Bogue v. Gillis ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/08/2022 01:07 AM CDT
- 445 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Lori J. Bogue and Robert F. Bogue,
appellants, v. Christopher C.
Gillis, appellee.
___ N.W.2d ___
Filed April 22, 2022. No. S-21-610.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Statutes: Appeal and Error. Statutory interpretation presents a question
of law that an appellate court resolves independently of the trial court.
4. Public Policy. While the doctrine of stare decisis is entitled to great
weight, it is grounded in the public policy that the law should be stable,
fostering both equality and predictability of treatment.
5. Appeal and Error. Remaining true to an intrinsically sounder doctrine
better serves the values of stare decisis than following a more recently
decided case inconsistent with the decisions that came before it.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Robert T. Cannella and Gerald L. Friedrichsen, of Fitzgerald,
Schorr, Barmettler & Brennan, P.C., L.L.O., for appellants.
David A. Blagg and Brien M. Welch, of Cassem, Tierney,
Adams, Gotch & Douglas, for appellee.
- 446 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Lori J. Bogue and Robert F. Bogue filed a lawsuit against
Christopher C. Gillis, alleging that as a result of Gillis’ neg-
ligence during a surgical procedure, Lori suffered injuries.
The Bogues now seek review of the district court’s entry of
summary judgment in favor of Gillis on statute of limita-
tions grounds. The timeliness of the Bogues’ lawsuit turns on
whether the 2-year statute of limitations started to run on the
date of the surgery or when Gillis’ subsequent treatment of
Lori concluded approximately 1 year later. We find the district
court did not err in concluding that the statute of limitations
started to run on the date of the surgery and therefore affirm its
entry of summary judgment in favor of Gillis.
BACKGROUND
Parties’ Allegations.
On January 17, 2017, Gillis performed a lumbar spine fusion
on Lori in Omaha, Nebraska. Nearly 3 years later, on January
3, 2020, the Bogues filed a lawsuit against Gillis and other
defendants. In the lawsuit, the Bogues alleged that during the
surgery, Gillis negligently damaged Lori’s ureter and that,
consequently, one of her kidneys stopped functioning and had
to be removed. The Bogues claimed that as a result of Gillis’
negligence, Lori suffered physical pain and mental distress and
Robert suffered a loss of consortium.
In an amended complaint, the Bogues later alleged that
Gillis continued to treat Lori through at least January 18, 2018,
when he determined that Lori had a psoas abscess that was in
close proximity with “hardware” that was implanted as part of
the spinal fusion procedure. That amended complaint alleged
that because Gillis continued to treat Lori through January
2018, their initial complaint was timely filed.
Gillis alleged in his answer that the Bogues’ malpractice
claim against him was barred by the statute of limitations
- 447 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445set forth in the Nebraska Hospital-Medical Liability Act. See
Neb. Rev. Stat. § 44-2828 (Reissue 2021).
Summary Judgment Evidence.
Gillis later filed a motion for summary judgment on statute
of limitations grounds. At the summary judgment hearing, the
district court received depositions of both Lori and Robert,
Lori’s medical records, and an affidavit from an expert witness
retained by the Bogues.
Lori and Robert testified in their depositions that Lori
began to notice a collection of fluid in her abdomen shortly
after arriving home from the surgery. Lori’s medical records
showed that in the year following the surgery, she continued
to have appointments with Gillis in which the fluid collection
was addressed. A note describing an appointment with Gillis
on November 9, 2017, stated that “[t]here appears to be a fluid
collection in the left psoas and into the abdomen” and went
on to state that “we will have to obtain the radiology report to
further understand what this may entail.” Another note describ-
ing an appointment with Gillis on January 19, 2018, observed
that Lori presented “with [a] history of fluid collection” after
her spine surgery “and then subsequent development of a psoas
abscess which she continues to undergo drainage and antibiotic
therapy for.” The notes indicated that Gillis reviewed an MRI
and observed that the fluid collection had made contact “with
the interbody cages.” He recommended another MRI to look
for evidence of “hardware infection.”
Lori and Robert testified that in February 2018, they learned
that Lori had suffered an injury to her ureter. At that time, both
Lori and Robert believed that Gillis had negligently injured
Lori during the surgery in January 2017. Lori’s left kidney was
removed in March 2018.
The Bogues’ expert opined by affidavit that Gillis had
breached the standard of care during the surgery in various
respects and that if Gillis had complied with the standard
of care, Lori’s ureter would not have been injured and she
- 448 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445would not have lost her kidney. The Bogues’ expert also opined
that Gillis’ treatment of Lori after the surgery “was related to
the surgical negligence.”
District Court Order.
The district court granted Gillis’ motion for summary judg-
ment. It concluded that whether the Bogues’ claim was gov-
erned by the general professional negligence statute of limita-
tions set forth in Neb. Rev. Stat. § 25-222 (Reissue 2016) or
the statute of limitations set forth in the Nebraska Hospital-
Medical Liability Act, see § 44-2828, Gillis was entitled to
summary judgment on statute of limitations grounds.
The district court rejected the Bogues’ argument that under
the continuous treatment doctrine, the statute of limitations
did not begin to run until the conclusion of Gillis’ treatment
of Lori in January 2018. With respect to the continuous treat-
ment doctrine, the district court quoted the following language
from our opinion in Frezell v. Iwersen, 231 Neb. 365, 369, 436
N.W.2d 194, 198 (1989): “The continuous treatment doctrine
applies when there has been either a misdiagnosis upon which
incorrect treatment is given or when there has been a continu-
ing course of negligent treatment. It does not apply where there
have been only isolated acts of negligence.” The district court
observed that there was no evidence that Gillis misdiagnosed
Lori or was negligent after the January 2017 surgery.
Because the district court concluded that under the undis-
puted facts in the record, the statute of limitations began to run
as of the January 2017 surgery, it determined that the Bogues’
January 2020 complaint was not timely filed and that Gillis
was entitled to summary judgment.
The Bogues perfected an appeal of the district court’s ruling
and filed a petition to bypass the Nebraska Court of Appeals.
We granted the petition to bypass.
All of the Bogues’ claims against defendants other than
Gillis either were dismissed by operation of law due to the
Bogues’ failure to serve, were voluntarily dismissed by the
- 449 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Bogues, or were also resolved by summary judgment. At oral
argument, counsel for the Bogues confirmed that they are
appealing only the district court’s entry of summary judgment
in favor of Gillis.
ASSIGNMENT OF ERROR
The Bogues assign several errors, but they can effectively be
restated as a single contention that the district court erred by
finding that their malpractice claim was barred by the statute
of limitations.
STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter of
law. Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).
An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most
favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Id.[3] Statutory interpretation presents a question of law that an
appellate court resolves independently of the trial court. Seivert
v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021).
ANALYSIS
What Statute of Limitations Applies?
The sole issue presented in this appeal is whether the district
court correctly granted summary judgment to Gillis on statute
of limitations grounds. We first address which statute of limita-
tions applies.
Gillis claims that because the Bogues alleged that he was
covered by the Nebraska Hospital-Medical Liability Act, the
statute of limitations set forth in § 44-2828 applies to the
Bogues’ claim, rather than the general professional negligence
statute of limitations set forth in § 25-222. The Bogues do
- 450 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445not dispute that assertion, but it is ultimately of little conse-
quence because both parties agree that those statutes of limita-
tion are identical as they relate to this case. See Giese v. Stice,
252 Neb. 913, 919, 567 N.W.2d 156, 162 (1997) (observing
that language of § 44-2828 and § 25-222 is “identical in
all material respects”). We will thus analyze this case under
§ 44-2828, but in doing so, we will also consider prior cases
interpreting and applying § 25-222.
Section 44-2828 provides:
Except as provided in section 25-213, any action to
recover damages based on alleged malpractice or profes-
sional negligence or upon any alleged breach of warranty
in rendering or failing to render professional services shall
be commenced within two years next after the alleged act
or omission in rendering or failing to render professional
services providing the basis for such action, except that
if the cause of action is not discovered and could not
be reasonably discovered within such two-year period,
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. In no event may any action be com-
menced to recover damages for mal­practice or profes-
sional negligence or breach of warranty in rendering or
failing to render professional services more than ten years
after the date of rendering or failing to render such pro-
fessional service which provides the basis for the cause
of action.
Pursuant to this language, an action must be commenced
within 2 years of the date the limitations period began to run
unless the cause of action was not or could not reasonably be
discovered within that 2-year period. See Bonness v. Armitage,
305 Neb. 747, 942 N.W.2d 238 (2020). The discovery excep-
tion is not at issue in this appeal. Instead, the question of
whether the Bogues’ claim was timely filed hinges entirely on
when the 2-year statute of limitations began to run.
- 451 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Does Continuous Treatment Doctrine Apply?
Upon first blush, the question of when the statute of limi-
tations began to run might appear obvious. Section 44-2828
provides that the action “shall be commenced within two
years [of] the alleged act or omission in rendering or failing
to render professional services providing the basis for such
action.” We have recognized that such language provides for
an “occurrence rule,” whereby the statute of limitations begins
to run upon the alleged act or omission causing injury. See,
e.g., Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994)
(interpreting § 44-2828); Suzuki v. Holthaus, 221 Neb. 72, 375
N.W.2d 126 (1985) (interpreting § 25-222). And there is no
real dispute that the act or omission providing the basis for the
Bogues’ action against Gillis occurred during Lori’s surgery in
January 2017.
As it turns out, however, the statute of limitations issue in
this case is not as simple as it may initially appear. It is com-
plicated by our cases discussing and applying what we have
referred to as the “continuous treatment doctrine.” See, e.g.,
Frezell v. Iwersen, 231 Neb. 365, 369, 436 N.W.2d 194, 198
(1989). The Bogues, invoking some of those cases, argue that
under the continuous treatment doctrine, the statute of limita-
tions did not begin to run on their claim against Gillis until
his treatment after Lori’s surgery concluded in mid-January
2018. The Bogues acknowledge that they are not alleging and
have no evidence that Gillis acted negligently after the January
2017 surgery, but they contend that is immaterial. As they
understand the continuous treatment doctrine, so long as Gillis’
subsequent treatment was related to the initial negligence, the
doctrine applies and the statute of limitations did not begin to
run until that related treatment concluded.
Gillis disagrees. While he concedes the Bogues have offered
expert testimony that Gillis breached the standard of care dur-
ing surgery and that his treatment of Lori through January
2018 was related to that alleged negligence, he argues that
this subsequent treatment does not affect when the statute of
- 452 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445limitations began to run. According to Gillis, the continuous
treatment doctrine applies only when there has been a mis­
diagnosis upon which incorrect treatment is subsequently given
or a continuing course of negligent treatment. And because the
evidence here would not permit an inference of either treatment
provided pursuant to a misdiagnosis or a continuing course of
negligent treatment, Gillis argues that the district court cor-
rectly determined that the statute of limitations began to run on
the date of Gillis’ alleged negligence in January 2017.
At this point, we will acknowledge that both the Bogues
and Gillis can point to cases decided by this court that are
supportive of their respective understandings of the con-
tinuous treatment doctrine. We discuss those cases in some
detail below.
Conflict Within Continuous
Treatment Doctrine Cases.
Both parties agree that the origin of the continuous treat-
ment doctrine in Nebraska can be traced to Williams v. Elias,
140 Neb. 656, 1 N.W.2d 121 (1941), a decision issued by this
court over 80 years ago. The Williams court was tasked with
deciding whether the statute of limitations barred a medical
malpractice lawsuit arising out of a doctor’s misdiagnosis of
a plaintiff’s condition and subsequent treatment based on that
misdiagnosis. The patient alleged that he first visited the doctor
after suffering injuries to his back. The doctor diagnosed the
patient with lumbago and proceeded to treat him accordingly
for several months. When the plaintiff was later sent to a hos-
pital, however, it was determined he actually had a fractured
vertebra. As here, the timeliness of the lawsuit depended on
when the governing statute of limitations began to run. If the
statute of limitations began to run on the date of the initial
misdiagnosis, the plaintiff’s lawsuit was filed too late. If, on
the other hand, the statute of limitations began to run when the
doctor’s treatment based on that misdiagnosis concluded sev-
eral months later, it was timely filed. On appeal, the court sided
- 453 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445with the plaintiff and concluded that the statute of limitations
began to run at the conclusion of the treatment.
In analyzing when the statute of limitations began to run,
the Williams court primarily focused on when the doctor’s
breach of duty occurred. The court rejected the doctor’s argu-
ment that “the faulty diagnosis, in and of itself, constituted the
breach of duty.” Id. at 661, 1 N.W.2d at 123. It explained that
the doctor’s duty was to diagnose the patient’s injuries and to
“treat them in the manner usually done by physicians in his
locality.” Id. at 662, 1 N.W.2d at 124. With that understand-
ing in mind, the court concluded that the doctor continued to
breach his duty to the patient for the entire time he was provid-
ing treatment based on a misdiagnosis. See id. (“[i]t was not
the error in the diagnosis originally made by defendant but its
adherence thereto and course of treatment that brought about
the injuries”).
Although much of the court’s statute of limitations analysis
in Williams was devoted to determining whether the doctor’s
breach of duty continued beyond the initial misdiagnosis, in a
concluding paragraph, the court referred to opinions in which
other courts had held that a medical malpractice statute of limi-
tations began to run at the conclusion of a course of treatment
and identified a rationale for those opinions:
[I]t is just to the physician and surgeon that he may not
be harassed by premature litigation instituted in order to
save the right of the patient in the event there should be
substantial malpractice. The physician and surgeon must
have all reasonable time and opportunity to correct the
evils which made the observation and treatment necessary
and to correct the ordinary and usual mistakes incident to
even skilled surgery. The doctrine announced in the fore-
going cases is conducive to that mutual confidence which
is highly essential in the relation between surgeon and
patient. The treatment and employment should be consid-
ered as a whole, and if there occurred therein malpractice,
- 454 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445the statute of limitations should begin to run when the
treatment ceased.
104 Neb. at 662-63, 1 N.W.2d at 124.
The statute of limitations that governed medical malpractice
actions at the time Williams was decided provided that they
must be brought within 2 years after the cause of action accrued.
See, Comp. Stat. § 20-201 (1929); Comp. Stat. § 20-208 (Supp.
1939). Over three decades later, §§ 44-2828 and 25-222 were
enacted. See, 1976 Neb. Laws, L.B. 434, § 28; 1972 Neb. Laws,
L.B. 1132, § 1. As we have noted, these statutes of limitation
provide that a 2-year limitations period begins to run upon the
“act or omission” providing the basis for the action unless the
case falls within an exception set forth in the statute for claims
that are not and cannot be discovered within that period.
In the years that followed the enactment of §§ 44-2828
and 25-222, two different lines of authority emerged from
this court as to how continuous treatment can affect the point
at which the statute of limitations begins to run in a medical
malpractice action. One line of authority followed the initial
inquiry in Williams and centered on whether the defendant’s
breach of duty continued through the course of the treatment.
Under this line of authority, only if the defendant’s negligence
continued through the course of treatment would the statute of
limitations begin to run when the treatment ceased.
The other line of authority that emerged focused on the
concluding paragraph of Williams quoted above, particularly
its emphasis on providing physicians an opportunity to correct
mistakes made during treatment. This line of authority held
that the statute of limitations would begin to run when any
treatment related to the alleged negligence ceased, even if that
subsequent treatment was not itself alleged to be negligent.
An example of the former approach is found in Tiwald v.
Dewey, 221 Neb. 547, 378 N.W.2d 671 (1985). In that case,
a plaintiff’s malpractice claim was based on x-ray treatments
his doctor provided to treat his allergies. The doctor later pro-
vided other forms of treatment for the same condition, and the
- 455 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445patient contended that the statute of limitations began to run
when those other treatments ceased. The plaintiff did not, how-
ever, contend that the doctor was negligent in providing those
subsequent treatments. In the course of rejecting the plaintiff’s
argument, the Tiwald court noted the plaintiff’s reliance on
Williams, but explained that in Williams,
there was a continuing course of negligent treatment,
as opposed to single or isolated acts of negligence. The
malpractice in Williams can be characterized as a continu-
ing tort because the physician persisted in continuing and
repeating the wrongful treatment because of the incorrect
diagnosis. Thus, the statute of limitations did not begin
to run until the continuing negligent treatment which was
the basis of the plaintiff’s claim had ended.
221 Neb. at 551, 378 N.W.2d at 673.
The court concluded that because the plaintiff alleged only
isolated acts of negligence, the statute of limitations began
to run after the completion of the x-ray treatments. Later,
in Ames v. Hehner, 231 Neb. 152, 435 N.W.2d 869 (1989),
the court relied on the above-quoted language from Tiwald
and also focused on whether there was continuing negli-
gent treatment.
In Frezell v. Iwersen, 231 Neb. 365, 436 N.W.2d 194 (1989),
the court again focused on whether the defendant provided
continuing negligent treatment. In Frezell, the plaintiff’s claim
was based on negligence during surgery, but the defendant
continued to treat complications arising from that surgery for
several years thereafter. Again, the issue was when the statute
of limitations began to run. This court rejected the plaintiff’s
argument that the limitations period began to run after the
defendant stopped treating the complications. It stated that
“[t]he continuous treatment doctrine applies when there has
been either a misdiagnosis upon which incorrect treatment is
given or when there has been a continuing course of negli-
gent treatment. It does not apply where there have been only
isolated acts of negligence.” Id. at 369, 436 N.W.2d at 198.
- 456 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Because the plaintiff did not allege that the treatment after the
surgery was negligent, the court held that the statute of limita-
tions began to run on the date of the surgery. See, also, Weyers
v. Community Memorial Hosp., 30 Neb. App. 520, 971 N.W.2d
155 (2022) (concluding continuous treatment doctrine did not
apply because treatment following alleged negligence was not
also alleged to be negligent).
But, as noted above, this court has not been consistent. In a
number of other cases, we stated that the continuous treatment
doctrine had been “merged” into the occurrence rule such that
the period of limitations or repose “begins to run when the
treatment rendered after and relating to the allegedly wrongful
act or omission is completed.” Healy v. Langdon, 245 Neb. 1,
5, 511 N.W.2d 498, 501 (1994). See, also, Carruth v. State, 271
Neb. 433, 712 N.W.2d 575 (2006); Casey v. Levine, 261 Neb.
1, 621 N.W.2d 482 (2001); Weaver v. Cheung, 254 Neb. 349,
576 N.W.2d 773 (1998); Kocsis v. Harrison, 249 Neb. 274,
543 N.W.2d 164 (1996); Ourada v. Cochran, 234 Neb. 63, 449
N.W.2d 211 (1989); Barry v. Bohi, 221 Neb. 651, 380 N.W.2d
249 (1986). These cases make no mention of a requirement that
the treatment rendered after and relating to an allegedly wrong-
ful act or omission must also be negligent.
The clearest application of this more expansive version of
the continuous treatment doctrine and the case most heav-
ily relied upon by the Bogues is Healy, supra. In Healy, the
plaintiff alleged that her doctor failed to obtain her informed
consent to provide chemotherapy treatments and that when she
subsequently developed complications, the doctor continued
to treat her complications. The court concluded that because
the treatment for the complications was related to the treat-
ment for which the doctor failed to obtain informed consent,
the statute of limitations began to run at the conclusion of
the treatment for the complications. No suggestion was made,
however, that the treatment for the complications was negli-
gent. In Healy, the court attempted to harmonize prior cases
discussing the continuous treatment doctrine but did not cite
- 457 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Frezell v. Iwersen, 231 Neb. 365, 436 N.W.2d 194 (1989),
which was decided 5 years before.
The conflict within our continuous treatment cases has not
gone unnoticed. In Joyner v. Forney, 78 F.3d 1339 (8th Cir.
1996), a party appealed a federal district court’s entry of sum-
mary judgment on statute of limitations grounds in a medical
malpractice action governed by Nebraska law. In that appeal,
the U.S. Court of Appeals for the Eighth Circuit rejected the
plaintiff’s argument that his claim was timely due to the appli-
cation of the continuous treatment doctrine. It relied on Frezell,
supra, and explained that the continuous treatment doctrine did
not apply in the way the plaintiff contended, because there was
no evidence that the defendants’ postoperative treatment was
negligent. When the plaintiff later filed a motion for rehearing
contending that the continuous treatment doctrine can delay
the commencement of the limitations period even if related
treatment following the alleged negligent act or omission is not
itself negligent, the Eighth Circuit observed that it was “hard
to reconcile this apparent disparity among the Nebraska cases.”
Joyner, 78 F.3d at 1344.
In our view, the Eighth Circuit was being polite. The dis-
parity in our continuous treatment doctrine cases is more than
apparent, and we do not believe it can be coherently recon-
ciled. In the line of cases that includes Frezell, supra, we have
held that the continuous treatment doctrine applies only if there
has been a continuing course of negligent treatment. In the
line of cases that includes Healy v. Langdon, 245 Neb. 1, 511
N.W.2d 498 (1994), we have held that the doctrine applies if
there is a continuing course of treatment following and related
to the alleged negligence, without any requirement that the
subsequent treatment be negligent.
This case does not allow us to whistle past those divergent
lines of precedent. Gillis would be entitled to summary judg-
ment if Frezell controls, but would not if Healy controls. As a
result, we must decide which line of cases to follow and which
line of cases to overrule. We turn to that question now.
- 458 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Resolution of Conflict.
[4,5] When called to decide whether precedent should be
followed or overruled, courts often consider what one member
of the U.S. Supreme Court recently described as “precedents
on precedent.” Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct.
1390, 1412, 206 L. Ed. 2d 583 (2020) (Kavanaugh, J., con-
curring). “Precedents on precedent” are opinions in which
courts have set forth principles to be considered in deciding
whether prior cases should be overruled. This court has identi-
fied several such principles, and we find some of them espe-
cially relevant to this case. We have said, for example, that
while the doctrine of stare decisis is entitled to great weight,
it is grounded in the public policy that the law should be
stable, fostering both equality and predictability of treatment.
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
We have also recognized that overruling precedent is justified
when the purpose is to eliminate inconsistency. Id. And we
have said that remaining true to an intrinsically sounder doc-
trine better serves the values of stare decisis than following a
more recently decided case inconsistent with the decisions that
came before it. Id.Applying those principles here, we find it appropriate to
consider whether one line of our inconsistent continuous treat-
ment doctrine cases is intrinsically sounder than the other.
We believe consideration of that question must begin with
the statutory language of § 44-2828. It is, after all, a statute
of limitations that determines whether the Bogues’ claim was
timely filed.
As discussed above, § 44-2828 plainly provides for an
occurrence rule whereby the limitations period begins to run
upon “the alleged act or omission . . . providing the basis
for [the] action,” unless the specifically described discovery
exception applies. We see no way in which the occurrence
rule provided for in the text of § 44-2828 can be squared with
the version of the continuous treatment doctrine preferred
by the Bogues and applied in the line of cases that includes
- 459 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445Healy, supra. Under that version of the continuous treatment
doctrine, the limitations period can begin to run long after the
date of the alleged act or omission that provides the basis for
the action, even when the discovery exception does not apply.
For example, in this case, the Bogues argue that the statute of
limitations began to run after Lori’s appointment with Gillis in
mid-January 2018, even though they concede that the only act
or omission providing the basis for her action occurred during
the surgery in January 2017 and that the discovery exception
does not apply.
Not only does § 44-2828’s discovery exception not apply in
this case, its existence makes the Bogues’ preferred version of
the continuous treatment doctrine especially difficult to justify.
Ordinarily, when a statute specifically provides for exceptions,
we will not recognize others judicially. See In re Guardianship
of Eliza W., 304 Neb. 995, 1006, 938 N.W.2d 307, 315 (2020)
(“[o]ne of our rules of statutory interpretation provides that
when a statute specifically provides for exceptions, items not
excluded are covered by the statute”). See, also, Dondlinger
v. Nelson, 305 Neb. 894, 942 N.W.2d 772 (2020) (Papik, J.,
concurring) (contending that recognition of continuous repre-
sentation doctrine in context of § 25-222 is contrary to this rule
of statutory interpretation). Here, however, the version of the
continuous treatment doctrine applied in Healy v. Langdon, 245
Neb. 1, 511 N.W.2d 498 (1994), could exist only as a judicially
recognized exception to the occurrence rule despite the pres-
ence of the statutorily authorized discovery exception.
In contrast to the line of cases including Healy, the line of
cases including Frezell v. Iwerson, 231 Neb. 365, 436 N.W.2d
194 (1989), can be more easily reconciled with the text of
§ 44-2828. Again, that line of cases holds that the limitations
period 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. When there has been
treatment provided pursuant to a misdiagnosis or a continuing
course of negligent treatment, the entire course of treatment
- 460 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445can be understood as the “act or omission . . . providing the
basis for [the] action.” § 44-2828. See, also, Williams v. Elias,
140 Neb. 656, 662, 1 N.W.2d 121, 124 (1941) (“[i]t was not
the error in the diagnosis originally made by defendant but its
adherence thereto and course of treatment that brought about
the injuries”). Other courts have likewise concluded that while
an expansive continuous treatment doctrine like that expressed
in Healy is inconsistent with statutes of limitations similar
to § 44-2828, the same problem is not created by a rule in
which the limitations period begins at the conclusion of a con-
tinuous course of negligent treatment. See, e.g, Cunningham
v. Huffman, 154 Ill. 2d 398, 609 N.E.2d 321, 182 Ill. Dec. 18(1993); Ewing v. Beck, 520 A.2d 653 (Del. 1987).
At oral argument, counsel for the Bogues candidly acknowl-
edged that the version of the continuous treatment doctrine
preferred by the Bogues and exemplified by Healy, supra,is not “literally” compatible with the statutory language of
§ 44-2828. Counsel nonetheless argued that we should follow
that line of cases, invoking the doctrine of legislative acquies-
cence and policy considerations.
We are not persuaded that the doctrine of legislative acqui-
escence assists the Bogues. We have said that where a statute
has been judicially construed and that construction has not
evoked an amendment, it will be presumed that the Legislature
has acquiesced in the court’s determination of the Legislature’s
intent. Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296(2017). We have refused to apply the doctrine, however, when
“there has been no interpretation of any statute in which the
Legislature could be characterized to have acquiesced.” Id.
at 465, 894 N.W.2d at 302. That is the case here. While there
are cases in which this court applied the expanded version of
the continuous treatment doctrine preferred by the Bogues,
those cases did not conclude that the doctrine applied as a
result of the language of § 44-2828 or § 25-222. And, even
setting that issue aside, the Bogues are unable to explain how
we would go about determining which of our conflicting lines
- 461 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445of continuous treatment doctrine cases the Legislature has
acquiesced in.
This leaves the Bogues’ policy argument. They argue that
the version of the continuous treatment doctrine exemplified
by Healy provides physicians with a period of time in which
the statute of limitations will not run when they can attempt
to correct any mistakes. They point out that the concluding
paragraph of Williams, supra, extolled the benefits of giving
physicians such an opportunity.
We do not disagree with the Bogues that the version of the
continuous treatment doctrine set forth in Healy is more consist­
ent with a policy goal of providing doctors an opportunity to
correct their mistakes before the statute of limitations starts to
run. We disagree with the Bogues, however, to the extent they
suggest that this court should have unilaterally departed from
the governing statutory text in an effort to promote this policy
goal. While a rational policy argument could be made for a
rule that allows doctors a period of time to address complica-
tions caused by their alleged negligence before the statute of
limitations begins to run, a rational policy argument could also
be made for an occurrence rule with a discovery exception.
Indeed, this court has previously observed that § 25-222 was
enacted “to insure that actions based upon professional negli-
gence would be brought shortly after the alleged negligence
occurred or was discovered so that the professional could have
a fair chance to defend on the merits and not find his defenses
eroded by the lapse of time.” Swassing v. Baum, 195 Neb. 651,
658, 240 N.W.2d 24, 28 (1976). We highlight these compet-
ing policy arguments not to choose one side or the other, but
to observe that once the Legislature has enacted a statute, the
resolution of those arguments is not our job. As we often say,
“[i]t is the function of the Legislature, through the enactment
of statutes, to declare what is the law and public policy of this
state.” Rogers v. Jack’s Supper Club, 304 Neb. 605, 614, 935
N.W.2d 754, 762 (2019).
- 462 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445As for the Bogues’ contention that Williams v. Elias, 140
Neb. 656, 1 N.W.2d 121 (1941), recognized the benefits of giv-
ing doctors an opportunity to attempt to correct their mistakes
as a policy rationale for the continuous treatment doctrine, we
do not believe that informs the question of when the statute of
limitations begins to run under § 44-2828. Even assuming that
this court determined in Williams that the then-governing stat-
ute of limitations should start to run at the conclusion of any
treatment related to the alleged act or omission at issue regard-
less of whether that subsequent treatment was negligent, the
statute of limitations that applied in Williams no longer applies
today. The Legislature passed new statutes of limitations gov-
erning medical malpractice actions in the 1970s—§§ 44-2828
and 25-222. See, 1976 Neb. Laws, L.B. 434, § 28; 1972 Neb.
Laws, L.B. 1132, § 1. The Legislature could have at that time
incorporated a continuous treatment rule like the one the
Bogues argue was adopted in Williams. As we have discussed,
it did not.
Because we find it to be the analytically sounder rule, we
reaffirm those cases holding that 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. We
disapprove of Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498(1994), and other cases to the extent they suggest that under
the continuous treatment doctrine, the statute of limitations in
a medical malpractice action starts to run upon the conclusion
of any treatment related to the alleged act or omission form-
ing the basis for the cause of action, even if that subsequent
treatment is not alleged to be negligent. See, e.g., Carruth v.
State, 271 Neb. 433, 712 N.W.2d 575 (2006); Casey v. Levine,
261 Neb. 1, 621 N.W.2d 482 (2001); Weaver v. Cheung, 254
Neb. 349, 576 N.W.2d 773 (1998); Kocsis v. Harrison, 249
Neb. 274, 543 N.W.2d 164 (1996); Ourada v. Cochran, 234
Neb. 63, 449 N.W.2d 211 (1989); Barry v. Bohi, 221 Neb. 651,
- 463 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BOGUE v. GILLIS
Cite as 311 Neb. 445380 N.W.2d 249 (1986); Smith v. Dewey, 214 Neb. 605, 335
N.W.2d 530 (1983).
Application.
Having rejected the version of the continuous treatment
doctrine preferred by the Bogues, there is little more to say
about this case. As we have noted, the act or omission that
forms the basis for their action occurred during Lori’s sur-
gery in January 2017. There is no evidence from which it
could be inferred that Gillis was negligent after that surgery.
Accordingly, under the undisputed facts, the statute of limita-
tions began to run in January 2017. The Bogues’ January 2020
complaint was not timely filed, and Gillis was entitled to sum-
mary judgment.
CONCLUSION
The district court did not err in granting Gillis summary
judgment on statute of limitations grounds. Accordingly,
we affirm.
Affirmed.