Bogue v. Gillis
| Decision Date | 22 April 2022 |
| Docket Number | S-21-610. |
| Citation | 311 Neb. 445,973 N.W.2d 338 |
| Parties | Lori J. BOGUE and Robert F. Bogue, appellants, v. Christopher C. GILLIS, appellee. |
| Court | Nebraska Supreme Court |
Robert T. Cannella and Gerald L. Friedrichsen, Omaha, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellants.
David A. Blagg and Brien M. Welch, Omaha, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Papik, J. Lori J. Bogue and Robert F. Bogue filed a lawsuit against Christopher C. Gillis, alleging that as a result of Gillis’ negligence during a surgical procedure, Lori suffered injuries. The Bogues now seek review of the district court's entry of summary judgment in favor of Gillis on statute of limitations grounds. The timeliness of the Bogues’ lawsuit turns on whether the 2-year statute of limitations started to run on the date of the surgery or when Gillis’ subsequent treatment of Lori concluded approximately 1 year later. We find the district court did not err in concluding that the statute of limitations started to run on the date of the surgery and therefore affirm its entry of summary judgment in favor of Gillis.
On January 17, 2017, Gillis performed a lumbar spine fusion on Lori in Omaha, Nebraska. Nearly 3 years later, on January 3, 2020, the Bogues filed a lawsuit against Gillis and other defendants. In the lawsuit, the Bogues alleged that during the surgery, Gillis negligently damaged Lori's ureter and that, consequently, one of her kidneys stopped functioning and had to be removed. The Bogues claimed that as a result of Gillis’ negligence, Lori suffered physical pain and mental distress and Robert suffered a loss of consortium.
In an amended complaint, the Bogues later alleged that Gillis continued to treat Lori through at least January 18, 2018, when he determined that Lori had a psoas abscess that was in close proximity with "hardware" that was implanted as part of the spinal fusion procedure. That amended complaint alleged that because Gillis continued to treat Lori through January 2018, their initial complaint was timely filed.
Gillis alleged in his answer that the Bogues’ malpractice claim against him was barred by the statute of limitations set forth in the Nebraska Hospital-Medical Liability Act. See Neb. Rev. Stat. § 44-2828 (Reissue 2021).
Gillis later filed a motion for summary judgment on statute of limitations grounds. At the summary judgment hearing, the district court received depositions of both Lori and Robert, Lori's medical records, and an affidavit from an expert witness retained by the Bogues.
Lori and Robert testified in their depositions that Lori began to notice a collection of fluid in her abdomen shortly after arriving home from the surgery. Lori's medical records showed that in the year following the surgery, she continued to have appointments with Gillis in which the fluid collection was addressed. A note describing an appointment with Gillis on November 9, 2017, stated that "[t]here appears to be a fluid collection in the left psoas and into the abdomen" and went on to state that "we will have to obtain the radiology report to further understand what this may entail." Another note describing an appointment with Gillis on January 19, 2018, observed that Lori presented "with [a] history of fluid collection" after her spine surgery "and then subsequent development of a psoas abscess which she continues to undergo drainage and antibiotic therapy for." The notes indicated that Gillis reviewed an MRI and observed that the fluid collection had made contact "with the interbody cages." He recommended another MRI to look for evidence of "hardware infection."
Lori and Robert testified that in February 2018, they learned that Lori had suffered an injury to her ureter. At that time, both Lori and Robert believed that Gillis had negligently injured Lori during the surgery in January 2017. Lori's left kidney was removed in March 2018.
The Bogues’ expert opined by affidavit that Gillis had breached the standard of care during the surgery in various respects and that if Gillis had complied with the standard of care, Lori's ureter would not have been injured and she would not have lost her kidney. The Bogues’ expert also opined that Gillis’ treatment of Lori after the surgery "was related to the surgical negligence."
The district court granted Gillis’ motion for summary judgment. It concluded that whether the Bogues’ claim was governed by the general professional negligence statute of limitations set forth in Neb. Rev. Stat. § 25-222 (Reissue 2016) or the statute of limitations set forth in the Nebraska Hospital-Medical Liability Act, see § 44-2828, Gillis was entitled to summary judgment on statute of limitations grounds.
The district court rejected the Bogues’ argument that under the continuous treatment doctrine, the statute of limitations did not begin to run until the conclusion of Gillis’ treatment of Lori in January 2018. With respect to the continuous treatment doctrine, the district court quoted the following language from our opinion in Frezell v. Iwersen , 231 Neb. 365, 369, 436 N.W.2d 194, 198 (1989) : The district court observed that there was no evidence that Gillis misdiagnosed Lori or was negligent after the January 2017 surgery.
Because the district court concluded that under the undisputed facts in the record, the statute of limitations began to run as of the January 2017 surgery, it determined that the Bogues’ January 2020 complaint was not timely filed and that Gillis was entitled to summary judgment.
The Bogues perfected an appeal of the district court's ruling and filed a petition to bypass the Nebraska Court of Appeals. We granted the petition to bypass.
All of the Bogues’ claims against defendants other than Gillis either were dismissed by operation of law due to the Bogues’ failure to serve, were voluntarily dismissed by the Bogues, or were also resolved by summary judgment. At oral argument, counsel for the Bogues confirmed that they are appealing only the district court's entry of summary judgment in favor of Gillis.
The Bogues assign several errors, but they can effectively be restated as a single contention that the district court erred by finding that their malpractice claim was barred by the statute of limitations.
An appellate court affirms a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Lassalle v. State , 307 Neb. 221, 948 N.W.2d 725 (2020). An appellate court reviews the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. Id.
Statutory interpretation presents a question of law that an appellate court resolves independently of the trial court. Seivert v. Alli , 309 Neb. 246, 959 N.W.2d 777 (2021).
The sole issue presented in this appeal is whether the district court correctly granted summary judgment to Gillis on statute of limitations grounds. We first address which statute of limitations applies.
Gillis claims that because the Bogues alleged that he was covered by the Nebraska Hospital-Medical Liability Act, the statute of limitations set forth in § 44-2828 applies to the Bogues’ claim, rather than the general professional negligence statute of limitations set forth in § 25-222. The Bogues do not dispute that assertion, but it is ultimately of little consequence because both parties agree that those statutes of limitation are identical as they relate to this case. See Giese v. Stice , 252 Neb. 913, 919, 567 N.W.2d 156, 162 (1997) (). We will thus analyze this case under § 44-2828, but in doing so, we will also consider prior cases interpreting and applying § 25-222.
Section 44-2828 provides:
Except as provided in section 25-213, any action to recover damages based on alleged malpractice or professional negligence or upon any alleged breach of warranty in rendering or failing to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failing to render professional services providing the basis for such action, except that if the cause of action is not discovered and could not be reasonably discovered within such two-year period, the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages for malpractice or professional negligence or breach of warranty in rendering or failing to render professional services more than ten years after the date of rendering or failing to render such professional service which provides the basis for the cause of action.
Pursuant to this language, an action must be commenced within 2 years of the date the limitations period began to run unless the cause of action was not or could not reasonably be discovered within that 2-year period. See Bonness v. Armitage , 305 Neb. 747, 942 N.W.2d 238 (2020). The discovery exception is not at issue in this appeal. Instead, the question of whether the Bogues’ claim was timely filed hinges entirely on when the 2-year statute...
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