Churchill v. Columbus Comm. Hosp.

Nebraska Advance Sheets
CHURCHILL v. COLUMBUS COMM. HOSP. 759
Cite as 285 Neb. 759
N.W.2d 34 (1996). The district court did not abuse its discre-
tion in denying Murante’s motion to amend.
The district court correctly determined that Murante was
liable to Mutual under the guaranty agreement for the amount
of Sutherlands’ indebtedness minus the credit bid from the
trustee’s sale. There are no material issues of fact, and Mutual
is entitled to judgment as a matter of law. Accordingly, the
district court did not err in sustaining Mutual’s motion for sum-
mary judgment. See Zawaideh v. Nebraska Dept. of Health &
Human Servs., ante p. 48, 825 N.W.2d 204 (2013).
CONCLUSION
Murante’s guaranty was not subject to the Act, and under the
terms of the guaranty, Murante is liable for the total amount
of Sutherlands’ debt, less the trustee’s sale price. The district
court did not abuse its discretion in denying Murante’s motion
for leave to amend the complaint, and it did not err in sustain-
ing Mutual’s motion for summary judgment. We affirm the
decision of the district court.
Affirmed.
Stephan, Miller-Lerman, and Cassel, JJ., not participating.
Jeanette Churchill, appellant, v. Columbus
Community Hospital, Inc., a Nebraska
corporation, et al., appellees.
___ N.W.2d ___
Filed April 25, 2013. No. S-12-452.
1. Summary Judgment: Appeal and Error. 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 infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Limitations of Actions. Which statute of limitations applies is a question of law.
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760 285 NEBRASKA REPORTS
4. Judgments: Appeal and Error. An appellate court reaches a conclusion regard-
ing questions of law independently of the trial court’s conclusion.
5. Limitations of Actions: Negligence. In determining whether the statute of limi-
tations for professional negligence applies to a plaintiff’s claim, the court must
determine whether the defendant is a professional and was acting in a profes-
sional capacity in rendering the services upon which the claim is based.
6. Limitations of Actions: Damages. Actions for damages arising out of the pro-
fessional services provided by physical therapists are actions based on an alleged
claim of negligence in providing professional services and are subject to the time
limitations described in Neb. Rev. Stat. § 25-222 (Reissue 2008).
7. Limitations of Actions: Negligence. A cause of action accrues for negligence in
professional services when the alleged act or omission in rendering or failure to
render professional services takes place.
8. Words and Phrases. In determining whether a particular act or service is profes-
sional in nature, the court must look to the nature of the act or service itself and
the circumstances under which it was performed.
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Affirmed.
Jon J. Puk, Kelli Anne Francis, and Lawrence J.G. Roland,
Senior Certified Law Student, of Walentine, O’Toole, McQuillan
& Gordon, L.L.P., for appellant.
Mark E. Novotny, John M. Walker, and Sarah F. Macdissi,
of Lamson, Dugan & Murray, L.L.P., for appellees.
Wright, Connolly, Stephan, McCormack, and Cassel, JJ.
Wright, J.
NATURE OF CASE
In November 2007, Jeanette Churchill attended an aquatic
physical therapy session at Premier Physical Therapy, an off-
site clinic owned by Columbus Community Hospital, Inc.
As she was descending the steps of the clinic’s aboveground
pool, she slipped and fell on the wet tile floor, injuring
her right arm and wrist. On November 1, 2011, Churchill
filed an action against Columbus Community Hospital, Inc.;
Columbus Community Hospital, doing business as Premier
Physical Therapy; and Premier Physical Therapy of Columbus
Community Hospital (collectively the defendants). The district
court granted summary judgment in favor of the defendants
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CHURCHILL v. COLUMBUS COMM. HOSP. 761
Cite as 285 Neb. 759
because it concluded the action was subject to a 2-year statute
of limitations. Churchill appeals.
SCOPE OF REVIEW
[1,2] 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. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777,
826 N.W.2d 225 (2012). In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted, and gives
that party the benefit of all reasonable inferences deducible
from the evidence. Id.
[3,4] Which statute of limitations applies is a question of
law. Fitzgerald v. Community Redevelopment Corp., 283 Neb.
428, 811 N.W.2d 178 (2012). We reach a conclusion regard-
ing questions of law independently of the trial court’s conclu-
sion. Id.
FACTS
Columbus Community Hospital owned Premier Physical
Therapy, an offsite clinic in Columbus, Nebraska. Churchill,
who suffered from chronic low-back pain, participated
in aquatic physical therapy which had been prescribed by
her physician.
Generally, clinic patients were not assisted in leaving the
clinic’s exercise pool area unless they had a problem walking.
Jay Pelan was a physical therapist who provided therapy to
Churchill. During his patients’ initial session, he told them to
be careful when going up and down the exercise pool steps and
to be careful when leaving the pool area. During Churchill’s
first physical therapy session, Pelan evaluated her ability to
walk and to go up and down steps, and he determined she did
not have trouble walking.
This action arose from an aquatic physical therapy session
held on November 2, 2007. Pelan led Churchill in aquatic
physical therapy exercises with the help of Amy Nelson.
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Nelson was studying to be a physical therapy assistant and was
working as a physical therapy technician. Pelan directed the
session from outside the pool. He briefly stepped out of the
exercise room to check on another patient, and Nelson moni-
tored the session. Pelan returned, and at the end of the session,
he told Churchill to leave the pool and go to the locker room
to change. Churchill followed his direction.
The pool was above ground, which required Churchill to
navigate steps down from the pool to a tile floor in order to
reach the locker room. Churchill was not assisted in walking
down the steps because her evaluation did not indicate she
had a problem walking. On the tile floor was a large puddle
of water. As Churchill exited the pool, descended the steps,
and stepped from the last step onto the puddle, she slipped and
fell. She broke her right elbow and fractured her right forearm
and wrist.
On November 1, 2011, Churchill filed an action in Platte
County District Court, claiming the defendants had been negli-
gent in several respects, including failure to repair or clean the
floor and failure to warn. Her action was based upon a theory
of premises liability that would be subject to the general 4-year
statute of limitations provided in Neb. Rev. Stat. § 25-207
(Reissue 2008).
The defendants moved for summary judgment, claiming
the action was barred by the statute of limitations. The district
court determined that the sole issue presented was whether
the 2-year statute of limitations for professional malpractice
applied. There was no dispute that the lawsuit had been filed
outside this 2-year statute of limitations.
The district court considered Swassing v. Baum, 195 Neb.
651, 240 N.W.2d 24 (1976), and Olsen v. Richards, 232 Neb.
298, 440 N.W.2d 463 (1989), and concluded that a professional
relationship existed between Churchill and the defendants. That
professional relationship led to the physical therapy session,
and getting out of the pool was “an essential and integral part”
of the professional services given to Churchill. The court con-
cluded that a 2-year statute of limitations applied, citing Neb.
Rev. Stat. §§ 25-208 and 25-222 (Reissue 2008). Accordingly,
it determined the action was time barred, sustained the motion
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CHURCHILL v. COLUMBUS COMM. HOSP. 763
Cite as 285 Neb. 759
for summary judgment, and dismissed Churchill’s complaint
with prejudice.
Churchill appealed, and this court moved the case to its
docket on its own motion pursuant to its authority to regulate
the dockets of the appellate courts of this state. See Neb. Rev.
Stat. § 24-1106(3) (Reissue 2008).
ASSIGNMENTS OF ERROR
Churchill assigns, restated, that the district court erred in (1)
concluding that a professional relationship existed between her
and the defendants; (2) concluding that the activity that was the
subject of the claim of negligence was part of the professional
services provided by the defendants; (3) failing to consider
negligence based on premises liability; and (4) dismissing the
complaint with prejudice, which denied her the opportunity to
amend her complaint.
ANALYSIS
[5] In determining whether the statute of limitations for
professional negligence applies to a plaintiff’s claim, the court
must determine whether the defendant is a professional and
was acting in a professional capacity in rendering the services
upon which the claim is based. See, Parks v. Merrill, Lynch,
268 Neb. 499, 684 N.W.2d 543 (2004); Reinke Mfg. Co. v.
Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999). This requires
answering two questions: whether the defendants were profes-
sionals who provided professional services to Churchill and
whether the activity that caused Churchill’s injuries was part of
those professional services.
The district court sustained the motion for summary judg-
ment based on its conclusion that the 2-year statute of limita-
tions set forth in § 25-208 or § 25-222 applied to this case.
Which statute of limitations applies is a question of law.
We reach a conclusion regarding questions of law indepen-
dently of the trial court’s conclusion. Fitzgerald v. Community
Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 178 (2012).
Physical Therapy Is P rofession
Churchill claims that her action is for premises liability and
that this court has not determined that physical therapy is a
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profession. The Legislature has not specifically stated which
occupations provide professional services as the term is set
forth in § 25-222. See Parks, supra. Section 25-222 provides
in relevant part:
Any action to recover damages based on alleged pro-
fessional negligence or upon alleged breach of war-
ranty in rendering or failure to render professional serv­
ices 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[.]
We have previously determined that an accountant, a medi-
cal technician, and an investment advisor were professionals
for purposes of the statute of limitations described in § 25-222,
see Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362
N.W.2d 35 (1985), but have not addressed whether a physical
therapist is a professional. If a physical therapist is not a pro-
fessional, § 25-222 does not apply to this action.
In Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976),
the issue was whether an employee was performing profes-
sional services at the time of the alleged negligent conduct.
A blood-typing test incorrectly reported the plaintiff’s blood
type. The test was ordered by a physician but performed by his
employee. The plaintiff claimed that had the blood test been
accurate, permanent injuries to one of her children could have
been avoided. Any direct suit against the physician was time
barred by § 25-222, but the plaintiff claimed that the physi-
cian’s employee was negligent in conducting the test and that
the claim against the employee was subject to a 4-year statute
of limitations. If the employee could be sued for negligence in
conducting the blood test, the plaintiff would claim the physi-
cian was liable under respondeat superior.
As a matter of law, this court concluded that the blood test
was a professional service “because the performance of the
blood test was an essential and integral part of the rendition
of professional services by [the physician] to [the plaintiff].”
Swassing, 195 Neb. at 655, 240 N.W.2d at 27. We defined a
“‘“professional” act or service’” as
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“one arising out of a vocation, calling, occupation, or
employment involving specialized knowledge, labor, or
skill, and the labor or skill involved is predominantly
mental or intellectual, rather than physical or manual. .
. . In determining whether a particular act is of a profes-
sional nature or a ‘professional service’ we must look not
to the title or character of the party performing the act,
but to the act itself.”
Id. at 656, 240 N.W.2d at 27 (emphasis omitted) (quoting
Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d
870 (1968)).
We held that the employee was performing professional
services and that any negligence by the employee was profes-
sional negligence subject to the time limitation for commenc-
ing an action for professional negligence under § 25-222.
Accordingly, we affirmed the district court’s dismissal.
Churchill concedes that if the Swassing definition of a “pro-
fessional” applies, her action would be controlled by § 25-222.
She claims, however, that the term “professional” was rede-
fined in Tylle v. Zoucha, 226 Neb. 476, 412 N.W.2d 438
(1987), and that summary judgment was inappropriate with-
out a determination that physical therapists are professionals
under Tylle.
Whether physical therapists are professionals is a question
of law that we decide independently of the trial court. See,
Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004);
Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380
(1999). In Tylle, supra, this court determined that the best defi-
nition of the word “profession” was found in Webster’s Third
New International Dictionary, Unabridged, which defined a
“profession” as
“a calling requiring specialized knowledge and often long
and intensive preparation including instruction in skills
and methods as well as in the scientific, historical, or
scholarly principles underlying such skills and methods,
maintaining by force of organization or concerted opinion
high standards of achievement and conduct, and commit-
ting its members to continued study and to a kind of work
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which has for its prime purpose the rendering of a public
service . . . .”
Tylle, 226 Neb. at 480, 412 N.W.2d at 440. This definition
stressed “the long and intensive program of preparation to
practice one’s chosen occupation traditionally associated only
with professions.” Id. at 480, 412 N.W.2d at 441.
In Jorgensen v. State Nat. Bank & Trust, 255 Neb. 241, 583
N.W.2d 331 (1998), the court recognized that an occupation
was not a profession merely because it required mental rather
than physical labor. We stated that a college degree embodies
the “‘long and intensive program of preparation’” of a pro-
fession and that “licensing, although not dispositive, strongly
indicates that an occupation is a profession.” Id. at 246, 583
N.W.2d at 335.
The Nebraska Court of Appeals applied Jorgensen, supra, to
conclude that abstracters were professionals in Cooper v. Paap,
10 Neb. Ct. App. 243, 634 N.W.2d 266 (2001). The Abstracters
Act, see Neb. Rev. Stat. § 76-535 et seq. (Reissue 2009), is
meant to protect citizens and ensure that abstracters who are
serving the public meet certain standards. The Abstracters Act
establishes a board of examiners to enforce the provisions of
the act. Abstracters have to be licensed; and to obtain a license,
abstracters have to pass a written examination and prove they
have a year of verified land title-related experience. Once
licensed, an abstracter has to complete and certify successful
completion of 3 hours of board-approved professional develop-
ment credits. The term “professional development credits” has
been substituted for “continuing education programs” in the
statutory language. See, § 76-544; 1985 Neb. Laws, L.B. 47.
The board of examiners has the authority to revoke or suspend
an abstracter’s license.
Several factors are indicative of a profession. A license
strongly indicates a person is a professional, but that is not the
only prerequisite. See Jorgensen, supra. The preparation and
training required to procure that license are also important fac-
tors. See, Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d
543 (2004); Jorgensen, supra. A college degree indicates such
preparation and training, see id., but a college degree itself
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is not required, see Cooper, supra. Work performed to ren-
der a professional service, continuing education requirements,
and a professional disciplinary authority all indicate a per-
son is a professional. See, Parks, supra; Joregensen, supra;
Cooper, supra.
The Physical Therapy Practice Act, Neb. Rev. Stat. § 38-2901
et seq. (Reissue 2008), requires physical therapists to be
licensed. Obtaining a license requires completing an approved
educational program and an examination. See § 38-2921. An
educational program may be approved based on the program’s
accreditation by the Commission on Accreditation in Physical
Therapy Education or equivalent standards established by the
Board of Physical Therapy. §§ 38-2926 and 38-2905. These
requirements indicate that physical therapists complete the
“‘long and intensive program of preparation’” that is required
of professionals. See Jorgensen, 255 Neb. at 246, 583 N.W.2d
at 335.
Pursuant to § 38-2914, physical therapy includes “[e]xamin-
ing, evaluating, and testing individuals with . . . functional
limitations . . . or other conditions related to health and
movement and, through analysis of the evaluative process,
developing a plan of therapeutic intervention and prognosis . .
. .” Physical therapists must complete 20 hours of continuing
education every 2 years. See, 172 Neb. Admin. Code, ch. 137,
§ 022.01A (2005) (currently found at 172 Neb. Admin. Code,
ch. 137, § 013.01 (2012)). They are subject to disciplinary
actions for ethical violations and failure to follow professional
practice and can receive various sanctions, including suspen-
sion and license revocation. See, 172 Neb. Admin. Code, ch.
137, § 019.03 (2005) (currently found at 172 Neb. Admin.
Code, ch. 137, §§ 015.01, 015.02, and 015.05 (2012)). Thus,
physical therapists render a public service and are subject to
both mandatory continuing education requirements and profes-
sional discipline.
[6] Based on the nature of the work, the educational and
occupational requirements, and the factors discussed, we con-
clude that physical therapists are professionals. Accordingly,
actions for damages arising out of the professional services
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provided by physical therapists are actions based on an alleged
claim of negligence in providing professional services and are
subject to the time limitations described in § 25-222.
Scope of P rofessional R elationship
[7] We next examine whether the alleged act or omission
upon which Churchill bases her claim was a part of the pro-
fessional services provided to her by the defendants. A cause
of action accrues for negligence in professional services when
the alleged act or omission in rendering or failure to render
professional services takes place. Murphy v. Spelts-Schultz
Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992). In the case
at bar, Churchill’s cause of action accrued when she slipped
while descending from the last step of the aboveground pool.
If directing Churchill to get out of the pool without assistance
was part of the professional services that were being provided
to her at the time she slipped and fell, then the action is a claim
based on professional negligence.
[8] In determining whether a particular act or service is
professional in nature, the court must look to the nature of the
act or service itself and the circumstances under which it was
performed. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d
543 (2004). The defendants allege that leaving the pool area
was an essential and integral part of providing professional
services to Churchill.
In Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976),
we determined that whether an action was a professional
service was a question of law. A blood-typing test was essen-
tial and integral to the plaintiff’s medical treatment, and we
held the test was a professional service. In the case at bar,
whether climbing out of the pool was essential and integral to
Churchill’s treatment is a question of law. We independently
review questions of law decided by a lower court. See Molczyk
v. Molczyk, ante p. 96, 825 N.W.2d 435 (2013).
In Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 (1989),
the plaintiff went to the doctor for an examination and sinus
treatment. She was seated in a large antique examination chair
and was injured when the doctor slammed the chair’s headrest
into her neck. We determined that the examination was an
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integral part of the professional services given to the plain-
tiff and that the negligent act occurred while she was being
positioned for the purpose of providing those services. We
concluded that the Legislature did not intend to apply different
statutes of limitations to different portions of the physician-
patient relationship.
In Stanley v. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468
(1986), the plaintiff fractured an ankle while getting off a
doctor’s examining table. There was no claim that the condi-
tion of the table or premises caused the injury. The basis for
the plaintiff’s negligence claim was the physician’s duty to
watch her on the table and help her on or off the table. That
duty arose from the information gained through the physician-
patient relationship and the doctor’s knowledge as a physician.
The complaint claimed the breach of a duty that arose from the
physician-patient relationship and was substantially related to
the treatment. The court concluded the action was a medical
malpractice action barred by the statute of limitations because
the plaintiff did not bring her claim within the time required for
medical malpractice actions.
Churchill argues that the act of observing her climb out of
the pool was not an essential and integral part of the physi-
cal therapy services she received and that her claim does not
implicate the duty owed by a physician to a patient. She asserts
that the action is one based upon premises liability and that
Olsen, supra, and Stanley, supra, are “problematic,” because
those cases did not address premises liability. See brief for
appellant at 14.
We disagree. In both of those cases, the patient was under
the care of a physician when the injury occurred. In Olsen,
supra, the patient was in an examination chair and the proce-
dure was a part of the care and treatment being given by the
physician. In Stanley, supra, the patient remained under the
care of a medical professional while she was getting off an
examination table.
Performing aquatic exercises in the aboveground pool was
part of Churchill’s physical therapy. Her physical therapist
evaluated her ability to get into and out of the pool. When
the physical therapist directed Churchill to get out of the
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pool without assistance, he was providing professional serv­
ices. Thus, at the time of her injuries, Churchill was receiv-
ing professional services from her physical therapist and
her action to recover damages was based on alleged profes-
sional negligence.
Other jurisdictions have reached similar results. In Rome
v. Flower Mem. Hosp., 70 Ohio St. 3d 14, 635 N.E.2d 1239
(1994), the court addressed two consolidated cases. In one
case, the plaintiff fell off an x-ray table when the table was
lifted and alleged negligence in failing to properly secure the
footboard. The court concluded that the claim for injury was
a medical claim subject to a 1-year statute of limitations. The
plaintiff in the second case alleged he was injured after a com-
ponent of his wheelchair collapsed as he was being transported
from the physical therapy department. Transport from physical
therapy was inherently necessary to the physical therapy treat-
ment. The claim was a medical claim barred by a 1-year statute
of limitations.
In Long v. Warren Gen. Hosp., 121 Ohio App. 3d 489, 700
N.E.2d 364 (1997), the plaintiff went to the hospital for a
colonoscopy. He was told to change into a hospital gown but
was advised to keep his socks on because it was cold. Later,
an orderly came in and placed a gurney 5 feet from the bed
where the plaintiff was sitting. The orderly told the plaintiff
to walk to the gurney but offered no assistance. When the
plaintiff was about halfway to the gurney, the orderly told
him to bring the pillow from the bed. While turning to get the
pillow, the patient fell and was injured. The court determined
the plaintiff raised a medical claim subject to a 1-year statute
of limitations.
In Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525
(Tex. 2011), the plaintiff alleged she was injured when she
slipped on a wet floor while getting out of a bathtub. She
claimed the hospital had a duty to properly maintain a safe
environment and that the hospital breached its duty by failing
to properly maintain the floor and warn her of the dangerous
condition. The plaintiff’s pleadings showed the claim was a
safety claim directly related to services meeting fundamental
needs. Hospitals necessarily provided patients services to meet
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fundamental needs such as cleanliness and safety. The essence
of the claim was a failure by the hospital to provide a dry floor,
to warn of the hazards of a wet floor, or something similar.
The court concluded the claim was a health care liability claim
directly related to health care.
Churchill was receiving professional services at Premier
Physical Therapy when the accident occurred. She was required
to enter and leave the pool, and she was injured as she was
leaving the pool at the direction of her physical therapist.
Churchill’s injuries arose while she was receiving profes-
sional services.
Since her claims arose from her professional relationship
with her physical therapist, they are subject to the statute of
limitations set forth in § 25-222. Because Churchill did not file
her action within 2 years of the date of her injuries, the action
is time barred.
R emaining Arguments
We find no merit to any of Churchill’s remaining assign-
ments of error, and we affirm the judgment of the district court.
CONCLUSION
Physical therapists are professionals. Because Churchill’s
claims arose from her professional relationship with her physi-
cal therapist, they are subject to the 2-year statute of limita-
tions set forth in § 25-222. We affirm the district court’s order
of summary judgment in favor of the defendants.
Affirmed.
Heavican, C.J., and Miller-Lerman, J., participating on
briefs.
Connolly, J., concurring.
Although I agree that this is a professional negligence case
that is barred by Neb. Rev. Stat. § 25-222 (2008), I write sepa-
rately because I disagree with the majority opinion’s reasoning.
As I read the opinion, § 25-222 applies to Churchill’s claim
merely because she was injured while receiving professional
services. This is an insufficient basis for determining that
Churchill has alleged professional negligence. I believe the
opinion incorrectly omits the requirements of breach and cau-
sation from its analysis.
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Under § 25-222,
[a]ny action to recover damages based on alleged
professional negligence or upon alleged breach of war-
ranty in rendering or failure to render professional serv­
ices 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[.]
(Emphasis supplied.)
Negligence, by definition, is the defendant’s breach of a
duty to exercise the applicable standard of care that proxi-
mately causes the plaintiff’s damages.1 Professional negligence
is the failure of a person rendering professional services to
exercise the standard of care that other members of the profes-
sion would ordinarily use, which failure proximately causes the
plaintiff’s damages.2
Under § 25-222, we have held that a claim of any unreason-
able lack of skill or fidelity in the performance of professional
or fiduciary duties sounds in professional negligence.3 The
relevant test is not the degree of skill required, but whether the
defendant’s negligence was an integral part of the professional
services that the defendant was providing to the plaintiff.4 And
under our case law, the statute of limitations under § 25-222
applies even to a claim that the defendant’s employee was
negligent in performing an integral part of the professional
services that caused the plaintiff’s damages.5
I agree that the physical therapist was a professional who
was rendering professional services at the time that Churchill
was injured. But I disagree that the next inquiry is “whether
the activity that caused the injury was part of those profes-
sional services.”
1
See, Blaser v. County of Madison, ante p. 290, 826 N.W.2d 554 (2013);
Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997).
2
See, Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589
(2012); Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008).
3
See Nuss v. Alexander, 269 Neb. 101, 691 N.W.2d 94 (2005).
4
See Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 (1989).
5
See Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976).
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Obviously, not every injury that occurs during the course
of receiving professional services will be caused by profes-
sional negligence.6 Churchill clearly could have been injured
by an unsafe condition of the premises that was unrelated to
the breach of a professional duty. And without a causal link
between the defendants’ breach of a professional duty and the
plaintiff’s damages, there is no professional negligence claim.
So in my view, the relevant question is whether her claim
depended on a finding that the therapist’s unreasonable lack
of skill or fidelity in the performance of professional or
fiduciary duties caused her injuries. If so, the court prop-
erly applied § 25-222 to her claim regardless of her theory
of recovery.7
I conclude that this condition is satisfied. Churchill specifi-
cally alleged that the therapist was negligent in failing to assist
her in descending the stairs from the pool onto a wet surface.
Although she did not allege that the therapist was negligent
in determining that she did not need assistance, her negligent
assistance allegation shows that her claim depended upon
a finding the therapist breached a professional duty, which
breach caused her injuries. The therapist could not have been
negligent in failing to assist her on wet steps unless he had
improperly assessed her need for assistance or other precau-
tions to avoid harming herself on wet surfaces while entering
or exiting the pool.
Similarly, although she claims that the defendants were
negligent in failing to repair or clean a condition of the floor-
ing that presented an unreasonable risk of harm, water on the
steps and flooring was not a condition that needed repairing.
It was an inherent part of receiving physical therapy in a pool
with other patients entering and exiting on the steps. The steps
and the inherently wet conditions of the therapy created the
need to assess each patient’s physical abilities. So Churchill’s
claim could not have succeeded without a fact finder determin-
ing that the defendants should have known she would need
6
R.W. v. Schrein, 263 Neb. 708, 642 N.W.2d 505 (2002), modified on other
grounds 264 Neb. 818, 652 N.W.2d 574.
7
See Nuss, supra note 3.
Nebraska Advance Sheets
774 285 NEBRASKA REPORTS
assistance or other precautions. Summed up, this is a claim that
the therapist negligently assessed her abilities and needs. For
this reason, I concur in the judgment that this a professional
negligence claim.
In re I nterest of Rylee S., a child
under 18 years of age.
State of Nebraska, appellee, v.
Lisa S., appellant.
___ N.W.2d ___
Filed April 25, 2013. No. S-12-531.
1. Juvenile Courts: Parental Rights. A juvenile court has the discretionary power
to prescribe a reasonable program for parental rehabilitation to correct the condi-
tions underlying the adjudication that a child is a juvenile within the Nebraska
Juvenile Code.
2. ____: ____. While there is no requirement that the juvenile court must institute
a plan for rehabilitation of a parent, the rehabilitation plan must be conducted
under the direction of the juvenile court and must be reasonably related to the
plan’s objective of reuniting parent with child.
3. Juvenile Courts: Appeal and Error. In analyzing the reasonableness of a plan
ordered by a juvenile court, the Nebraska Supreme Court has noted that the fol-
lowing question should be addressed: Does a provision in the plan tend to correct,
eliminate, or ameliorate the situation or condition on which the adjudication has
been obtained under the Nebraska Juvenile Code? An affirmative answer to this
question provides the materiality necessary in a rehabilitative plan for a parent
involved in proceedings within a juvenile court’s jurisdiction. Otherwise, a court-
ordered plan, ostensibly rehabilitative of the conditions leading to an adjudication
under the Nebraska Juvenile Code, is nothing more than a plan for the sake of a
plan, devoid of corrective and remedial measures.
4. Juvenile Courts: Parent and Child. Similar to other areas of law, reasonable-
ness of a rehabilitative plan for a parent depends on the circumstances in a par-
ticular case and, therefore, is examined on a case-by-case basis.
5. Juvenile Courts: Parental Rights: Child Custody: Visitation. Pretreatment
assessments, psychiatric testing, or psychological evaluations of a parent may be
required to determine the best interests of a child when issues of custody, visita-
tion, and termination of parental rights are presented.
6. Juvenile Courts: Parental Rights. Juvenile courts have broad discretionary
power to rehabilitate a parent, but not without limits.
7. Juvenile Courts: Parental Rights: Child Custody: Visitation: Evidence. If a
juvenile court finds that a pretreatment assessment and/or the release of medical
records are necessary for parental rehabilitation in cases not involving custody,