Weyers v. Community Memorial Hosp. , 30 Neb. Ct. App. 520 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/01/2022 08:09 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520Velma Weyers and Gilbert Weyers, appellants,
v. Community Memorial Hospital, Inc.,
doing business as Syracuse Area
Health et al., appellee.
___ N.W.2d ___
Filed January 25, 2022. No. A-21-132.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted 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. Partnerships: Proof. The objective indicia of co-ownership are com-
monly considered to be (1) profit sharing, (2) control sharing, (3) loss
sharing, (4) contribution, and (5) co-ownership of property. The five indi-
cia of co-ownership are only that—they are not all necessary to establish
a partnership relationship, and no single indicium of ­co-ownership is
either necessary or sufficient to prove co-ownership.
3. Joint Ventures: Partnerships: Contribution. A joint venture or enter-
prise is in the nature of a partnership and exists when two or more
persons contribute cash, labor, or property to a common fund with the
intention of entering into some business or transaction for the pur-
pose of making a profit to be shared in proportion to the respective
contributions.
4. Joint Ventures. Each of the parties in a joint venture or enterprise must
have equal voice in the manner of its performance and control of the
agencies used therein, though one may entrust performance to the other.
5. Political Subdivisions Tort Claims Act: Jurisdiction. While not a
jurisdictional prerequisite, the filing or presentment of a claim to the
appropriate political subdivision is a condition precedent to commence-
ment of a suit under the Political Subdivisions Tort Claims Act.
6. Health Care Providers: Claims: Political Subdivisions Tort Claims
Act. The operation of the Nebraska Hospital-Medical Liability Act
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WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520does not excuse compliance with the requirement under the Political
Subdivisions Tort Claims Act that a claim be presented to the political
subdivision prior to filing suit.
7. Political Subdivisions Tort Claims Act: Limitations of Actions. For
purposes of Neb. Rev. Stat. § 13-919(1) (Reissue 2012), a cause of
action accrues, thereby starting the period of limitations, when a poten-
tial plaintiff discovers, or in the exercise of reasonable diligence should
discover, the political subdivision’s negligence.
8. Equity: Estoppel. The doctrine of equitable estoppel rests largely on the
facts and circumstances of the particular case.
9. ____: ____. The doctrine of equitable estoppel will not be invoked
against a governmental entity except under compelling circumstances
where right and justice so demand. In such cases, the doctrine is to be
applied with caution and only for the purpose of preventing manifest
injustice.
10. Equity: Estoppel: Pleadings: Appeal and Error. Equitable estoppel is
an affirmative defense and must be raised in the pleadings to be consid-
ered by a trial court and on appeal.
11. Appeal and Error. In general, appellate courts do not consider argu-
ments and theories raised for the first time on appeal. Thus, when an
issue is raised for the first time in an appellate court, it will be disre-
garded inasmuch as a lower court cannot commit error in resolving an
issue never presented and submitted to it for disposition.
12. Courts: Appeal and Error. The Nebraska Court of Appeals does not
have authority to reverse the holdings of the Nebraska Supreme Court.
13. Malpractice: Limitations of Actions. Under the occurrence rule, a pro-
fessional malpractice action accrues and the statute of limitations begins
to run when the allegedly wrongful act or omission occurs.
14. ____: ____. Under the continuing treatment exception to the occur-
rence rule, the statute of limitations does not begin to run until the
act complained of, and any resulting subsequent treatment therefor, is
completed.
15. Negligence: Malpractice: Limitations of Actions. The continuous
treatment doctrine applies either when there has been a misdiagnosis
upon which incorrect treatment is given or when there has been a con-
tinuing course of negligent treatment. It does not apply where there have
been only isolated acts of negligence.
Appeal from the District Court for Otoe County: Vicky L.
Johnson, Judge. Affirmed.
Christopher S. Bartling, of Bartling & Hinkle, P.C., for
appellants.
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WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520Robert A. Mooney and Emily E. Palmiscno, of Sodoro,
Mooney & Lenaghan, L.L.C., for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
The district court for Otoe County granted the motion for
summary judgment of Community Memorial Hospital, Inc.
(CMH, Inc.); Velma Weyers and Gilbert Weyers (collectively
appellants) appeal from that order. For the reasons that follow,
we affirm.
BACKGROUND
In February 2018, Velma underwent knee surgery at CMH,
Inc., in Syracuse, Nebraska. The day after surgery, while
Velma was recovering at the hospital, she fell from a hospital
bed while under sedation and was injured. In December 2019,
appellants filed a complaint against “[CMH, Inc.,] doing busi-
ness as Syracuse Area Health, Community Memorial Hospital,
and Community Memorial Hospital District.” The complaint
alleged that Velma was entitled to compensation under theo-
ries of negligence and res ipsa loquitur, and Gilbert raised a
related loss of consortium claim. The complaint also waived
the right to a medical review panel “to the extent that any
Defendant is registered and is qualified under the Nebraska
Hospital-Medical Liability Act” (NHMLA), see Neb. Rev. Stat.
§ 44-2801 et seq. (Reissue 2021).
In January 2020, CMH, Inc., filed a motion to dismiss or, in
the alternative, a motion for summary judgment. Summarized,
the motion alleged that the complaint identified the wrong
defendant, as CMH, Inc., which is a private nonprofit corpo-
ration created to service the debt of the separate legal entity,
Community Memorial Hospital District (CMHD). The motion
alleged that CMH, Inc., “does not do business as Syracuse
Area Health, Community Memorial Hospital, or [CMHD].”
According to the motion, CMHD was the proper defendant,
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WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520as it was the entity that employed health care providers and
entered into a physician-patient relationship with Velma.
The district court convened for a hearing on the motion in
March 2020. Appellants moved for a continuance to conduct
further discovery, which was granted. The court reconvened
in June 2020, at which time appellants again moved for a
continuance to conduct further discovery, which motion was
also granted. CMH, Inc., objected to the request, noting, “This
is a political subdivision tort claim and the political subdivi-
sion was not properly served with a claim . . . .” Appellants
sent interrogatories, conducted depositions, and collected docu-
mentation regarding the legal relationship between the named
defendant, CMH, Inc., and the nonparty, CMHD.
The record shows that CMHD is a “community hospi-
tal” created pursuant to Neb. Rev. Stat. § 23-3547 (Reissue
2012) and is a political subdivision of the State of Nebraska.
CMHD was created by resolution of the Otoe County Board
of Commissioners in January 1973, following the results of a
special election in June 1972. Prior to November 2018, CMHD
operated “Community Memorial Hospital,” which was the
hospital where Velma sustained her injury. CMHD opened a
new hospital in November 2018 which operates as “Syracuse
Area Health.”
CMH, Inc., filed articles of incorporation with the Nebraska
Secretary of State in August 1992, identifying the nature of its
business as “Medical Care Facility Leasing.” Article III of the
1992 articles provides the following:
The exclusive purpose for which the corporation is
organized is to provide for, erect, own, lease, furnish,
equip and manage lands, grounds, and buildings located
in and for the exclusive possession, use, and benefit of
Community Memorial Hospital District, a body politic
and corporate of the County of Otoe in the State of
Nebraska.
Article V provides that CMH, Inc., “shall have no members”
and “shall be managed by the Board of Directors.” Article VI
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Cite as 30 Neb. App. 520provides that “[a]fter payment of all outstanding liabilities
and obligations of the corporation other than obligations to
[CMHD], the corporation shall donate and give to [CMHD] the
assets which the corporation then possesses.”
CMH, Inc., restated its corporate bylaws in August 2015,
stating its purpose “to act on behalf of and for the benefit of
[CMHD].” The 2015 bylaws reiterated that CMH, Inc., “shall
be managed by its Board of Directors” but added the following
provision:
[T]he Board of Directors shall not take the following
action(s) without obtaining the prior approval of the
[CMHD] Board of Directors:
a. Sell all or substantially all of [CMH, Inc.’s] assets.
b. Enter into any financing or loan agreement encum-
bering [CMH, Inc.’s] assets.
c. Enter into any affiliation agreement or other arrange-
ment with another hospital entity.
d. Amend these Restated Bylaws.
Under the 2015 bylaws, “a Director may be removed with or
without cause by vote of the [CMHD] Board of Directors.”
Further, “[n]o Director shall receive compensation for his or
her service as a Director.” The articles also provide for various
officers and respective duties, adding that “[CMHD] employ-
ees and other individuals may assist [CMH, Inc.’s] officers in
the performance of their duties hereunder as may be from time
to time requested.”
The president and chief executive officer of CMHD, Michael
Harvey, identified CMH, Inc., as a “debt-servicing corpora-
tion” which services CMHD’s debts. Harvey explained that as
a political subdivision, CMHD cannot obtain a bank loan and
instead would need voter approval to issue bonds if it wanted
to take on substantial debt. However, CMH, Inc., as a private
corporation, is able to obtain private financing without voter
approval. Harvey explained that once CMH, Inc., obtained
funding and purchased property, it was necessary for CMH,
Inc., to retain ownership as “collateral for the loan.”
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WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520The record contains two lease agreements between CMH,
Inc., and CMHD. Under the first lease agreement and sup-
plemental lease agreement, executed in 1992, CMH, Inc.,
leased property to CMHD for the operation of Community
Memorial Hospital in exchange for a monthly rent payment
of $12,100. The agreement further provided that the base rent
could be increased “[i]n the event Basic Rent is not sufficient
in amount” to cover payments on the outstanding loan obliga-
tions. The lease was to “continue until the payment in full of
all principal and interest on the Notes and any indebtedness or
obligations . . . issued to refund the Notes.” The term “‘Notes’”
was defined as CMH, Inc.’s “Construction Notes, Series 1992,
in the initial amount of $950,000 issued pursuant to the Trust
Agreement.” The term “‘Trust Agreement’” was defined as “the
Trust Agreement between [CMH, Inc.,] and [National Bank of
Commerce Trust and Savings Association] dated September 1,
1992, pursuant to which the Notes were issued.”
Under the second lease, executed in 2016, CMH, Inc., once
again leased property to CMHD in exchange for a “contribu-
tion,” which was defined as “the amounts, however charac-
terized, as are contributed by [CMHD] to [CMH, Inc.,] from
time to time and used by [CMH, Inc.,] to acquire some or
all of the Real Estate and/or the Project.” The “project” was
defined as “the construction of a replacement hospital facil-
ity in Syracuse, Nebraska.” The agreement further provides
that “[CMHD] agrees to make additional rental payments
. . . in an amount equal to the aggregate principal amount of
the Obligations and . . . an amount equal to interest on the
Obligations.” The term “obligations” was defined as “any evi-
dence of indebtedness incurred by [CMH, Inc.,] for purposes
of financing or refinancing the Hospital, which is expected
to consist of (but shall not be limited to) interim construction
and permanent financing to be provided through one or more
loans from USDA.” The term “hospital” was defined as “the
Real Estate, Improvements, and Personal Property currently
existing on the property or to be constructed in the future by
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Cite as 30 Neb. App. 520either [CMH, Inc.,] or [CMHD].” The 2016 lease also contains
a provision granting CMHD an option to purchase the hospi-
tal property for $1 provided that no debt obligations remain
outstanding.
Corroborating the terms of the lease agreements, Harvey
testified that the rent payments CMHD paid to CMH, Inc.,
were determined by the amount of the loan payments CMH,
Inc., was making on CMHD’s behalf. Harvey further testified
that CMHD was responsible for “[a]ll operational expenses
of the hospital and clinics” and that CMH, Inc., did not have
any control over the business of “seeing and treating patients
in exchange for a fee.” In his affidavit, Harvey attested that
“[a]t all times material to the allegations of the Complaint,
[CMH, Inc.,] did not employ any healthcare physicians,
nurses, or staff [and] [n]o healthcare provider-patient relation-
ship existed between [CMH, Inc.,] and patients of [CMHD],
including [Velma].”
The court reconvened in August 2020, electing to consider
the evidence and treat CMH, Inc.’s motion as a motion for
summary judgment. In January 2021, the court entered an
order granting CMH, Inc.’s motion for summary judgment.
The court observed that CMHD, and not CMH, Inc., was doing
business as Community Memorial Hospital when Velma was
injured. The court found that CMH, Inc., “is not a hospital or
licensed healthcare facility . . . did not employ any medical
personnel and did not provide medical care to [Velma].” Thus,
the court found, CMH, Inc., “cannot be sued for negligence
or loss of consortium” because CMH, Inc., “owed no duty
to [Velma].”
The court went on to note that a plaintiff is generally
allowed to amend a lawsuit to add a new defendant, “unless it
would be futile,” citing Bailey v. First Nat. Bank of Chadron,
16 Neb. App. 153, 741 N.W.2d 184 (2007). The court found
that granting leave to amend the complaint in this case would
be futile because appellants failed to comply with the require-
ments of the Political Subdivisions Tort Claims Act (PSTCA),
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WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012 & Cum. Supp.
2020). Specifically, appellants failed to serve CMHD with
written notice of their claims within 1 year of accrual. Rather,
appellants filed their lawsuit in December 2019, “almost ten
months after the deadline” to serve CMHD with notice of their
claims. Accordingly, the court granted CMH, Inc.’s motion for
summary judgment and dismissed the complaint with preju-
dice. Appellants now appeal.
ASSIGNMENT OF ERROR
Appellants assign, restated, that the district court erred in
granting summary judgment.
STANDARD OF REVIEW
[1] An appellate court will affirm 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. Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d
789 (2015).
ANALYSIS
It is undisputed that CMHD is a political subdivision of the
State of Nebraska, subject to the PSTCA. Appellants do not
argue that they complied with the requirements of the PSTCA.
Rather, appellants raise a number of arguments in an effort to
save the lawsuit despite the apparent defect under the PSTCA.
In their first three arguments, appellants generally assert
that it was proper to name CMH, Inc., as the sole defendant.
First, appellants argue CMH, Inc., owed Velma a duty of
care on the grounds that “[b]oth [CMH, Inc.,] and [CMHD]
were responsible for management of Community Memorial
Hospital [and that CMH, Inc.,] was responsible for oversight
of the hospital and responsible for the hospital activities in
order to ensure the hospital could pay its bills and continue to
profit.” Brief for appellants at 16. In support of this argument,
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Cite as 30 Neb. App. 520appellants correctly point out that “[t]he hospital had a duty to
furnish [Velma] with a properly functioning hospital bed and
equipment, and . . . to select and review the competency of
the employees, agents and staff members providing [Velma’s]
care.” Id. Appellants continue, “[Velma] received negligent
treatment in the hospital, and therefore the hospital breached
its duty of care to [Velma].” Id.We agree that if Velma suffered from negligent treatment,
then “the hospital” would have breached its duty of care.
However, we disagree that naming CMH, Inc., as the sole
defendant was adequate to prosecute claims of negligence
against “the hospital.” Rather, the record demonstrates that
CMH, Inc., is not a medical facility and does not employ any
medical providers. CMH, Inc., is a private nonprofit corpora-
tion created for the express purpose to service privately held
debts incurred on behalf of CMHD for the construction and
improvement of its hospitals. We acknowledge that CMH,
Inc., is the legal owner of property and equipment which
it leased to CMHD for operation of Community Memorial
Hospital. However, at the time of Velma’s injury, CMHD
maintained exclusive possession and control over the hospital
premises. Furthermore, CMHD was exclusively responsible for
employing medical providers and managing the provision of
medical care at the hospital.
[2] Appellants next argue that CMH, Inc., and CMHD
operated the hospital as a partnership. Under Neb. Rev. Stat.
§ 67-410(1) (Reissue 2018), a partnership is formed by “the
association of two or more persons to carry on as co-owners
a business for profit . . . whether or not the persons intend to
form a partnership.” The objective indicia of co-ownership are
commonly considered to be (1) profit sharing, (2) control shar-
ing, (3) loss sharing, (4) contribution, and (5) co-ownership
of property. In re Dissolution & Winding Up of KeyTronics,
274 Neb. 936, 744 N.W.2d 425 (2008). The five indicia of
co-ownership are only that—they are not all necessary to
establish a partnership relationship, and no single indicium
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Cite as 30 Neb. App. 520of co-ownership is either necessary or sufficient to prove
­co-ownership. Id.With regard to profit sharing, appellants point out that
CMHD “receives the revenue from patient services and hospi-
tal business” but that CMHD “transfers the profits to [CMH,
Inc.,] in order to pay hospital debt and expenses.” Brief
for appellants at 17. However, the record demonstrates that
rental payments from CMHD to CMH, Inc., were intended to
cover solely the expenses incurred by CMH, Inc., in servicing
CMHD’s debts. CMH, Inc., is a nonprofit corporation without
any employees and whose directors are prohibited from accept-
ing compensation. CMH, Inc., and CMHD did not carry on as
co-owners of a business for profit; rather, their relationship was
more akin to that of creditor and debtor (or landlord and ten-
ant). Under these circumstances, the evidence does not support
a finding of partnership status.
With regard to control sharing, appellants argue that CMH,
Inc., and CMHD “share control by way of joint board meetings
to make the policy and procedural decisions for the hospital,
and the lease . . . requires [CMHD] to follow the operating and
employment procedures as may be adopted by [CMH, Inc.]”
Id. It is true that CMH, Inc., and CMHD held a number of joint
board meetings beginning in January 2018 and do continue
to meet on an annual basis. However, Harvey explained that
“[w]ith [CMH, Inc.,] being the landlord . . . it was just easiest
for the [CMH, Inc.,] board to get feedback from [CMHD] by
having joint board meetings about the design and construction
process.” Harvey further testified that the CMH, Inc., board
would adjourn after business related to the construction and
design was finished, leaving only the CMHD board to address
other matters of hospital business.
It is also true that the 1992 lease agreement includes a provi-
sion which reads as follows:
It is expressly understood that [CMHD] shall manage
and operate the facilities as a hospital and abide by all
the rules and regulations set forth under the laws of the
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Cite as 30 Neb. App. 520State of Nebraska and the United States of America, and
such operating and employment procedures as may be
adopted by [CMH, Inc.,] from time to time.
However, there is no evidence that such “operating and
employment procedures” have ever been proposed or adopted
by CMH, Inc., and there is no similar provision in the updated
2016 lease. Nevertheless, the record otherwise makes clear that
CMH, Inc., and its board of directors are subject to control
and oversight by CMHD and that CMHD exercises exclusive
control over day-to-day hospital operations and the provision
of care. Again, under these circumstances, the evidence does
not support a finding of partnership status between CMH, Inc.,
and CMHD.
With regard to loss sharing, appellants argue that CMH, Inc.,
“holds all hospital debt, and so would be obligated to its lender
in event of any losses,” such that “[l]osses of revenue would
decrease the amount of income received by [CMH, Inc.]” Brief
for appellants at 17. However, the record demonstrates that the
amount of payments received by CMH, Inc., is linked to the
outstanding obligations on debt held by CMH, Inc., and not
to CMHD’s revenue in any given month. Moreover, both the
1992 and 2016 leases contain robust indemnification provi-
sions under which CMHD agreed to indemnify and save CMH,
Inc., harmless from and against all losses and liabilities, to the
extent permitted by law. Under these circumstances, as stated
above, the evidence does not support the argument that CMH,
Inc., and CMHD engaged in loss sharing evidencing partner-
ship status.
With regard to contribution, appellants argue that CMH,
Inc., “contributes the property and physical assets, along with
decision making by its board of directors and officers; [CMHD]
contributes its board of directors and officers to help manage
hospital operations.” Brief for appellants at 17. However, the
record demonstrates that CMHD’s board of directors does
much more than “help manage hospital operations.” Rather,
CMHD is the hospital’s governing body and is exclusively
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Cite as 30 Neb. App. 520responsible for employing providers and operating hospital
facilities. Aside from its servicing the debt which facilitated the
hospital’s construction and subsequent purchases of equipment,
we are hard pressed to say that CMH, Inc., plays any role in
hospital operations. Under these circumstances, the evidence
does not support the argument that CMH, Inc., and CMHD
engaged in contribution evidencing partnership status.
Finally, with regard to co-ownership of property, appel-
lants emphasize that CMH, Inc., “is the owner of the hospital
property and is entitled to all the hospital revenue.” Id. First,
we acknowledge that CMH, Inc., is the sole owner of hospital
property that serves as collateral for the debt it services on
CMHD’s behalf. CMHD then leases that property for its exclu-
sive use in operation of the hospital. While it is not entirely
clear where appellants find support for the latter half of their
statement, it appears they cite a provision in the 1992 lease
which provides that “[a]ll reserve, depreciation, debt payment
and surplus funds shall be transferred to [CMH, Inc.,] on a
monthly basis in addition to the monthly rental provided for
herein, which funds shall be maintained by [CMH, Inc.,] for
the purpose of debt retirement.” Whatever the import of this
provision when it was written, the record is clear that CMH,
Inc., receives monthly rental payments in amounts neces-
sary to service the outstanding obligations on CMHD’s debt.
Neither the landlord-tenant relationship between CMH, Inc.,
and CMHD nor the rental payments related thereto amount to
joint ownership of property evidencing partnership status.
We conclude the record does not support appellants’ conten-
tion that Community Memorial Hospital operated as a partner-
ship between CMH, Inc., and CMHD. While there is certainly
an “association” between the two entities, we cannot say the
two entities carry on as co-owners of the hospital business for
profit. At no point did CMH, Inc., exercise meaningful con-
trol over the day-to-day operations at Community Memorial
Hospital. Rather, CMH, Inc., engaged in the limited business
of servicing CMHD’s privately held debt. Moreover, CMH,
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Cite as 30 Neb. App. 520Inc., was at all times subject to substantial oversight from
CMHD itself. CMH, Inc.’s own bylaws precluded its board of
directors from taking certain major actions without CMHD’s
approval, and CMHD was entitled to remove CMH, Inc.’s
directors with or without cause.
[3,4] We turn then to appellants’ next argument, that CMH,
Inc., and CMHD operated as a joint venture. A joint venture
or enterprise is in the nature of a partnership and exists when
two or more persons contribute cash, labor, or property to a
common fund with the intention of entering into some busi-
ness or transaction for the purpose of making a profit to be
shared in proportion to the respective contributions. Lackman
v. Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999). Each of the
parties in a joint venture or enterprise must have equal voice
in the manner of its performance and control of the agen-
cies used therein, though one may entrust performance to the
other. Id.We conclude the record does not support appellants’ conten-
tion that CMH, Inc., and CMHD operated as a joint venture,
for many of the same reasons we conclude the two entities did
not operate as a partnership. Additionally, the record is clear
that CMH, Inc., and CMHD did not jointly enter the hospital
business for the purpose of making a profit to be shared pro-
portionately. Rather, CMHD entered into the hospital business
upon the assent of the voting public and the authorization by
the Otoe County Board of Commissioners and CMH, Inc.,
entered into the “Medical Care Facility Leasing” business upon
the direction of CMHD. Moreover, it is also clear that CMH,
Inc., and CMHD do not have “an equal voice” in the perform­
ance of hospital business.
Altogether, it is clear from the record that CMHD, doing
business as Community Memorial Hospital, was the entity
with which Velma entered into a provider-patient relationship
and was thus the entity which owed Velma a duty of care.
Accordingly, we conclude the district court did not err in find-
ing that CMH, Inc., owed no duty to Velma and that CMHD
was the proper party defendant.
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Cite as 30 Neb. App. 520[5-7] As a political subdivision of the State of Nebraska,
CMHD was entitled to timely notice of appellants’ claims
under the PSTCA. Section 13-905 of the PSTCA provides that
“[a]ll tort claims . . . shall be filed with the clerk, secretary, or
other official whose duty it is to maintain the official records
of the political subdivision.” Section 13-919(1) provides that
“[e]very claim against a political subdivision permitted under
the [PSTCA] shall be forever barred unless within one year
after such claim accrued the claim is made in writing to the
governing body.” Furthermore, “all suits permitted by the act
shall be forever barred unless begun within two years after
such claim accrued.” § 13-919(1). While not a jurisdictional
pre­requisite, the filing or presentment of a claim to the appro-
priate political subdivision is a condition precedent to com-
mencement of a suit under the PSTCA. Keller v. Tavarone, 262
Neb. 2, 628 N.W.2d 222 (2001). The operation of the NHMLA
does not excuse compliance with the requirement under the
PSTCA that a claim be presented to the political subdivision
prior to filing suit. See Keller v. Tavarone, supra. Accord
Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).
For purposes of § 13-919(1), a cause of action accrues, thereby
starting the period of limitations, when a potential plaintiff
discovers, or in the exercise of reasonable diligence should dis-
cover, the political subdivision’s negligence. Polinski v. Omaha
Pub. Power Dist., 251 Neb. 14, 554 N.W.2d 636 (1996).
In this case, appellants’ claims accrued in February 2018,
when Velma was injured. Thus, appellants were required by
statute to serve CMHD with their written claims by February
2019. Only if appellants had satisfied this condition prec-
edent would they have been entitled to file a lawsuit within
the 2-year statutory limitation. Appellants filed their lawsuit
in December 2019, which was within the 2-year statutory
period. However, because appellants failed to comply with the
notice requirement, their lawsuit was fatally premature and the
deadline to serve CMHD with their claims had already been
surpassed by more than 9 months. Thus, we agree with the
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WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520district court that allowing leave to amend the lawsuit would
have been futile.
Much was made, both before the district court and now
on appeal, of the legal relationship between CMH, Inc., and
CMHD. However, the dispositive flaw in appellants’ lawsuit
remains that it was not preceded by timely notice to CMHD
as required by the PSTCA. Appellants raise four arguments
asserting that their lawsuit was filed in a timely manner.
[8-10] First, appellants argue that CMH, Inc., should be
equitably estopped from relying on appellants’ failure to give
timely notice of their claims on the ground that “Community
Memorial Hospital had actual notice of [appellants’] claims
because it reported [Velma’s] claim to . . . insurance.” Brief
for appellants at 18. The doctrine of equitable estoppel rests
largely on the facts and circumstances of the particular case.
Gard v. City of Omaha, 18 Neb. App. 504, 786 N.W.2d 688(2010). The doctrine of equitable estoppel will not be invoked
against a governmental entity except under compelling circum-
stances where right and justice so demand. Id. In such cases,
the doctrine is to be applied with caution and only for the pur-
pose of preventing manifest injustice. Id. Equitable estoppel is
an affirmative defense and must be raised in the pleadings to
be considered by a trial court and on appeal. Id.[11] In this case, appellants’ pleadings do not allege equi-
table estoppel. Moreover, at oral argument, counsel for appel-
lants conceded that equitable estoppel was raised for the first
time on appeal. In general, appellate courts do not consider
arguments and theories raised for the first time on appeal. In
re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).
Thus, when an issue is raised for the first time in an appellate
court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submit-
ted to it for disposition. Eletech, Inc. v. Conveyance Consulting
Group, 308 Neb. 733, 956 N.W.2d 692 (2021). Accordingly,
we decline to address appellants’ argument regarding equi-
table estoppel.
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30 Nebraska Appellate Reports
WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520Appellants next argue that “Community Memorial Hospital
qualified under the [NHMLA]” which served as Velma’s
“exclusive remedy against the hospital.” Brief for appellants
at 19. The NHMLA defines the term “health care provider,”
in pertinent part, as “a hospital.” § 44-2803(4). Thus, we
agree that Community Memorial Hospital qualified under the
NHMLA, but the persistent problem in this case is that CMH,
Inc., is a separate legal entity from CMHD, the latter of which
is the governing body of the hospital. Accordingly, while the
hospital itself certainly qualified under the NHMLA, CMH,
Inc., did not.
[12] Moreover, as discussed above, the Nebraska Supreme
Court has made clear that operation of the NHMLA does
not excuse compliance with the notice requirements of the
PSTCA. Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222(2001). Appellants acknowledge the cases discussing this rule
but argue that “these findings should be reversed.” Brief for
appellants at 19. However, until such time as those cases
are reversed, we are bound to follow them and appellants’
argument under the NHMLA is without merit. See State v.
LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995) (Nebraska Court
of Appeals does not have authority to reverse holdings of the
Nebraska Supreme Court).
Appellants next argue that the time to file their claim
should have been extended under § 13-919(2). However, at
oral ­argument, counsel for appellants conceded that this argu-
ment was also raised for the first time on appeal. Thus, we
decline to address appellants’ argument under § 13-919(2). See
In re Estate of Graham, supra (in general, appellate courts do
not consider arguments and theories raised for first time on
appeal).
[13-15] Finally, appellants argue their claims were timely
filed under the “continuing treatment exception” to the occur-
rence rule found in § 44-2828. Under the occurrence rule,
a professional malpractice action accrues and the statute of
limitations begins to run when the allegedly wrongful act or
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30 Nebraska Appellate Reports
WEYERS v. COMMUNITY MEMORIAL HOSP.
Cite as 30 Neb. App. 520omission occurs. Healy v. Langdon, 245 Neb. 1, 511 N.W.2d
498 (1994). However, under the continuing treatment exception
to the occurrence rule, the statute of limitations does not begin
to run until the act complained of, and any resulting subsequent
treatment therefor, is completed. See id. The continuous treat-
ment doctrine applies either when there has been a misdiagnosis
upon which incorrect treatment is given or when there has been
a continuing course of negligent treatment. Frezell v. Iwersen,
231 Neb. 365, 436 N.W.2d 194 (1989). It does not apply where
there have been only isolated acts of negligence. Id.In this case, appellants argue that Velma underwent treat-
ment for her injuries until spring 2019, such that the statute of
limitations should not have begun to run until then. However,
appellants do not allege any negligence aside from that related
to Velma’s initial fall in February 2018. Thus, the continuing
treatment exception does not apply to the circumstances of
this case and appellants’ argument to the contrary is with-
out merit.
Because appellants failed to file timely notice of their
claims with CMHD, their claims are barred and the district
court did not err in granting CMH, Inc.’s motion for summary
judgment.
CONCLUSION
For the foregoing reasons, we conclude the district court did
not err in granting CMH, Inc.’s motion for summary judgment.
Affirmed.