Barry v. Bohi, 84-611

• Court: Supreme Court of Nebraska
• Writing for the Court: KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ., and COLWELL; CAPORALE; BOSLAUGH
• Citation: 380 N.W.2d 249,221 Neb. 651
• Parties: Patricia BARRY, Appellant, v. Daniel G. BOHI, M.D., Appellee.
• Docket Number: No. 84-611,84-611
• Decision Date: 24 January 1986

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380 N.W.2d 249 221 Neb. 651 Patricia BARRY, Appellant,
v.
Daniel G. BOHI, M.D., Appellee. No. 84-611. Supreme Court of Nebraska. Jan. 24, 1986.

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Syllabus by the Court

1. Medical Malpractice. In order to qualify for the protection of the Nebraska Hospital-Medical Liability Act, the health care provider must file with the director of the Department of Insurance proof of certain financial responsibility and pay the surcharges levied under the act.

[221 Neb. 652] 2. Causes of Action: Medical Malpractice. A cause of action arising while a patient and health care provider are subject to the Nebraska Hospital-Medical Liability Act is to be adjudicated in accordance with the provisions of the act.

3. Medical Malpractice: Limitations of Actions: Time. In medical malpractice cases a period of limitations or repose begins to run when the treatment rendered after and relating to the act or omission complained of is completed.

4. Actions: Medical Malpractice: Limitations of Actions: Evidence: Time. A medical malpractice action arises, for the purpose of determining the admissibility into evidence of a written opinion rendered by the medical review panel, upon the occurrence

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of the act or omission of which complaint is made.

5. Trial: Evidence: Appeal and Error. The general rule that if properly admitted evidence exists to establish that which improperly admitted evidence also establishes, the error in receiving the inadmissible evidence is harmless rests on the premise that the nature of the cumulative evidence is such that no prejudice results from its improper admission.

6. Trial: Medical Malpractice: Evidence: Appeal and Error. It is presumed that the improper admission into evidence of an opinion of the medical review panel rendered in accordance with the provisions of the Nebraska Hospital-Medical Liability Act results in prejudice.

Charles F. Gotch and David A. Blagg of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Robert M. Slovek and Thomas J. Shomaker of Sodoro, Daly & Sodoro, Omaha, for appellee.

KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ., and COLWELL, District Judge, Retired.

CAPORALE, Justice.

The trial court, pursuant to the jury's verdict, dismissed Patricia Barry's malpractice action against Daniel G. Bohi, a physician practicing as an obstetrician and gynecologist. She assigns as error the trial court's (1) determination as a matter of law that Dr. Bohi was a health care provider qualified under the Nebraska Hospital-Medical Liability Act, Neb.Rev.Stat. §§ 44-2801 et seq. (Reissue 1984), when her cause of action arose, and (2) consequent receipt into evidence, pursuant to the act, of the written opinion of the medical review panel that Dr. Bohi "met the applicable standard of care required under the [221 Neb. 653] circumstances." We reverse and remand for a new trial.

The act provides a method whereby health care providers, such as physicians, may limit their malpractice liability with respect to patients who have elected not to remove themselves from its operation. §§ 44-2821, 44-2824; Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977). At the relevant times, the act required that all malpractice claims of patients under the act against providers qualified under the act be reviewed prior to suit by a medical review panel. § 44-2840 (Reissue 1978); Prendergast v. Nelson, supra. (As of July 10, 1984, a claimant may waive such review. § 44-2840(4) (Reissue 1984).) The act calls upon the panel to render a written opinion as to whether the provider met or failed to meet the applicable standard of care, or whether there exists to be resolved a material question of fact bearing on the issue of the provider's liability which does not require expert opinion. § 44-2843. The act further provides that should suit follow, the written opinion of the review panel "shall be admissible as evidence." § 44-2844(2); Prendergast v. Nelson, supra.

In order to receive the protection of the act, the provider must file with the director of the Department of Insurance proof of certain financial responsibility and pay the surcharges levied under the act. §§ 44-2824, 44-2827, 44-2829 through 44-2831.

Dr. Bohi first qualified under the act on September 10, 1976, both individually and as a member of the partnership with which he then practiced. On February 14, 1978, Dr. Bohi left that partnership and became associated with a professional corporation. Thereafter, the director of the Department of Insurance continued to receive proof of Dr. Bohi's financial responsibility; however, Dr. Bohi neglected to pay the surcharges levied under the act for the period from September 10, 1978, to February 7, 1979, on and after which date everyone agrees Dr. Bohi again qualified under the act.

Mrs. Barry first consulted Dr. Bohi on May 5, 1978, concerning changes she had noticed in her right breast over a period of several years. Dr. Bohi, among other

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things, examined the breast. He felt...