiff’s claim is inappropriate. Indeed, in the absence of those facts, the majority 

embarks on what is effectively a facial constitutional analysis without any analysis 

of how the statute applies to Plaintiff. This facial analysis is also improper in the 

absence of a facial challenge to the statute first considered by a three-judge panel of 

the Superior Court. The trial court, here, properly denied Defendants’ Motions to 

Dismiss and should be affirmed.