Healy v. Langdon

• Decision Date: 28 January 1994
• Docket Number: No. S-91-1206,S-91-1206
• Citation: 245 Neb. 1,511 N.W.2d 498
• Parties: James P. HEALY, as Special Administrator of the Estate of Sherry L. Healy, and James P. Healy, Individually, Appellant, v. Robert M. LANGDON, M.D., Appellee.
• Court: Nebraska Supreme Court

Page 498

511 N.W.2d 498

245 Neb. 1

James P. HEALY, as Special Administrator of the Estate of Sherry L. Healy, and James P. Healy, Individually, Appellant, v. Robert M. LANGDON, M.D., Appellee.

No. S-91-1206.

Supreme Court of Nebraska.

Jan. 28, 1994.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper 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.

2. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

3. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.

4. Summary Judgment: Proof. After a movant for summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party.

5. Summary Judgment: Appeal and Error. In reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from the evidence.

6. Malpractice: Limitations of Actions. 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.

7. Judgments: Appeal and Error. A proper result will not be reversed merely because it was reached for the wrong reasons.

Jeffrey A. Silver, Omaha, for appellant.

Joseph F. Bataillon, of Sodoro, Daly & Sodoro, Omaha, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

WHITE, Justice.

Appellant, James P. Healy, filed a wrongful death action against appellee, Dr. Robert M. Langdon. James Healy alleged that Dr. Langdon had negligently failed to warn the decedent, Sherry L. Healy, of the potential side effects of her chemotherapy regimen. The district court granted Dr. Langdon's motion for summary judgment, finding that the action was barred by the statute of limitations. We reverse the decision of the district court and remand the cause for further proceedings.

In September 1987, after a diagnosis of cancer and the surgical removal of a tumor, Sherry Healy began chemotherapy under the care of Dr. Langdon. The chemotherapy was to include a scheduled nine doses of the drug bleomycin.

On November 25, Sherry Healy received the seventh dose. On December 4, when she was to receive the eighth dose, Sherry Healy told Dr. Langdon that she was experiencing a tight chest and shortness of breath. Dr. Langdon suspected that she might be suffering from an inflammation of the lungs caused by the bleomycin. Dr. Langdon withheld the eighth dose of bleomycin and began monitoring Sherry Healy's lung condition.

Despite Dr. Langdon's efforts, Sherry Healy's lung condition worsened. On December 29, her right lung collapsed and she was admitted to the hospital.

Sherry Healy died on January 22, 1988. According to Dr. Langdon, the autopsy revealed no sign of active cancer, but did reveal scarring of the lung tissue. In Dr. Langdon's opinion, Sherry Healy's death was caused by "bleomycin lung."

James Healy, Sherry Healy's husband, filed this wrongful death action pursuant to Neb.Rev.Stat. §§ 30-809 and 30-810 (Reissue 1989) on January 19, 1990. Dr. Langdon filed an answer denying any negligence and alleging that the action was time-barred. Dr. Langdon then moved for summary judgment.

Dr. Langdon contended that the action was barred by the professional malpractice statute of limitations found in the Nebraska Hospital-Medical Liability Act, Neb.Rev.Stat. § 44-2828 (Reissue 1988). James Healy contended that the action was allowed by the wrongful death statute of limitations, § 30-810. Although both statutes provide for a 2-year limitation period, the professional malpractice limitation period begins to run at the time of the malpractice, while the wrongful death limitation period begins to run at the date of death. §§ 30-810 and 44-2828.

The district court found that the action was governed by the professional malpractice statute of limitations. The district court also found that the action did not fall within the continuing treatment exception to the professional malpractice statute of limitations. The district court determined that the statute of limitations began to run on the date of Sherry Healy's final bleomycin treatment, November 25, 1987. The district court thus concluded that the action was time-barred.

James Healy appeals from the district court's order granting summary judgment to Dr. Langdon. He asserts that the district court erred (1) in failing to apply the wrongful death statute of limitations and (2) in failing to apply the continuing treatment exception to the professional malpractice statute of limitations.

Summary judgment is proper 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. Plambeck v. Union Pacific RR. Co., 244 Neb. 780, 509 N.W.2d 17 (1993); VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993).

" 'On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.' " Quality Equip. Co. v. Transamerica Ins. Co., 243 Neb. 786, 789-90, 502 N.W.2d 488, 491 (1993). Accord Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993). The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Transamerica Commercial Fin. Corp. v. Rochford, 244 Neb. 802, 509 N.W.2d 214 (1993); VonSeggern, supra. After a movant for summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party. Transamerica Commercial Fin. Corp., supra; VonSeggern, supra.

In reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from the evidence. VonSeggern, supra; Zwingman v. Kallhoff, 244 Neb. 514, 507 N.W.2d 894 (1993).

Dr. Langdon argues that he is entitled to summary judgment because the present action is barred by the professional malpractice statute of limitations. We disagree.

In the professional malpractice context, Nebraska generally follows the occurrence rule. Tiwald v. Dewey, 221 Neb. 547, 378 N.W.2d 671 (1985). That is, a professional malpractice cause of action accrues and the statute of limitations begins to run when the allegedly wrongful act or omission occurs. § 44-2828. See, also, Neb.Rev.Stat. § 25-208 (Reissue 1989). In 1941, however, we carved out an exception to the occurrence rule: the continuing treatment exception. See Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121 (1941). See, also, Tiwald, supra; Smith v. Dewey, 214 Neb. 605, 335 N.W.2d 530 (1983). Under the continuing treatment exception, the statute of limitations does not begin to run "until the act complained of, and any resulting subsequent treatment therefor, is completed." (Emphasis supplied.) Smith, 214 Neb. at 609-10, 335 N.W.2d at 533.

This court recognized the continuing treatment exception because the exception aided both patients and physicians:

[I]t is just to the physician and surgeon that he may not be harassed by premature litigation instituted in order to save the right of the patient in the event there should be substantial malpractice. The physician and surgeon must have all reasonable time and opportunity to correct the evils which made the observation and treatment necessary and to correct the ordinary and usual mistakes incident to even skilled surgery. The [continuing treatment exception] is conducive to that mutual confidence which is highly essential in the relation between surgeon and patient. The treatment and employment should be considered as a whole, and if there occurred therein malpractice, the statute of limitations should begin to run when the treatment ceased.

Williams, 140 Neb. at 662-63, 1 N.W.2d at 124. We have continued to recognize both the exception and the benefits it provides. See Smith, supra.

More recently, this court has merged the continuing treatment exception into the occurrence rule and has enunciated the following general rule: 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. Ourada v. Cochran, 234 Neb. 63, 449 N.W.2d 211 (1989); Barry v. Bohi, 221 Neb. 651, 380 N.W.2d 249 (1986).

This case presents us with our first opportunity to apply the above-stated general rule to a failure-to-warn claim. We are guided, however, by two earlier failure-to-warn cases in which we considered the continuing treatment exception: Smith, supra, and Tiwald, supra. The facts of these two cases are strikingly similar. Both patients sought treatment for allergies, both patients were not warned...