Summary
The Nebraska Supreme Court affirmed summary judgment for Christopher C. Gillis in a medical malpractice action brought by Lori and Robert Bogue. The court held that the two-year statute of limitations began running on the date of the alleged negligent surgery, rejecting the plaintiffs’ argument that subsequent related treatment extended the limitations period under the continuous treatment doctrine. The court resolved conflicting Nebraska precedent by overruling the broader version of the doctrine that delayed accrual based solely on related, nonnegligent treatment.
Topics
Practice areas
Questions Presented
- Whether the two-year statute of limitations for the medical-malpractice claim began to run on the date of the alleged negligent surgery or upon completion of Gillis's subsequent related treatment.
- Whether Nebraska's continuous-treatment doctrine applies when subsequent treatment is related to the alleged negligence but is not itself alleged to be negligent.
- Whether the district court properly granted summary judgment because the January 2020 complaint was filed more than two years after the January 2017 surgery.
Holdings
- Nebraska Revised Statute § 44-2828 governs the claim under the parties' agreement, and its two-year limitations period generally begins upon the alleged act or omission providing the basis for the malpractice action, subject to the statute's specified discovery exception.
- The continuous-treatment doctrine delays commencement of the statute of limitations only when there has been a misdiagnosis followed by incorrect treatment or another continuing course of negligent treatment. It does not apply merely because treatment related to the alleged negligence continued after an isolated negligent act.
- Because the only alleged negligent act occurred during Lori Bogue's January 2017 surgery and there was no evidence of negligent treatment afterward, the statute of limitations began to run in January 2017. The Bogues' January 2020 complaint was untimely.
- The district court properly granted Gillis summary judgment on statute-of-limitations grounds.
Key quotations
“Because we find it to be the analytically sounder rule, we reaffirm those cases holding that the continuous treatment doctrine applies only when there has been a misdiagnosis upon which incorrect treatment is given or when there has been some other continuing course of negligent treatment.” (311 Neb. at 462-463)
“We disapprove of Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994), and other cases to the extent they suggest that under the continuous treatment doctrine, the statute of limitations in a medical malpractice action starts to run upon the conclusion of any treatment related to the alleged act or omission forming the basis for the cause of action, even if that subsequent treatment is not alleged to be negligent.” (311 Neb. at 463)
Factual background
On January 17, 2017, Christopher Gillis performed a lumbar spine fusion on Lori Bogue. The Bogues alleged that Gillis negligently injured Lori's ureter during the surgery, causing kidney failure and removal of her left kidney in March 2018. Gillis continued treating Lori for postoperative fluid collection and a psoas abscess through at least January 2018, but the Bogues did not allege or provide evidence that the postoperative treatment itself was negligent. They filed suit on January 3, 2020.
Procedural history
The Bogues filed a medical-malpractice action arising from Lori Bogue's January 2017 spinal-fusion surgery. The Douglas County District Court concluded that the statute of limitations began to run on the date of surgery, rejected application of the plaintiffs' expansive version of the continuous-treatment doctrine, and granted Gillis summary judgment. The Nebraska Supreme Court granted a petition to bypass and reviewed the summary judgment ruling.