Bonness v. Armitage
| Decision Date | 08 May 2020 |
| Docket Number | No. S-19-393.,S-19-393. |
| Citation | 305 Neb. 747,942 N.W.2d 238 |
| Parties | Richard K. BONNESS, appellant, v. Joel D. ARMITAGE, M.D., appellee. |
| Court | Nebraska Supreme Court |
Patrick J. Cullan and Joseph P. Cullan, of Cullan & Cullan, L.L.C., Omaha, for appellant.
David A. Blagg, Brien M. Welch, Omaha, and Kathryn J. Cheatle, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.
Heavican , C.J., Cassel , Stacy , Funke , Papik , and Freudenberg , JJ.
Richard K. Bonness appeals the district court’s dismissal of his medical malpractice action against Joel D. Armitage, M.D., on statute of limitations grounds. Bonness contends that Armitage waived the statute of limitations defense and that even if he did not, his complaint should not have been dismissed. We disagree and affirm the decision of the district court.
Commencement of Action and Initial Procedural History.
This case began on June 20, 2017, when Bonness filed his initial complaint against Armitage. The initial complaint generally alleged that Armitage had failed to timely diagnose Bonness with prostate cancer.
The attorney who filed the initial complaint on behalf of Bonness later moved to withdraw, and new counsel entered an appearance. The district court subsequently granted Bonness leave to file an amended complaint. Bonness did so in January 2018. The amended complaint contained additional factual allegations, but also generally alleged that Armitage had failed to timely diagnose Bonness with prostate cancer. Armitage filed an answer later that month in which he denied negligence and also asserted that the claims alleged were barred by the professional negligence statute of limitations.
After the filing of the first amended complaint, the parties engaged in discovery for some time. In November 2018, Bonness filed a motion for leave to file a second amended complaint. In the motion, he asserted that the proposed second amended complaint would reflect new information learned during discovery. Armitage did not object to the motion for leave to file a second amended complaint. The district court granted the motion, and Bonness filed the second amended complaint. Because the second amended complaint is the operative complaint for purposes of this appeal, we summarize its allegations in greater detail below.
Second Amended Complaint.
In the second amended complaint, Bonness alleged that he had a family history of prostate cancer and that his father had died of prostate cancer at the age of 68. Following his father’s death in 1995 until 2010, Bonness underwent "Prostate-Specific Antigen" (PSA) tests several times while he was seen by physicians other than Armitage. According to the second amended complaint, a PSA test measures the level of PSA in the bloodstream and can serve as an early indicator of prostate cancer, because the level of PSA in the blood is often elevated in men with prostate cancer. In 2007, one of those other physicians referred Bonness to a urologist because of an elevated PSA test and a hardened area on his prostate. The urologist determined that there was no cancer.
In late 2010, Armitage became Bonness’ physician. The second amended complaint alleged that "based on ... Bonness’ desire to do everything necessary to screen for prostate cancer," Bonness and Armitage "agreed to a health plan that entailed utilizing the most effective preventative cancer care for the early detection of prostate cancer." Armitage allegedly told Bonness that he would implement the plan in accordance with protocols in place at a university medical center.
Bonness alleged that during his initial visit with Armitage, Bonness informed Armitage that Bonness had a family history of prostate cancer, that he had been taking the medication commonly known as Avodart for many years, that he had undergone PSA testing earlier in the year, and that his PSA at that time was 3.0 ng/mL. Armitage noted in his records that he would perform PSA testing on Bonness on a yearly basis, but would not perform the testing that day, because Bonness had already been tested that year. Armitage also continued to prescribe Avodart for Bonness.
Bonness alleged that at the time of his first appointment with Armitage, the federal Food and Drug Administration was warning physicians that if taken for more than 6 months, Avodart decreases an individual’s PSA level by about 50 percent. According to the second amended complaint, Avodart’s effect on PSA levels requires physicians to double the value of PSA levels for purposes of testing for the presence of prostate cancer. Accordingly, Bonness alleged that his PSA test of 3.0 ng/mL in 2010 should have been interpreted as 6.0 ng/mL. Bonness also alleged that a patient with an adjusted PSA value of 6.0 ng/mL should be referred to a urologist, presumably for further testing.
Bonness alleged that he relied on Armitage’s representation that there was no need to perform additional PSA testing in 2010. Bonness further alleged that Armitage affirmatively represented to him in 2011 that PSA testing was not immediately necessary and that he relied on that representation. Bonness also alleged that in 2013, Armitage affirmatively represented to him that PSA testing was "deemed unreliable" and that it was not necessary to perform the test and that Bonness relied on those representations as well. Bonness alleged that he specifically inquired of Armitage whether PSA testing should be performed in 2010, 2011, and 2013.
Armitage later claimed that Bonness refused to undergo PSA testing in 2010, 2011, and 2013, but Bonness denied refusing and also alleged that Armitage should have known that he desired testing. He asserted that Armitage should have known he wished to be tested based on Bonness’ family history of prostate cancer, the death of his father from prostate cancer, Bonness’ concerns regarding friends who had been diagnosed with prostate cancer, his "repeated, express concerns about the risk to himself of having prostate cancer," and his "expressed willingness to do, or have done, whatever was necessary" to detect and treat prostate cancer.
Bonness alleged that in 2014, Armitage reversed course and affirmatively represented to him that PSA testing was now warranted. Bonness then underwent PSA testing. His PSA level was over 5.0 ng/mL, a level the second amended complaint characterized as "elevated." In 2015, Bonness underwent additional PSA testing and his PSA level was more than 6.0 ng/mL, a level the second amended complaint also characterized as "elevated." Bonness alleged that as a result of his elevated PSA levels, he underwent a prostate biopsy on January 9, 2015, which revealed the presence of cancer. In March 2015, Bonness then underwent a radical prostatectomy. Bonness alleged that after this procedure, he was told he was cancer free.
Bonness had additional PSA testing performed in April, May, and June 2016. Based on PSA testing performed in June 2016, Bonness was informed that his prostate cancer had recurred.
Based on these facts, Bonness alleged that Armitage was liable for negligence and for failure to obtain his informed consent to the treatment provided. With respect to his claim of negligence, Bonness alleged that the most effective preventative cancer care for prostate cancer would have included PSA testing in 2010, 2011, and 2013. He also alleged that because he was taking Avodart, his PSA test results in 2010 should have been doubled. He contended that given his PSA test results in 2010 and Bonness’ family history of prostate cancer, Armitage should have immediately referred him to a urologist. With respect to his claim of failure to obtain informed consent, he also alleged that Armitage should have provided him with information regarding the risks to Bonness of not having regular PSA tests in light of his family history of prostate cancer and the effect of Avodart on PSA test results.
Bonness alleged that it was only after the recurrence of his prostate cancer that he learned of facts that led to the discovery of his claims against Armitage.
Dismissal by District Court.
Armitage moved to dismiss the second amended complaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6). The motion to dismiss asserted that the second amended complaint failed to allege facts indicating that it was timely filed.
Following a hearing, the district court entered a written order granting the motion to dismiss. The district court found that Bonness’ claims were barred by the 2-year professional negligence statute of limitations set forth in Neb. Rev. Stat. § 25-222 (Reissue 2016). The district court concluded that Armitage’s allegedly deficient treatment would have been known to Bonness by January 2015, when his prostate cancer requiring surgical intervention was first discovered. The district court wrote that by that date, Bonness would have known that Armitage had been unable to prevent Bonness from getting prostate cancer. Based on its determination that Bonness discovered his claims in January 2015, the district court found that he did not timely file his action.
Bonness timely appealed.
Bonness assigns two errors on appeal, both concerning the district court’s dismissal of his suit on statute of limitations grounds. According to Bonness, the district court erred by dismissing the suit, (1) because Armitage waived the statute of limitations defense and (2) because Bonness did not discover his claims until his cancer recurred in June 2016.
When a question concerning the waiver of an affirmative defense involves the interpretation of rules of pleading, it is a question of law reviewed de novo. See SFI Ltd. Partnership 8 v. Carroll , 288 Neb. 698, 851 N.W.2d 82 (2014).
A challenge that a pleading is barred by the statute of limitations is a challenge that the pleading fails to allege sufficient facts to constitute a claim upon which relief can be granted. Carruth v. State , 271 Neb. 433, 712 N.W.2d 575 (2006). A...
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