¶1dissenting.
¶2I agree that plaintiff has stated a claim for wrongful death based on medical malpractice; however, because I believe North Carolina General Statutes sections 1-53(4), governing wrongful death actions, and l-15(c), governing professional malpractice claims, must be read in conjunction with one another, I respectfully dissent.
¶3In a wrongful death action based on acts of medical malpractice, this Court has already held that a plaintiff is required to bring her claim within two years of the decedent’s death pursuant to section 1-53(4) and explicitly rejected the argument that section l-15(c), which contains discovery provisions not available under section 1-53(4), controlled the analysis in that case. King v. Cape Fear Mem. Hosp., 96 N.C. App. 338, 341, 385 S.E.2d 812, 814 (1989).
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; the cause of action shall not accrue until the date of death. Provided that, whenever the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. l-15(c) or 1-52(16), no action for his death may be brought.3
¶4N.C.G.S. § 1-53(4). Section 1-53(4), including its proviso, was interpreted in Dunn v. Pacific Employers Ins. Co., 332 N.C. 129, 418 S.E.2d 645. While the Dunncase did not involve a wrongful death action based on malpractice, it did include an important, and binding, interpretation of section 1-53(4) that is relevant to a determination of the case sub judice.
¶5In interpreting the proviso of section 1-53(4) barring a wrongful death claim when “the decedent would have been barred, had he lived, . . . because of the provisions of G.S. 1-15(c) or 1-52(16),” the DunnCourt held that this language “merely provides a limitations defense to a wrongful death action when the claim for injuries caused by the underlying wrong had become time-barred during the decedent’s life.” Id. at 134, 418 S.E.2d at 648. Thus, if “the decedent [was] not time-barred [under section 1-15(c) or 1-52(16)] at [her] death,” as opposed to the time the claim was actually filed, a plaintiff will be allowed to bring a wrongful death action, including one based on medical malpractice, within two years from the date of death. Id
¶6In this case, the alleged act of malpractice occurred in February 1997. Mrs. Udzinski was diagnosed with lung cancer in February 1998 and died in April 1999. Thus, at the time of her death, neither the three-year statute of limitations nor the four-year statute of repose under section l-15(c) had expired. See N.C.G.S. § 1-15(c) (2001). Had Mrs. Udzinski lived, she would have had until February 2000 under the three-year statute of limitations and until February 2001 under the statute of repose of section l-15(c) to file her claim. Accordingly, Mrs. Udzinski would not have been time-barred under section l-15(c) at the time of her death from filing a claim for the bodily harm caused by the alleged mis-diagnosis, and her estate therefore had two years under section 1-53(4) from the time of death, until April 2001, to bring this action. Since this time period had not yet elapsed when the trial court granted plaintiff an extension of the statute of limitations in March 2001, the trial court’s order dismissing plaintiff’s claim should be reversed.
¶7. Judge Elmore’s opinion distinguishes King based on the contention that the Court separated the limitations issue of the wrongful death claim from those of the underlying claims of medical malpractice, intentional infliction of emotional distress, and loss of consortium. In King, however: (1) the plaintiff raised a personal cause of action for intentional infliction of mental distress, not one brought pursuant to the wrongful death claim, thus requiring a separate analysis under N.C. Gen. Stat. § 1-52(5); (2) this Court held that the plaintiffs underlying claim for loss of consortium failed because the wrongful death action was barred under section 1-53(4); and (3) this *283Court did not analyze the medical malpractice claim separately from the wrongful death statute of limitations. King, 96 N.C. App. at 341-42, 386 S.E.2d at 814-16.
¶8. The concurring opinion contends that the absence of an exception in section l-15(c) for the accrual of a wrongful death claim supports the legislative intent “that a claim for wrongful death now comes [solely] under the purview of l-15(c) when that death arises from professional malpractice.” I, instead, believe such an exception does exist and was actually added by the legislature the same year section 1-16 was redrafted. This exception is found in the form of the proviso contained in section 1-53(4), added in 1979, see Dunn v. Pacific Employers Ins. Co., 332 N.C. 129, 132, 418 S.E.2d 645, 646 (1992), barring any action for the decedent’s death if “the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. 1-15(c) or 1-52(16),” N.C.G.S. § 1-53(4) (2001), and evinces a clear legislative intent to consider both 1-53(4) and 1-15(c) together.
¶9. The concurring opinion attempts to distinguish Dunndue to the fact that the Supreme Court stated section l-15(c) had no application in that case because the claims were governed by section 1-52(16). The Court’s statement, however, pertains to the application of the facts and time lines involved in Dunn, not its interpretation of *284how section 1-53(4) and the sections mentioned in the proviso, sections l-15(c) and 1-52(16), are to function in relation to one another. The concurring opinion also points out that King only dealt with the statute of limitations and not the statute of repose. Because the analysis in this dissent is based on a joint reading of King and Dunn, such a distinction is of no avail. Furthermore, the proviso in section 1-53(4) provides a blanket bar on wrongful death actions if “the decedent would have been barred,” by either the statute of limitations or repose, “had he lived, from bringing an action for bodily harm because of the provisions of G.S. 1-15(c) or 1-52(16).” N.C.G.S. § 1-53(4).