Bonness v. Armitage

Summary

The Nebraska Supreme Court affirmed dismissal of Richard K. Bonness’s medical malpractice action against Joel D. Armitage, M.D., on statute of limitations grounds. The court held that Armitage did not waive the limitations defense by conducting discovery before moving to dismiss. It further held that Bonness discovered, or reasonably should have discovered, his claims when he was diagnosed with prostate cancer in January 2015, rather than when the cancer later recurred.

Holdings

1. Armitage did not waive the statute of limitations defense by engaging in discovery before moving to dismiss the second amended complaint. A statute of limitations challenge is treated as a failure-to-state-a-claim defense that may be raised by a permitted pleading, a motion for judgment on the pleadings, or at trial, and is not waived merely because a motion to dismiss is not filed immediately.
2. Dismissal was proper because the face of the second amended complaint showed that Bonness discovered, or reasonably could have discovered, his professional negligence claims when he was diagnosed with prostate cancer in January 2015, and the action was not filed within the applicable limitations period.

Questions Presented

1. Whether Armitage waived the statute of limitations defense by failing to move immediately to dismiss the first amended complaint and instead engaging in discovery.
2. Whether the face of Bonness' second amended complaint established that his professional negligence and informed-consent claims were barred by the applicable statute of limitations.

Disposition

affirmed