Understanding the statute of limitations for any case is an essential first step. However, determining whether a claim was timely filed is not always clear in medical malpractice cases. This is especially true when the patient continues receiving treatment after the alleged negligence.
Under the Nebraska Hospital-Medical Liability Act, a patient must bring a medical malpractice lawsuit within two years of the allegedly wrongful act, or if such wrongful act could not be reasonably discovered within that two years, the lawsuit may be brought within one year from the date of discovery. In addition, Nebraska has adopted the continuous treatment doctrine, which delays commencement of the two-year statute of limitations. However, Nebraska courts have historically applied different versions of this doctrine. One line of cases held that the continuous treatment doctrine only applies if there has been a continuous course of negligent treatment. In comparison, another line of cases found the doctrine applies if there is a continuing course of treatment following and related to the alleged negligence—meaning, the subsequent treatment does not have to be negligent, just related to the negligently caused injury.
In Bogue v. Gillis, 311 Neb. 445, 973 N.W.2d 338 (2022), the Nebraska Supreme Court acknowledged the conflicting legal standards and offered some clarity. In this case, Robert Bogue and Lori Bogue filed a lawsuit against Christopher C. Gillis, M.D. for medical malpractice. On January 17, 2017, Dr. Gillis performed a lumbar spine fusion on Ms. Bogue. Three years later, the Bogues filed a lawsuit against Dr. Gillis, alleging he negligently damaged Ms. Bogue’s ureter which caused one of her kidneys to stop functioning. Recognizing the potential statute of limitations issue, the Bogues filed an amended complaint alleging Dr. Gillis continued to treat Ms. Bogue through January of 2018. In response, Dr. Gillis filed a motion for summary judgment claiming the malpractice claim was untimely. The district court granted this motion and held the statute of limitations began to run as of January 2017 and the Bogues did not file their action within two years from that date. The Bogues then appealed this case.
The Nebraska Supreme Court conclusively held the statute of limitations under the continuous treatment doctrine “begins to run at the conclusion of a course of treatment only if there has been treatment pursuant to a misdiagnosis or a continuing course of negligent treatment.” Bogue, 311 Neb. at 459-60. The other line of cases was effectively overruled. As a result, the Court upheld summary judgment for Dr. Gillis. Ms. Bogue’s treatment that allegedly caused her injuries occurred in January 2017. Ms. Bogue, however, did not bring an action until January 2020—three years later. Absent evidence Dr. Gillis was negligent after the surgery, the continuous treatment doctrine did not apply. Thus, the lawsuit was not timely filed.
The Court’s decision in Bogue v. Gillis provides needed clarity to the continuous treatment doctrine and the applicable statute of limitations for medical malpractice actions. For further information and guidance, contact an experienced medical malpractice attorney.