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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 inferences 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 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. 

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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/26/2020 12:08 AM CDT
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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 district 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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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 parties 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 during 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 complaint 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 physicians other than Armitage. According to the second amended 

complaint, a PSA test measures the level of PSA in the bloodstream 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 second amended complaint alleged that “based on . . . Bonness’ 

desire to do everything necessary to screen for prostate cancer,” 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 history of prostate cancer, that he had been taking the medication 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 prescribe 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 percent. 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 represented 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 specifically 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 complaint characterized as “elevated.” In 2015, Bonness underwent 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 preventative 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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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 regular 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 district court wrote that by that date, Bonness would have known 

that Armitage had been unable to prevent Bonness from getting 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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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’ argument 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 properly 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 limitations 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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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 limitations 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 several 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 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.” 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 discovery after the first amended complaint was filed qualifies as a 

waiver under that standard.

We find Bonness’ contention that Armitage waived the statute 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’ estoppel 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 limitations defense.

Was Dismissal on Statute of 

Limitations Grounds Proper?

Having found that Armitage did not waive the statute of limitations 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 plaintiff does not allege facts to avoid the bar of the statute of limitations, 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 complaint 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 professional 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 limitations 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 professional 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 rendering 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 statute of limitations began to run and when he could have reasonably 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 limitations began to run in January 2015, Armitage asserts that even 

if Bonness is correct that he could not reasonably have discovered 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 necessary 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 person 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 diagnosis 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 unquestionably true, we find it does not shed much light on the question 

at hand. Bonness does not allege that Armitage was negligent 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 doctor 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 unreliable.” 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 contains 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 cancer and made it clear that he wanted to do whatever was necessary 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 intelligence 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, however, 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.