No. 95-1883

 

Steven N. Joyner *

and Vickie Joyner, *

*

 Appellants, *

* Appeal from the United States

 v. * District Court for the

 * District of Nebraska.

Glen A. Forney, M.D.; *

Lawrence W. O'Holleran, M.D.; *

and Forney, Westerbuhr *

Surgical Associates, Inc., *

*

 Appellees. *

 

Submitted: November 16, 1995 

Filed: March 26, 1996 

 

Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In April, 1991, Steven Joyner underwent an operation to alleviate

heavy bleeding from hemorrhoids and pain from a fissure (a linear ulcer)

on his anus. The following month, he underwent a second operation to drain

a painful abscess that had developed in his rectum (the rectum is the

lowest portion of the large intestine and ends at the anal opening).

Almost immediately after the second operation, Mr. Joyner began suffering

from fecal incontinence on a daily basis. In early 1994, he underwent a

third operation that corrected his fecal incontinence to a considerable

extent but not totally. Each of the three operations was performed by a

different doctor.
 The Honorable Richard G. Kopf, United States District Judge 1

for the District of Nebraska.

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In April, 1994, in federal district court in Nebraska, Mr. Joyner

sued the doctors who performed the first two operations. Mr. Joyner

asserted claims for medical malpractice, contending that the first

operation was negligently performed, that the subsequent abscess developed

as a result of the first operation, that the second operation was also

negligently performed, and that he suffered from a permanent impairment

consequent to those two operations. The district court granted summary

judgment to the doctors (and their joint professional corporation), stating

that the statute of limitations barred the suit. Mr. Joyner appeals; we

affirm the judgment of the district court.1

I.

Under Nebraska law, and under ordinary circumstances, Mr. Joyner had

to bring suit within two years "after the alleged act or omission in

rendering or failing to render professional services providing the basis"

for the suit. See Neb. Rev. Stat. § 44-2828; see also Neb. Rev. Stat.

§ 25-222. Mr. Joyner acknowledges that he filed his suit more than two

years after May, 1991, when he underwent the second operation. He argues,

however, that the circumstances of his case allow the application of one

or more of three recognized exceptions to the two-year deadline established

by statute. We consider each of those exceptions in turn.

The statute itself states that "if the cause of action could not be

reasonably discovered within [the] two-year period," a suit may be brought

"within one year ... from the date of discovery of facts which would

reasonably lead to such discovery." See Neb. Rev. Stat. § 44-2828; see

also Neb. Rev. Stat. § 25-222. "Under the discovery principle, a cause of

action accrues ... where
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there has been discovery of facts ... sufficient to put a person of

ordinary intelligence and prudence on inquiry which, if pursued, would lead

to the discovery. ... It is not necessary that the plaintiff have

knowledge of the exact nature or source of the problem, but only knowledge

that the problem existed." Board of Regents of the University of Nebraska

v. Wilscam Mullins Birge, Inc., 433 N.W.2d 478, 484 (Neb. 1988). A person

is on inquiry notice under Nebraska law when he or she "first [has] a

feeling" that a problem may exist, if he or she has "the means of knowledge

at hand" -- "the ability to check his [or her] impression ... [and thereby]

ascertain[] the existence" of the problem. Norfolk Iron and Metal Co. v.

Larry L. Behnke, P.C., 432 N.W.2d 18, 25 (Neb. 1988). We believe that in

this case the relevant question is when Mr. Joyner should have suspected

that his condition was permanent and that improper treatment by his first

two doctors was responsible for that condition and its permanence, see,

e.g., Taylor v. Karrer, 244 N.W.2d 201, 203 (Neb. 1976), so that he could

have learned, "with the use of reasonable diligence," whether his

suspicions were true, Toman v. Creighton Memorial St. Josephs Hospital,

Inc., 217 N.W.2d 484, 489 (Neb. 1974).

Mr. Joyner argues that he should not reasonably have suspected that

he had a cause of action until after he consulted his third doctor and that

it was not unreasonable for him to wait until August, 1993, to consult that

doctor. Mr. Joyner contends, accordingly, that the one-year

post-inquiry-notice period for filing suit did not begin to run until

August, 1993 (when he first consulted the third doctor), which would make

timely his filing of April, 1994.

In response, the defendants assert that, as a matter of law, it was

unreasonable for Mr. Joyner to wait more than a year after the second

operation for improvement or to consult a third doctor and, therefore, that

Mr. Joyner was on inquiry notice as of
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May, 1992 -- a year after the second operation. In citing one year as a

reasonable waiting period, the defendants rely on Mr. Joyner's third

doctor, who stated by affidavit that "[f]rom a medical standpoint, a year

from the date of [Mr. Joyner's second operation] would not be an

unreasonable period for a patient to wait to see whether bowel control

returned to normal." Mr. Joyner does not challenge that statement by his

third doctor.

In light of the Nebraska case law, the essence of our task is to

decide whether it was unreasonable, as a matter of law, for Mr. Joyner to

wait beyond May, 1992 (allowing for a recovery period of a year subsequent

to the second operation), to consult a third doctor (or, in the

alternative, whether the issue of unreasonableness is sufficiently

disputable to create a jury question). Mr. Joyner contends that because

of his limited education and experience in medical matters, his financial

difficulties (created by his inability to work because of his medical

problems), and the embarrassing nature of his condition, his reluctance to

consult another doctor (and possibly to invite further surgery) was

entirely reasonable. Specifically, he argues that he is "not a person of

ordinary intelligence or prudence," having left home at age 14 and having

acquired only an eighth-grade education.

We are very sympathetic to Mr. Joyner's difficulties. Even if Mr.

Joyner's subjective qualities are relevant to the usually objective inquiry

into reasonableness, though, we note that, according to his deposition,

Mr. Joyner, who is now 37 years old, has been the successful sole

proprietor of a diesel repair business for 20 years, raised cattle on 1,000

acres of his own land for at least two years of that time, operated a

drilling service contemporaneously with his diesel repair service for at

least part of that time, and knows how to use a home computer. Also

according to Mr. Joyner's deposition, his income before the operations was
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approximately $40,000 per year, and his net worth before the operations was

approximately $75,000. Under these circumstances, we do not believe that

reasonable persons could disagree about whether Mr. Joyner is "a person of

ordinary intelligence or prudence."

The Nebraska Supreme Court has indicated that, even despite

assurances from the surgeon that a post-operative medical condition is

temporary, at some point "after the last of [the doctor's] assurances and

recommendations for post-operative ... therapy," the statute of limitations

begins to run. Toman, 217 N.W.2d at 490. In Mr. Joyner's case, all of the

parties seem to agree that a year after his second operation was, as an

objective matter, a reasonable time to wait to see if his fecal

incontinence would cease. Since "[n]othing had transpired" in that period

"to indicate [that] progress was being made," we hold, as a matter of law,

that Mr. Joyner was on inquiry notice after May, 1992. Economy Housing

Company, Inc. v. Rosenberg, 475 N.W.2d 899, 901 (Neb. 1991) (per curiam);

see also Norfolk Iron, 432 N.W.2d at 22, 25. The one-year discovery period

following inquiry notice therefore expired in May, 1993. (Although it is

not necessary to our holding, we note that Mr. Joyner did consult a lawyer

sometime in 1991, indicating that he may have actually suspected that

medical malpractice was the cause of his difficulties.) Since Mr. Joyner

did not file suit until April, 1994, the discovery rule does not prevent

the statute of limitations from barring his suit.

II.

The Nebraska courts have recognized a second exception to the

statutory two-year deadline, an exception that they have described as

involving the continuing treatment rule. Under this exception, "the

statute of limitations does not begin to run 'until the act complained of,

and any resulting subsequent treatment therefor, is completed.'" Healy v.

Langdon, 511 N.W.2d 498, 501 (Neb. 1994),
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quoting Smith v. Dewey, 335 N.W.2d 530, 533 (Neb. 1983) (emphasis supplied

in Healy). "The continuous treatment doctrine applies when there has been

... a continuing course of negligent treatment." Frezell v. Iwersen, 436

N.W.2d 194, 198 (Neb. 1989). One of the reasons for this rule is that

"[p]ost-operative treatment and advice by the physician to the patient are

an interwoven and essential part of the physician-patient relationship."

Toman v. Creighton Memorial St. Josephs Hospital, Inc., 217 N.W.2d 484, 489

(Neb. 1974); see also Williams v. Elias, 1 N.W.2d 121, 124 (Neb. 1941).

Mr. Joyner asserts with respect to the continuing treatment rule that

he was told by the defendants that his fecal incontinence was temporary and

was likely to cease. He argues, therefore, that since his third doctor

suggested that a year was a reasonable time to wait to see if the fecal

incontinence did in fact cease, the two-year period for filing suit did not

begin to run until May, 1992 (a year after the second operation), at the

earliest, which would make timely his filing of April, 1994.

The difficulty with that argument, however, is that we see no

evidence in the materials submitted to us that the post-operative treatment

that Mr. Joyner received was negligent. Indeed, even if we characterize

as "treatment" the doctors' requiring Mr. Joyner to wait a year to see if

his fecal incontinence would cease, all of the evidence is to the effect

that there was nothing negligent about requiring such a waiting period.

We therefore see no basis for applying the continuing treatment rule to

prevent the statute of limitations from barring Mr. Joyner's suit.

III.

The Nebraska courts have also recognized an exception to the

statutory two-year deadline based on the principle of equitable estoppel

(also known, usually in non-medical contexts, as
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fraudulent concealment). See, e.g., Schendt v. Dewey, 520 N.W.2d 541, 548

(Neb. 1994) (per curiam); see also Upah v. Ancona Brothers Co., 521 N.W.2d

895, 902 (Neb. 1994). A short description of how the equitable estoppel

rule works in medical malpractice cases is that a doctor "may not lull [a

patient] into a false sense of security, thereby cause the [patient] to

subject his ... claim to the bar of the statute of limitations, and then

plead as a defense the very delay caused by the [doctor's] conduct."

Hamilton v. Hamilton, 496 N.W.2d 507, 512 (Neb. 1993).

Formally, the "elements of equitable estoppel ... are ... (1) conduct

[by the defendant] which amounts to a false representation or concealment

of material facts, or, at least, which is calculated to convey the

impression that the facts are otherwise than, and inconsistent with, those

which the [defendant] subsequently attempts to assert; (2) the

[defendant's] intention, or at least the expectation, that [the

defendant's] conduct shall be acted upon by, or influence, [the plaintiff];

(3) knowledge, actual or constructive, [by the defendant] of the real

facts; ... (4) lack of knowledge and of the means of knowledge [by the

plaintiff] of the truth as to the facts in question; (5) reliance, in good

faith, [by the plaintiff], upon the conduct or statements of the

[defendant]; and (6) action or inaction [by the plaintiff] based thereon

of such a character as to change the position or status of the [plaintiff],

to his injury, detriment, or prejudice." Jennings v. Dunning, 440 N.W.2d

671, 675 (Neb. 1989). In medical malpractice cases, the Nebraska courts

have found misrepresentations about the "permanency of ... complications,

[the] length of [the] recovery period, ... improper [surgical techniques],"

Frezell v. Iwersen, 436 N.W.2d 194, 198 (Neb. 1989), and cause of a

patient's death, Muller v. Thaut, 430 N.W.2d 884, 889 (Neb. 1988), to be

material.
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Mr. Joyner argues that the defendants told him, first, that his fecal

incontinence was temporary (when in fact it was permanent) and, second,

that the abscess and thus the need for the second operation were

precipitated by some type of external contamination (when in fact they were

consequent to malpractice in performing the first operation). We see no

evidence, however, that tends to prove that the defendants knew either of

the permanence of Mr. Joyner's condition or of any malpractice by the first

doctor (and Mr. Joyner's assertions on those points contain no citations

to the materials submitted to us). If the defendants did not know of those

facts, the defendants could neither have lied about them to Mr. Joyner nor

intended that he rely on the defendants' statements with respect to those

facts. We therefore see no basis for applying the equitable estoppel rule

to prevent the statute of limitations from barring Mr. Joyner's suit.

IV.

For the reasons stated, we affirm the judgment of the district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.