Bonness v. Armitage , 305 Neb. 747 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
07/17/2020 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BONNESS v. ARMITAGE
Cite as 305 Neb. 747
Richard K. Bonness, appellant, v.
Joel D. Armitage, M.D., appellee.
___ N.W.2d ___
Filed May 8, 2020. No. S-19-393.
1. Rules of the Supreme Court: Pleadings: Waiver: Appeal and Error.
When a question concerning the waiver of an affirmative defense
involves the interpretation of rules of pleading, it is a question of law
reviewed de novo.
2. Limitations of Actions: Pleadings. A challenge that a pleading is
barred by the statute of limitations is a challenge that the pleading fails
to allege sufficient facts to constitute a claim upon which relief can
be granted.
3. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss on the pleadings is reviewed de novo, accepting the
allegations in the complaint as true and drawing all reasonable infer-
ences in favor of the nonmoving party.
4. Appeal and Error. As a general rule, a Nebraska appellate court does
not consider an argument or theory raised for the first time on appeal.
5. Waiver: Estoppel. Ordinarily, to establish a waiver of a legal right,
there must be a clear, unequivocal, and decisive act of a party showing
such a purpose, or acts amounting to an estoppel on his or her part.
6. Limitations of Actions: Words and Phrases. “Discovery,” in the con-
text of statutes of limitations, refers to the fact that one knows of the
existence of an injury and not that one has a legal right to seek redress.
It is not necessary that a plaintiff have knowledge of the exact nature or
source of the problem, but only that a problem existed.
7. Limitations of Actions: Malpractice: Words and Phrases. In a profes-
sional negligence case, “discovery of the act or omission” occurs when
the party knows of facts sufficient to put a person of ordinary intel-
ligence and prudence on inquiry which, if pursued, would lead to the
knowledge of facts constituting the basis of the cause of action.
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8. Malpractice: Damages: Words and Phrases. In a cause of action for
professional negligence, legal injury is the wrongful act or omission
which causes the loss. Legal injury is not damage; damage is the loss
resulting from the misconduct.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed.
Patrick J. Cullan and Joseph P. Cullan, of Cullan & Cullan,
L.L.C., for appellant.
David A. Blagg, Brien M. Welch, and Kathryn J. Cheatle, of
Cassem, Tierney, Adams, Gotch & Douglas, for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Papik, J.
Richard K. Bonness appeals the district court’s dismissal
of his medical malpractice action against Joel D. Armitage,
M.D., on statute of limitations grounds. Bonness contends
that Armitage waived the statute of limitations defense and
that even if he did not, his complaint should not have been
dismissed. We disagree and affirm the decision of the dis-
trict court.
BACKGROUND
Commencement of Action and
Initial Procedural History.
This case began on June 20, 2017, when Bonness filed
his initial complaint against Armitage. The initial complaint
generally alleged that Armitage had failed to timely diagnose
Bonness with prostate cancer.
The attorney who filed the initial complaint on behalf of
Bonness later moved to withdraw, and new counsel entered an
appearance. The district court subsequently granted Bonness
leave to file an amended complaint. Bonness did so in January
2018. The amended complaint contained additional factual
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BONNESS v. ARMITAGE
Cite as 305 Neb. 747
allegations, but also generally alleged that Armitage had failed
to timely diagnose Bonness with prostate cancer. Armitage
filed an answer later that month in which he denied negligence
and also asserted that the claims alleged were barred by the
professional negligence statute of limitations.
After the filing of the first amended complaint, the par-
ties engaged in discovery for some time. In November 2018,
Bonness filed a motion for leave to file a second amended
complaint. In the motion, he asserted that the proposed second
amended complaint would reflect new information learned dur-
ing discovery. Armitage did not object to the motion for leave
to file a second amended complaint. The district court granted
the motion, and Bonness filed the second amended complaint.
Because the second amended complaint is the operative com-
plaint for purposes of this appeal, we summarize its allegations
in greater detail below.
Second Amended Complaint.
In the second amended complaint, Bonness alleged that he
had a family history of prostate cancer and that his father had
died of prostate cancer at the age of 68. Following his father’s
death in 1995 until 2010, Bonness underwent “Prostate‑Specific
Antigen” (PSA) tests several times while he was seen by physi-
cians other than Armitage. According to the second amended
complaint, a PSA test measures the level of PSA in the blood-
stream and can serve as an early indicator of prostate cancer,
because the level of PSA in the blood is often elevated in men
with prostate cancer. In 2007, one of those other physicians
referred Bonness to a urologist because of an elevated PSA test
and a hardened area on his prostate. The urologist determined
that there was no cancer.
In late 2010, Armitage became Bonness’ physician. The sec-
ond amended complaint alleged that “based on . . . Bonness’
desire to do everything necessary to screen for prostate can-
cer,” Bonness and Armitage “agreed to a health plan that
entailed utilizing the most effective preventative cancer care
for the early detection of prostate cancer.” Armitage allegedly
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told Bonness that he would implement the plan in accordance
with protocols in place at a university medical center.
Bonness alleged that during his initial visit with Armitage,
Bonness informed Armitage that Bonness had a family his-
tory of prostate cancer, that he had been taking the medica-
tion commonly known as Avodart for many years, that he had
undergone PSA testing earlier in the year, and that his PSA at
that time was 3.0 ng/mL. Armitage noted in his records that he
would perform PSA testing on Bonness on a yearly basis, but
would not perform the testing that day, because Bonness had
already been tested that year. Armitage also continued to pre-
scribe Avodart for Bonness.
Bonness alleged that at the time of his first appointment
with Armitage, the federal Food and Drug Administration was
warning physicians that if taken for more than 6 months,
Avodart decreases an individual’s PSA level by about 50 per-
cent. According to the second amended complaint, Avodart’s
effect on PSA levels requires physicians to double the value of
PSA levels for purposes of testing for the presence of prostate
cancer. Accordingly, Bonness alleged that his PSA test of 3.0
ng/mL in 2010 should have been interpreted as 6.0 ng/mL.
Bonness also alleged that a patient with an adjusted PSA value
of 6.0 ng/mL should be referred to a urologist, presumably for
further testing.
Bonness alleged that he relied on Armitage’s representation
that there was no need to perform additional PSA testing in
2010. Bonness further alleged that Armitage affirmatively rep-
resented to him in 2011 that PSA testing was not immediately
necessary and that he relied on that representation. Bonness
also alleged that in 2013, Armitage affirmatively represented
to him that PSA testing was “deemed unreliable” and that it
was not necessary to perform the test and that Bonness relied
on those representations as well. Bonness alleged that he spe-
cifically inquired of Armitage whether PSA testing should be
performed in 2010, 2011, and 2013.
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Armitage later claimed that Bonness refused to undergo PSA
testing in 2010, 2011, and 2013, but Bonness denied refusing
and also alleged that Armitage should have known that he
desired testing. He asserted that Armitage should have known
he wished to be tested based on Bonness’ family history of
prostate cancer, the death of his father from prostate cancer,
Bonness’ concerns regarding friends who had been diagnosed
with prostate cancer, his “repeated, express concerns about the
risk to himself of having prostate cancer,” and his “expressed
willingness to do, or have done, whatever was necessary” to
detect and treat prostate cancer.
Bonness alleged that in 2014, Armitage reversed course and
affirmatively represented to him that PSA testing was now
warranted. Bonness then underwent PSA testing. His PSA
level was over 5.0 ng/mL, a level the second amended com-
plaint characterized as “elevated.” In 2015, Bonness under-
went additional PSA testing and his PSA level was more
than 6.0 ng/mL, a level the second amended complaint also
characterized as “elevated.” Bonness alleged that as a result
of his elevated PSA levels, he underwent a prostate biopsy
on January 9, 2015, which revealed the presence of cancer. In
March 2015, Bonness then underwent a radical prostatectomy.
Bonness alleged that after this procedure, he was told he was
cancer free.
Bonness had additional PSA testing performed in April, May,
and June 2016. Based on PSA testing performed in June 2016,
Bonness was informed that his prostate cancer had recurred.
Based on these facts, Bonness alleged that Armitage was
liable for negligence and for failure to obtain his informed
consent to the treatment provided. With respect to his claim of
negligence, Bonness alleged that the most effective preventa-
tive cancer care for prostate cancer would have included PSA
testing in 2010, 2011, and 2013. He also alleged that because
he was taking Avodart, his PSA test results in 2010 should
have been doubled. He contended that given his PSA test
results in 2010 and Bonness’ family history of prostate cancer,
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BONNESS v. ARMITAGE
Cite as 305 Neb. 747
Armitage should have immediately referred him to a urologist.
With respect to his claim of failure to obtain informed consent,
he also alleged that Armitage should have provided him with
information regarding the risks to Bonness of not having regu-
lar PSA tests in light of his family history of prostate cancer
and the effect of Avodart on PSA test results.
Bonness alleged that it was only after the recurrence of his
prostate cancer that he learned of facts that led to the discovery
of his claims against Armitage.
Dismissal by District Court.
Armitage moved to dismiss the second amended complaint
pursuant to Neb. Ct. R. Pldg. § 6‑1112(b)(6). The motion to
dismiss asserted that the second amended complaint failed to
allege facts indicating that it was timely filed.
Following a hearing, the district court entered a written
order granting the motion to dismiss. The district court found
that Bonness’ claims were barred by the 2‑year professional
negligence statute of limitations set forth in Neb. Rev. Stat.
§ 25‑222 (Reissue 2016). The district court concluded that
Armitage’s allegedly deficient treatment would have been
known to Bonness by January 2015, when his prostate cancer
requiring surgical intervention was first discovered. The dis-
trict court wrote that by that date, Bonness would have known
that Armitage had been unable to prevent Bonness from get-
ting prostate cancer. Based on its determination that Bonness
discovered his claims in January 2015, the district court found
that he did not timely file his action.
Bonness timely appealed.
ASSIGNMENTS OF ERROR
Bonness assigns two errors on appeal, both concerning the
district court’s dismissal of his suit on statute of limitations
grounds. According to Bonness, the district court erred by
dismissing the suit, (1) because Armitage waived the statute of
limitations defense and (2) because Bonness did not discover
his claims until his cancer recurred in June 2016.
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BONNESS v. ARMITAGE
Cite as 305 Neb. 747
STANDARD OF REVIEW
[1] When a question concerning the waiver of an affirmative
defense involves the interpretation of rules of pleading, it is a
question of law reviewed de novo. See SFI Ltd. Partnership 8
v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
[2,3] A challenge that a pleading is barred by the statute
of limitations is a challenge that the pleading fails to allege
sufficient facts to constitute a claim upon which relief can
be granted. Carruth v. State, 271 Neb. 433, 712 N.W.2d 575
(2006). A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. Rutledge v. City of Kimball, 304
Neb. 593, 935 N.W.2d 746 (2019).
ANALYSIS
Did Armitage Waive Statute
of Limitations Defense?
[4] We begin our analysis by considering Bonness’ argu-
ment that Armitage waived the statute of limitations defense.
Initially, we note that nothing in our record indicates that
Bonness raised this argument in the trial court, and it is thus
not clear that it is properly preserved for appellate review.
See, e.g., State v. Kruse, 303 Neb. 799, 808, 931 N.W.2d
148, 155 (2019) (“[a]s a general rule, an appellate court will
not consider an argument or theory that is raised for the first
time on appeal”). But even assuming the argument is prop-
erly before us, we find that it lacks merit for reasons we
will explain.
A party can waive a statute of limitations defense. See, e.g.,
McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d
642 (2015). For example, a party waives a statute of limita-
tions defense if it fails to plead it. See id. In this case, however,
Bonness concedes that Armitage did not fail to plead a statute
of limitations defense. Armitage asserted in his answer to the
first amended complaint that Bonness’ claims were barred by
the statute of limitations. And although Armitage did not file an
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BONNESS v. ARMITAGE
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answer to the second amended complaint, he filed a motion to
dismiss on statute of limitations grounds.
Unable to liken this case to those in which a party fails to
plead a statute of limitations defense and thereby waives it,
Bonness argues that Armitage waived the statute of limita-
tions defense by not immediately moving to dismiss the first
amended complaint. According to Bonness, as soon as the
first amended complaint was filed, Armitage had all of the
information necessary to file a motion to dismiss on statute of
limitations grounds but instead engaged in discovery for sev-
eral months. This, Bonness contends, led him to believe that
Armitage was defending the case solely on its merits and thus
amounts to a waiver of the defense.
[5] Bonness acknowledges that he is unable to direct us to
any cases in which we or another court has held that a party
waived a statute of limitations defense by not immediately
filing a motion to dismiss on statute of limitations grounds.
Instead, Bonness relies on cases in which we have discussed
waiver in a general sense and said that “[o]rdinarily, to estab-
lish a waiver of a legal right, there must be a clear, unequivo-
cal, and decisive act of a party showing such a purpose, or acts
amounting to an estoppel on his or her part.” See, e.g., Eagle
Partners v. Rook, 301 Neb. 947, 959, 921 N.W.2d 98, 108
(2018). Bonness asserts that Armitage’s engaging in discov-
ery after the first amended complaint was filed qualifies as a
waiver under that standard.
We find Bonness’ contention that Armitage waived the stat-
ute of limitations defense unsound. As we noted in recounting
the standards of review applicable to this appeal, a challenge
to a pleading on statute of limitations grounds is a challenge
that the complaint fails to state a claim upon which relief
can be granted. Carruth v. State, 271 Neb. 433, 712 N.W.2d
575 (2006). This is relevant because our rules of pleading in
Nebraska state that “[a] defense of failure to state a claim
upon which relief can be granted . . . may be made in any
pleading permitted or ordered under § 6‑1107(a), or by motion
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for judgment on the pleadings, or at the trial on the merits.”
§ 6‑1112(h)(2). Our rules of pleading thus make clear that a
party does not waive the right to contend that a complaint fails
to state a claim upon which relief can be granted by not filing
a motion under § 6‑1112(b)(6). Rather, the defense is preserved
through trial. Accordingly, Armitage’s decision not to file a
motion to dismiss the first amended complaint could not have
amounted to an act showing an intention to waive the statute of
limitations defense.
Neither could it amount to an estoppel. Bonness’ estop-
pel theory is that he was led to believe that Armitage would
not seek to dismiss on statute of limitations grounds when he
did not immediately move to dismiss. For reasons we have
explained, however, Bonness could not reasonably conclude
from Armitage’s choice to engage in discovery that Armitage
would not later seek to contend that the pleading failed to show
it was filed in accordance with the statute of limitations. We
see no basis to find that Armitage waived the statute of limita-
tions defense.
Was Dismissal on Statute of
Limitations Grounds Proper?
Having found that Armitage did not waive the statute of lim-
itations defense, we turn to Bonness’ contention that the district
court erred by dismissing the case on statute of limitations
grounds. As we have discussed, a defendant may, as Armitage
did here, raise the statute of limitations as part of a motion to
dismiss for failure to state a claim upon which relief can be
granted. If such a motion is made but the complaint does not
disclose on its face that it is barred by the statute of limitations,
dismissal is improper. See Lindner v. Kindig, 285 Neb. 386,
826 N.W.2d 868 (2013). However, if the face of the complaint
does show that the cause of action is time barred and the plain-
tiff does not allege facts to avoid the bar of the statute of limi-
tations, dismissal is proper. See Chafin v. Wisconsin Province
Society of Jesus, 301 Neb. 94, 917 N.W.2d 821 (2018). The
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task before us is thus to review the second amended com-
plaint and determine whether, accepting the factual allegations
therein as true, it shows that the cause of action is barred by
the applicable statute of limitations. For the reasons discussed
below, we conclude that it does.
There appears to be some disagreement between the parties
as to whether the applicable statute of limitations is the profes-
sional negligence statute of limitations set forth in § 25‑222
or the statute of limitations in the Nebraska Hospital‑Medical
Liability Act set forth in Neb. Rev. Stat. § 44‑2828 (Reissue
2010). The parties agree, however, that those statutes of limita-
tions are identical as they relate to this case. Accordingly, we
will consider the case under § 25‑222, which provides:
Any action to recover damages based on alleged pro-
fessional negligence or upon alleged breach of warranty
in rendering or failure to render professional services shall
be commenced within two years next after the alleged act
or omission in rendering or failure to render professional
services providing the basis for such action; Provided,
if the cause of action is not discovered and could not be
reasonably discovered within such two‑year period, then
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; and provided further, that in no
event may any action be commenced to recover damages
for professional negligence or breach of warranty in ren-
dering or failure to render professional services more than
ten years after the date of rendering or failure to render
such professional service which provides the basis for the
cause of action.
Under the statute, an action must be commenced within 2
years of the date the limitations period began to run unless the
action was not or could not reasonably be discovered within
that 2‑year period, in which case, it must be commenced
within 1 year after it is discovered or should be discovered.
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See Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013).
As we will explain, the parties disagree in this case, both as to
when the statute of limitations began to run and when Bonness
discovered or reasonably could have discovered his claims
against Armitage.
Bonness argues that Armitage committed several isolated
acts of negligence and that a separate statute of limitations
period began to run upon each such act. Specifically, Bonness
contends that Armitage was negligent in 2010, 2011, and
2013, when he saw Bonness, but did not perform PSA testing,
did not properly interpret Bonness’ earlier PSA test results,
and did not refer him to a urologist. Bonness acknowledges
that under his theory, the 2‑year statute of limitations would
have expired as to his claims unless § 25‑222’s discovery
exception applies. But Bonness argues the discovery exception
does apply. He contends that he did not discover and could
not reasonably have discovered his claims until he learned his
prostate cancer had recurred on June 24, 2016. He thus argues
that he timely filed this action by filing it within 1 year of
that date.
Armitage disagrees with Bonness, as to both when the stat-
ute of limitations began to run and when he could have rea-
sonably discovered his claims. Armitage argues that under the
continuing treatment doctrine, see, e.g., Carruth v. State, 271
Neb. 433, 712 N.W.2d 575 (2006), the statute of limitations did
not begin to run on Bonness’ claims until January 2015, when
the professional relationship between Bonness and Armitage
concluded. Based on his contention that the statute of limita-
tions began to run in January 2015, Armitage asserts that even
if Bonness is correct that he could not reasonably have dis-
covered his claims until June 2016, his claims are nonetheless
barred, because the 1‑year discovery extension does not apply
if a plaintiff discovered or reasonably could have discovered
his or her claims prior to the expiration of the 2‑year statute of
limitations. See, e.g., Egan v. Stoler, 265 Neb. 1, 653 N.W.2d
855 (2002). Alternatively, Armitage argues that the district
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court was correct to conclude that based on the facts alleged
in the operative complaint, Bonness discovered or reasonably
could have discovered his claims in January 2015, and that
thus, his claims are barred even if the statute of limitations
began to run as early as Bonness contends.
[6‑8] We will begin our analysis by considering whether
the district court was correct to conclude that under the facts
alleged in the operative complaint, Bonness discovered or
reasonably could have discovered his claims in January 2015,
when he first learned of the presence of prostate cancer.
Several principles govern when a party discovers a claim for
statute of limitations purposes. “Discovery,” in the context
of statutes of limitations, refers to the fact that one knows
of the existence of an injury and not that one has a legal
right to seek redress. Guinn v. Murray, supra. It is not neces-
sary that a plaintiff have knowledge of the exact nature or
source of the problem, but only that a problem existed. Id.
In a professional negligence case, “discovery of the act or
omission” occurs when the party knows of facts sufficient
to put a person of ordinary intelligence and prudence on
inquiry which, if pursued, would lead to the knowledge of
facts constituting the basis of the cause of action. Id. In a
cause of action for professional negligence, legal injury is
the wrongful act or omission which causes the loss. Id. Legal
injury is not damage; damage is the loss resulting from the
misconduct. Id.
Given these governing principles, we must consider what
Bonness knew in January 2015 and whether a reasonable per-
son in his position with that knowledge would have pursued an
inquiry that would have led to knowledge of facts constituting
the basis of his claims. The first and most obvious fact that
Bonness knew at that time was that he had been diagnosed
with prostate cancer. The district court seemed to conclude
that Bonness had discovery of his claims based on his diag-
nosis alone. It reasoned that as soon as Bonness knew that he
had prostate cancer, he would have known that “the treatment
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provided by [Armitage] had not been effective in precluding
[Bonness’] development of prostate cancer.”
Although this statement of the district court is unquestion-
ably true, we find it does not shed much light on the question
at hand. Bonness does not allege that Armitage was negli-
gent because he failed to prevent prostate cancer; he alleges
that Armitage was negligent because he should have detected
prostate cancer earlier. It is not so clear to us that based on a
diagnosis of a condition alone, a patient is on inquiry notice
of a claim that his or her physician should have diagnosed
the condition earlier. We need not, however, decide whether
Bonness discovered his claims against Armitage based on a
diagnosis alone. As we will discuss below, the second amended
complaint disclosed that at the time of his diagnosis, Bonness
was aware of other information relevant to the discovery of
his claims.
At the time he was diagnosed with cancer in January 2015,
Bonness not only knew that he had been diagnosed, he also
knew what Armitage had done and not done with respect to
testing for prostate cancer before that diagnosis. As noted
above, Bonness alleged that before Armitage became his doc-
tor in 2010, he had undergone PSA testing for several years
at the direction of other physicians and, on one occasion, was
referred to a urologist for an elevated PSA result. Bonness
alleged Armitage did not direct PSA testing for several years
and represented to him in those years that PSA testing was
not immediately necessary and that it was “deemed unreli-
able.” Bonness also alleged, however, that elevated results
on PSA testing ordered by Armitage in 2014 and 2015 led to
the referral of Bonness to a urologist in early 2015 and his
prostate cancer diagnosis. By the time of his diagnosis, then,
Bonness would have known his diagnosis occurred as a result
of elevated levels on a test that he had previously received
regularly at the direction of other physicians, but that Armitage
had declined to perform for several years and had claimed
was unreliable.
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We also note that the second amended complaint con-
tains several other allegations regarding Bonness that suggest
a person in his position would have questioned Armitage’s
detection efforts as soon as a diagnosis was made. As noted
above, Bonness alleged that because members of his family
and friends had been diagnosed with prostate cancer, Bonness
repeatedly expressed concerns to Armitage about prostate can-
cer and made it clear that he wanted to do whatever was neces-
sary to detect it. In addition, in the years in which Armitage did
not order PSA testing, Bonness inquired about whether testing
should be performed. In our view, once Bonness was diagnosed
with cancer, a reasonable person in his position would have
known of facts sufficient to put a person of ordinary intelli-
gence and prudence on inquiry which, if pursued, would lead
to the knowledge of facts constituting the basis of the cause
of action.
We are not persuaded by Bonness’ argument that the fact that
he was told he was cancer free following surgery in March 2015
is relevant to the discovery analysis. The fact that Bonness was
told the cancer had been removed following surgery may have
affected the extent of damages available for Armitage’s alleged
negligence in failing to detect prostate cancer. The focus, how-
ever, in deciding when a plaintiff discovered a cause of action
for statute of limitations purposes is when the plaintiff knows
of the existence of an injury. See Guinn v. Murray, 286 Neb.
584, 837 N.W.2d 805 (2013). Injury, for these purposes, is the
wrongful act or omission which causes the loss, not damage.
See id. One need not know the extent of his or her damages to
have discovery. See Gering ‑ Ft. Laramie Irr. Dist. v. Baker,
259 Neb. 840, 612 N.W.2d 897 (2000).
Because we find that the face of the second amended
complaint shows that Bonness discovered his claims against
Armitage upon learning of his prostate cancer diagnosis in
January 2015, it is not necessary for us to pinpoint exactly
when the statute of limitations period began to run. Whether
the statute of limitations began running in January 2015, as
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Armitage contends, or earlier, as Bonness claims, the action
was not commenced within 2 years of accrual or within 1 year
of discovery.
CONCLUSION
Because the face of the complaint shows that the action is
barred by the statute of limitations, the district court did not
err in granting Armitage’s motion to dismiss.
Affirmed.
Miller‑Lerman, J., not participating.