Olsen v. Richards

• Decision Date: 26 May 1989
• Docket Number: No. 87-1112,87-1112
• Citation: 440 N.W.2d 463,232 Neb. 298
• Parties: Betty J. OLSEN, Appellant, v. Francis L. RICHARDS, M.D., Appellee.
• Court: Nebraska Supreme Court

Page 463

440 N.W.2d 463

232 Neb. 298

Betty J. OLSEN, Appellant, v. Francis L. RICHARDS, M.D., Appellee.

No. 87-1112.

Supreme Court of Nebraska.

May 26, 1989.

Syllabus by the Court

Malpractice: Limitations of Actions. Any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties is malpractice and comes within the professional or malpractice statute of limitations.

H. Titus Swan, of Anderson, Klein, Peterson and Swan, Holdrege, for appellant.

Daniel L. Lindstrom and Jeffrey H. Jacobsen, of Jacobsen, Orr, Nelson & Wright, P.C., Kearney, for appellee.

BOSLAUGH, CAPORALE, and GRANT, JJ., and SPRAGUE and MULLEN, District Judges.

CAPORALE, Justice.

Plaintiff-appellant, Betty J. Olsen, seeks to recover for injuries sustained while visiting her physician, defendant-appellee, Francis L. Richards. The district court sustained Richards' demurrer on the ground Olsen's cause is time barred and, after Olsen refused to plead further, dismissed the action. Olsen assigns the dismissal of her action as error. We affirm.

Olsen's petition was filed on May 22, 1987, and avers that on May 26, 1983, she went to Richards' office "for a scheduled examination and sinus treatment"; that Richards seated her "in a large antique chair consisting of a double-wide steel headrest on top"; and that "[p]rior to the examination and treatment ... Richards situated his hands on the headrest and suddenly and forcefully slammed the headrest down" on Olsen's neck, thereby "causing severe pain and damage to the back of [Olsen's] neck."

The sole issue is whether, as Olsen contends, the 4-year statute of limitations relating to ordinary negligence, Neb.Rev.Stat. § 25-207 (Reissue 1985), applies or whether, as Richards urges, either the 2-year malpractice statute of limitations, Neb.Rev.Stat. § 25-208 (Reissue 1985), or the 2-year professional negligence statute of limitations, Neb.Rev.Stat. § 25-222 (Reissue 1985), controls. Obviously, if the ordinary negligence statute of limitations governs, Olsen's action is not time barred; however, if either the malpractice or professional negligence statute of limitations covers the situation, Olsen's action is so barred.

Olsen's thesis is that her action is regulated by § 25-207 because she has alleged an act of "ordinary negligence." Richards' theory is that as the act of adjusting the examination chair was an integral part of his examination of Olsen as his patient and arose out of the same circumstances as any other act performed by a physician in the course of such an examination and treatment, one or the other of the shorter statutes of limitations rules the outcome.

In Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976), this court determined that an action, brought against a physician on a respondeat superior theory for the alleged negligent acts of his employee in performing a blood-typing test on the plaintiff, was governed by the statute of limitations relating to professional negligence rather than that relating to ordinary negligence. The determinative inquiry for the court was whether the employee was engaged in professional services. Quoting Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968), we said:

"A 'professional' act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual. * * * In determining whether a particular act is of a professional nature or a 'professional service' we must look not to the title or character of the party performing the act, but to the act itself." ... It is thus irrelevant, in determining whether [the employee] was performing a professional service at the time of the alleged negligence, to show what the title of her position with [the physician] was, or what her status was denominated. The court must look to the nature of the act itself and the circumstances under which it was performed.

(Emphasis in original.) Swassing v. Baum, 195 Neb. at 656, 240 N.W.2d at 27.

The Swassing court concluded:

The performance of the blood test was an essential and integral part of the rendition of professional services by [the physician] to [the plaintiff]. When [the plaintiff] presented herself to [the physician] ... for examination and diagnosis, a professional relationship, in this case, doctor-patient, was created. This professional relationship was the stimulus for the performance of the blood typing test on [the plaintiff], and the test and the interpretation of its results all occurred during the course of the professional relationship.

Id.

In Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964), this court determined that the 2-year malpractice statute of limitations, rather than the 4-year statute which governed fraud, applied to an action against a physician for fraudulently concealing the cause and nature of a patient's condition. All the statements and acts complained of occurred during the physician-patient relationship. We stated:

We do not think that the advice and the statements of a physician as to the nature and cause of a patient's condition, as a part of the necessities of treating and consulting with the patient, are separable. They are the essentials to the performance of the physician's whole duty to the patient. We do not think that the Legislature, when it enacted the special limitation statute of 2 years on malpractice intended to separate certain portions of the whole...