Swassing v. Baum

• Decision Date: 25 March 1976
• Docket Number: 40216,Nos. 40215,s. 40215
• Citation: 240 N.W.2d 24,195 Neb. 651
• Parties: Lynn SWASSING, Appellant, v. C. J. BAUM and Mrs. John Van De Vegt, real and true first name unknown, Appellees. Ronald W. SWASSING, Appellant, v. C. J. BAUM and Mrs. John Van De Vegt, real and true first name unknown, appellees.
• Court: Nebraska Supreme Court

Page 24

240 N.W.2d 24

195 Neb. 651

Lynn SWASSING, Appellant, v. C. J. BAUM and Mrs. John Van De Vegt, real and true first name unknown, Appellees.

Ronald W. SWASSING, Appellant, v. C. J. BAUM and Mrs. John Van De Vegt, real and true first name unknown, appellees.

Nos. 40215, 40216.

Supreme Court of Nebraska.

March 25, 1976.

Syllabus by the Court

1. 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.

2. 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.

3. The Legislature, by enacting section 25--222, R.S.Supp.1974, did not intend that the various aspects of the whole professional relationship should be separated and a 2-year statute of limitations be applicable to those acts performed directly by the doctor or head of the professional unit, and a 4-year statute of limitations be applicable to acts performed, during the course of the professional relationship, by employees of the professional unit upon specific direction of the professional master.

4. The special statute of limitations controls over a general one because the special statute is the one that expresses the legislative will, providing the acts complained of come within the meaning therein expressed.

David A. Johnson, Ronald H. Stave, of The Law Offices of Emil F. Sodoro, P.C., Omaha, for appellants.

John R. Douglas, of Cassem, Tierney, Adams & Gotch, Omaha, Frederick M. Deutsch, Norfolk, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

WHITE, Chief Justice.

This case involves appeals from the sustaining of demurrers and the dismissal by the District Court of the plaintiffs' petitions. We affirm the judgment of the District Court.

On August 6, 1974, petitions were filed by the plaintiffs in the District Court for Douglas County, Nebraska. The defendant, Dr. Baum, and his employee, Mrs. Van De Vegt, were named as codefendants. The petitions alleged the following facts. In June or July 1966, plaintiff Lynn Swassing came to Dr. Baum for testing and examination to determine if she was pregnant. Dr. Baum ordered Mrs. Van De Vegt to do a blood typing test on Mrs. Swassing. This was done. Dr. Baum advised Mrs. Swassing that she had type A-positive blood. Previously, Mrs. Swassing did not know her blood type. It was determined that she was pregnant and in October 1966 with Dr. Baum attending, a normal, healthy, female child was born to her.

In May or June 1968, Mrs. Swassing returned to Dr. Baum and again he determined that she was pregnant. No blood typing test was performed at this time. In January 1969, with Dr. Baum attending, Mrs. Swassing gave birth to her second child, this time a normal, healthy male child.

In October or November 1970, Mrs. Swassing again presented herself to Dr Baum for examination. This time Dr. Baum ordered a new blood typing test performed. The results from this test showed that Mrs. Swassing had AB-negative blood, and not A-positive blood as the 1966 test had indicated. A second test in December 1970, reaffirmed that Mrs. Swassing had AB-negative blood. It was then determined that Mr. Swassing had A-positive blood, and that the combination of the two types created an RH factor in the blood of the child Mrs. Swassing was then pregnant with. That child, Richard Swassing, was born in March 1971 with serious and permanent injuries. It was alleged that had not Mrs. Swassing's blood been erroneously typed in 1966 by Dr. Baum's employee, Mrs. Van De Vegt, the injuries to Richard Swassing could have been averted. It was further alleged that as a direct and proximate result of that negligence it is now impossible for Mrs. Swassing to bear normal, healthy children in the future. Damages were sought.

The plaintiffs sought to recover from Dr. Baum on the theory that he is liable for the negligent acts of Mrs. Van De Vegt, as her employer, under the doctrine of respondeat superior. Dr. Baum demurred to the plaintiffs' petitions on the grounds that they alleged an act of professional negligence which had occurred in 1966, and which was discovered in October or November 1970, or March 1971, when Richard Swassing was born, at the latest; that plaintiffs' actions were not filed until August 1974, and consequently the causes of action were barred by the Nebraska statute of limitations governing actions for professional negligence. § 25--222, R.S.Supp., 1974. Dr. Baum further demurred on the ground that insofar as plaintiffs sought to recover damages for mental anguish, their petitions failed to state a cause of action. The District Court, after a hearing on the motions, held that section 25--222, R.S.Supp., 1974, applied to the plaintiffs' causes of action and that they were barred. The demurrers were sustained and plaintiffs' petitions were dismissed with prejudice. Both plaintiffs have appealed and the cases have been consolidated here.

Section 25--222, R.S.Supp., 1974, provides as follows: '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; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then 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; And provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action.'

It is apparent that a direct action against Dr. Baum could not be maintained by plaintiffs. Therefore, instead of proceeding directly against Dr. Baum for professional negligence, the plaintiffs attempt to reach him indirectly with a respondent superior theory, hoping thus to avoid the statutory bar of section 25--222, R.R.Supp., 1974. The plaintiffs' theory is as follows: Mrs. Van De Vegt was an employee and agent of Dr. Baum. Her alleged negligence in making an erroneous blood type of Mrs. Swassing, it is contended, was not professional negligence, but...