Casey v. Levine

• Decision Date: 12 January 2001
• Docket Number: No. S-99-079.,S-99-079.
• Citation: 261 Neb. 1,621 N.W.2d 482
• Parties: Jacqueline CASEY, Appellant, and Richard Casey, Appellee, v. Michael A. LEVINE, M.D., et al., Appellees.
• Court: Nebraska Supreme Court

621 N.W.2d 482

261 Neb. 1

Jacqueline CASEY, Appellant, andRichard Casey, Appellee, v.Michael A. LEVINE, M.D., et al., Appellees.

No. S-99-079.

Supreme Court of Nebraska.

January 12, 2001.

Edward F. Fogarty, of Fogarty, Lund & Gross, and Karen L. Tibbs, Omaha, for appellant.

James A. Snowden and Thomas B. Wood, of Wolfe, Snowden, Hurd, Luers & Ahl, Lincoln, for appelleesMichael A. Levine, M.D., and Andrew Robertson, M.D.

Patrick W. Meyer, of Sodoro, Daly & Sodoro, Omaha, for appellee Methodist Hospital.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

This medical malpractice appeal presents the question whether the continuing treatment doctrine that tolls the statute of limitations against a physician should be extended to the alleged negligent acts of a hospital's nursing staff.We conclude in this case that in a malpractice claim against a hospital for the negligence of its nursing staff, the doctrine does not toll the statute of limitations past the date of the patient's discharge from the hospital.

Jacqueline Casey brought this medical and hospital malpractice claim against Michael A. Levine, M.D.; Andrew Robertson, M.D.; and Methodist Hospital, claiming malpractice following the delivery of her ninth child at the hospital on October 27, 1995.

We granted petitions for further review from Levine, Robertson, and the hospital.We affirm the Nebraska Court of Appeals' decision reversing the district court's grant of summary judgment in favor of Levine and Robertson.We reverse, however, the Court of Appeals' decision reversing the district court's grant of summary judgment in favor of the hospital.

BACKGROUND

On October 27, 1995, Casey prematurely delivered an infant at the hospital while under the medical care provided by Levine and Robertson.Casey was released from the hospital on October 28.She was readmitted to the hospital for complications allegedly related to that delivery on November 3 and remained in the hospital's intensive care unit for 18 days.

On November 7, 1997, Casey filed a petition alleging medical malpractice on the part of Levine, Robertson, and the hospital.The operative petition, a "corrected amended petition" which includes Richard Casey as a plaintiff, alleges that Levine and Robertson misdiagnosed and improperly treated her.She does not specifically allege that either Levine or Robertson treated her during her second admission to the hospital.

Casey alleges the following facts: In 1995, she sought the assistance of Levine and Robertson because of their expertise with problem pregnancies and because Levine had previously diagnosed her as having atypical postpartum eclampsia after the delivery of her eighth child.Preeclampsia is a potentially life-threatening complication in pregnant women associated with protein in the urine, hypertension, and edema in the face, hands, and feet.If left untreated, it can progress to eclampsia, which is characterized by coma and convulsive seizures in the pregnant woman.Casey's symptoms did not develop until after the delivery of her child.

On October 28, 1995, the day after her delivery, Casey reported to Robertson that she was experiencing swelling in her hands and face, headaches, and visual changes.Casey stated to Robertson that she believed she was experiencing the same postpartum symptoms that had accompanied her complications following the delivery of her eighth child.She alleges she asked for a diuretic, which Robertson prescribed but the nurses failed to administer, and further that the hospital staff failed to "evaluate, monitor and treat" her with ordinary and reasonable care.

Casey asked Robertson to keep her in the hospital while she was experiencing these symptoms, and Robertson said he would authorize another day.However, a hospital nurse, Eileen Eckert, informed Casey that her insurance company would not approve another day.Casey was released from the hospital on October 28, 1995.

Three nights after her release, Casey's family rushed her to the hospital's emergency room for high blood pressure and severe headaches.Casey alleges that Levine also failed to appropriately treat her condition at that time.Then, on November 3, 1995, she was admitted to the intensive care unit of the hospital, where she remained until November 20.A neurologist was not consulted until November 11, according to Casey.

Casey alleges that she developed eclampsia and suffered grand mal seizures, loss of vision, and alteration in the function of the right side of her body as a result of her untreated hypertension.

The hospital answered, generally denying the allegations.Levine and Robertson answered, generally denying the allegations and further alleging that the case was barred by the statute of limitations.

Levine and Robertson moved for summary judgment on the grounds that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law.The hospital filed a motion for summary judgment on the ground that Casey was unable to prove a prima facie case based on the pleadings, depositions, and other discovery to date.

During the summary judgment hearing, the court granted leave to the hospital to amend its answer to affirmatively assert the statute of limitations defense.Casey offered exhibit 6, which states that she had been seen at the hospital under the direction of Levine and Robertson at all times and that her hospitalization under their care ended November 20, 1995.A hospital record was attached in support of her statement showing Levine as the admitting physician and Robertson as an attending physician.The district court granted summary judgment in favor of all three defendants after finding that the continuous treatment doctrine did not apply and that, therefore, Casey's petition was filed outside of the 2 year statute of limitations for medical malpractice.

The Court of Appeals on review concluded that there were genuine issues of material fact as to whether Casey's treatment by Levine, Robertson, and the hospital continued until her second discharge on November 20, 1995.The Court of Appeals therefore reversed the district court's grant of summary judgment and remanded the cause for further proceedings.

ASSIGNMENTS OF ERROR

In petitioning for further review, Levine and Robertson assign that the Court of Appeals erred in (1) failing to determine whether Casey's subsequent treatment was related to the allegedly wrongful acts or omissions of both Levine and Robertson, as required by Healy v. Langdon,245 Neb. 1, 511 N.W.2d 498(1994), and (2) concluding that Casey's affidavit stating that she was under the care of Levine and Robertson until November 20, 1995, and the hospital record showing Levine as the admitting physician and Robertson as the attending physician were sufficient to demonstrate that Levine and Robertson actually treated Casey at any time after November 3, 1995.

The hospital assigns that the Court of Appeals erred in applying the continuing treatment doctrine to the hospital's nursing staff when Casey alleged no specific acts of negligence on the hospital's part after Casey's initial discharge from the hospital.

STANDARD OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.City State Bank v. Holstine,260 Neb. 578, 618 N.W.2d 704(2000);Baye v. Airlite Plastics Co.,260 Neb. 385, 618 N.W.2d 145(2000).

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.Prochaska v. Douglas Cty.,260 Neb. 642, 619 N.W.2d 437(2000);Morrison Enters. v. Aetna Cas. & Surety Co.,260 Neb. 634, 619 N.W.2d 432(2000).

ANALYSIS

Casey contends that the statute of limitations for her medical malpractice claims against Levine, Robertson, and the hospital were tolled until her second discharge from the hospital on November 20, 1995.

The hospital has elected not to come under the provisions of the Nebraska Hospital Medical Liability Act, Neb.Rev.Stat. §§ 44-2801 to 44-2855(Reissue 1993, Cum. Supp. 1994 & Supp.1995).The doctors alleged that Casey's petition is barred under either Neb.Rev.Stat. § 25-222(Reissue 1995) or § 44-2828.The record does not indicate whether the doctors have elected to come under the Nebraska Hospital Medical Liability Act.The wording, however, of §§ 25-222and44-2855 is essentially the same.Therefore, we analyze Casey's claims against both the doctors and the hospital under § 25-222, which provides in part:

Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action[.]

Consequently, Casey's petition, filed on November 7, 1997, more than 2 years after her initial discharge from the hospital on October 28, 1995, was filed out of time unless the statute of limitations was tolled.

The Court of Appeals correctly noted that Nebraska has adopted the continuing treatment doctrine in medical malpractice actions.In fact, Nebraska has merged this doctrine with the occurrence rule.In Healy v. Langdon,245 Neb. 1, 5, 511 N.W.2d 498, 501(1994), we held: "In medical malpractice cases, the period of limitations or repose begins to run when the treatment rendered after and relating to the allegedly wrongful act or omission is completed."

The Court of Appeals determined that on

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