Nebraska Supreme Court Puts the Brakes on the Continuous Treatment Doctrine

Amazing! Nebraska Supreme Court Puts the Brakes on the Continuous Treatment Doctrine

Information about Nebraska Supreme Court Puts the Brakes on the Continuous Treatment Doctrine

Phil Puccio

The statute of limitations is a common defense in medical malpractice cases. Patients are often reluctant to sue a doctor with whom they have an ongoing relationship. This has resulted in many lawsuits being filed after the statute of limitations has expired. In the past, patients have relied on the vague and confusing “Continuous Treatment Doctrine” to avoid statutes of limitations. This will be much more difficult to accomplish now.

The Nebraska Supreme Court on Friday finally settled a long-standing conflict between case lines that interpreted the doctrine of continued treatment in cases of medical malpractice. See Bogue vs. Gillis, 311 Neb. 445, 2022 Neb. LEXIS 50 (2022). The court thus significantly restricted the application of the doctrine.

The conflict

In the case of medical malpractice, the action must be brought within two years of the alleged negligent act or omission. The law provides an exception if the negligence has not been discovered within two years and could have been discovered. In these circumstances, a patient has one year from the date of discovery to file a complaint. But what about situations where the doctor continues to treat the patient and the negligence is not so clear? The Nebraska Supreme Court has developed two lines of procedure for this situation. The inconsistency between these case lines has puzzled attorneys for years.

The first set of cases states that a cause of action arises and the statute of limitations begins to run from the date of the alleged negligent act, except “where there has either been a misdiagnosis as a result of which wrong treatment has been given, or where there has been a continued one negligent treatment.” Frezell vs. Iwerson, 231 Neb. 365, 369, 436 NW2d 194, 198 (1989). In these cases, the so-called “long-term treatment theory” applies and the limitation period only begins when the continued negligent treatment ends. Frezell and the following cases applied the doctrine of continuous treatment just where the negligence continued.

The second set of cases arose from the policy that physicians should be given an opportunity to repair the damage caused by their negligence before a lawsuit has to be filed. See Healy versus Langdon, 245 Neb.1, 511 NW2d 498 (1994). A long line of cases after that Healthy The doctrine of long-term treatment is “merged” into the rule that a cause of action arises at the time of the negligent act. The statute of limitations therefore only began to run when the treatment “after and in connection with the alleged unlawful act or omission” has been completed. In other words, if a doctor treated the complications caused by his negligence, the statute of limitations did not start until the completion of that treatment, regardless of whether the subsequent treatment was negligent or not.

The resolution

Bogue presented this conflict openly. The plaintiff a Bogue claimed her surgeon negligently injured her ureter during an operation performed in January 2017. The surgeon continued to treat the plaintiff for the complications of this ureteral injury until at least January 2018. The lawsuit was filed in January 2020. The district court found the lawsuit premature and dismissed on summary judgment in favor of the surgeon.

In the appeal, the plaintiff argued pursuant to Healthy Series of cases, her cause of action did not arise and the statute of limitations did not begin to run until the surgeon completed her treatment in January 2018, making her January 2020 lawsuit timely. The surgeon argued under which Frezell Series of cases that the doctrine of continuous treatment was not applicable because there was no evidence that his treatment after the January 2017 injury had been negligent.

The court resolved this conflict by examining the plain language of the law. The court found that the law already provided for a one-year detection exemption. Following the rule that courts generally do not create exceptions where a law already provides for exceptions, the Court concluded that the broad exception for continuous treatment was created by Healthy not compatible with the statute. The court therefore rejected this Healthy and consequential cases that provided for a continuation treatment exception if the subsequent treatment was not negligent. And that’s how it happened just A situation where the continuing treatment exception applies is when the ongoing treatment is itself a continuing tort. In other words, the doctrine of continuous treatment “applies only where there has been a misdiagnosis based on which wrong treatment has been given, or where there has been other continued negligent treatment.” Bogue311 Neb. at 462, 2022 Neb. LEXIS 50, *28.

The clarity this case brings should help the defendants move on. Patients can no longer rely on an ongoing relationship with their doctor to extend the statute of limitations. Defense measures based on the statute of limitations should be significantly more successful in the future.

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