The statute of limitations is a frequent defense in medical malpractice cases. Patients are often reluctant to sue a physician with whom they have an ongoing relationship. This has led to many cases being filed after the statute of limitations has expired. In the past, patients have relied upon the vague and confusing “continuous treatment doctrine” to avoid the statute of limitations. That will now be much more difficult to accomplish.

The Nebraska Supreme Court on Friday finally reconciled a longstanding conflict between lines of cases interpreting the continuous treatment doctrine in medical malpractice cases. See Bogue v. Gillis, 311 Neb. 445, 2022 Neb. LEXIS 50 (2022). In so doing, the Court significantly limited the application of the doctrine.

The Conflict

In medical malpractice cases, suit must be filed within two years of the allegedly negligent act or omission. The statute provides for an exception where the negligence was not and could not have been discovered within two years. In that circumstance, a patient has one year from the date of discovery to file suit. But what about situations where the physician continues to treat the patient and the negligence is not that clear? The Nebraska Supreme Court developed two lines of cases for this situation. The inconsistency between these lines of cases has confused lawyers for years.

The first line of cases holds that a cause of action accrues, and the statute of limitations begins to run, on the date of the allegedly negligent act, except “when there has been either a misdiagnosis upon which incorrect treatment is given or when there has been a continuing course of negligent treatment.” Frezell v. Iwerson, 231 Neb. 365, 369, 436 N.W.2d 194, 198 (1989). In those situations, the so-called “continuous treatment doctrine” applies and the statute of limitations does not begin to run until the conclusion of the continuing negligent treatment. Frezell and the cases that followed applied the continuous treatment doctrine only where the negligence was ongoing.

The second line of cases arose from the policy that physicians should be given the opportunity to correct the harm caused by their negligence before a lawsuit must be filed. See Healy v. Langdon, 245 Neb.1, 511 N.W.2d 498 (1994). A long line of cases after Healy held the continuous treatment doctrine had “merged” into the rule that a cause of action accrues on the date of the negligent act. Thus, the statute of limitations did not begin to run until the treatment rendered “after and relating to the allegedly wrongful act or omission is completed.” In other words, if a physician was treating the complications his or her negligence caused, the statute of limitations did not begin to run until the conclusion of that treatment, whether the subsequent treatment was negligent or not.

The Resolution

Bogue squarely presented this conflict. The plaintiff in Bogue claimed her surgeon negligently injured her ureter during surgery performed in January 2017. The surgeon continued to treat the plaintiff for the complications of this ureteral injury until at least January 2018. Suit was filed in January 2020. The district court held the suit was untimely and granted summary judgment in favor of the surgeon.

On appeal, the plaintiff argued, under the Healy line of cases, her cause of action did not accrue and the statute of limitations did not begin to run until the surgeon finished treating her in January 2018, making her January 2020 suit timely. The surgeon argued, under the Frezell line of cases, that the continuous treatment doctrine did not apply because there was no evidence any of his treatment after the January 2017 injury had been negligent.

The Court resolved this conflict by examining the plain language of the statute. The Court noted the statute already provided a one-year discovery exception. The Court, following the rule that courts will generally not create exceptions where a statute already provides exceptions, concluded the broad continuous treatment exception created by Healy could not be reconciled with the statute. The Court thus disapproved Healy and subsequent cases that provided for a continuous treatment exception where the subsequent treatment was not negligent. Thus the only situation where the continuous treatment exception applies is where the ongoing treatment is itself a continuous tort. Put another way, the continuous treatment doctrine “applies only when there has been a misdiagnosis upon which incorrect treatment is given or when there has been some other continuing course of negligent treatment.” Bogue, 311 Neb. at 462, 2022 Neb. LEXIS 50, *28.

The clarity this case brings should help defendants going forward. Patients can no longer rely on a continuing relationship with their physician to extend the statute of limitations. Defenses based upon the statute of limitations should be much more successful in the future.