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 alleviat e heavy bleeding from hemorrhoids and pain from a fissure (a linear ulcer)
on his anus. The following month, he underwent a second operation to drai n
a p ainful abscess that had developed in his rectum (the rectum is th e lowe st portion of the large intestine and ends at the anal opening)

. Almost immediately af ter the second operation, Mr. Joyner began suffering fromfecal incontinence on a daily basis. In early 1994, he underwent a third operation that corrected his fecal incontinence to a considerabl e 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.

-2- In Ap ril, 1994, in federal district court in Nebraska, Mr. Joyne r sued the doctors who performed the first two operations. Mr. Joyne r asserted claims for medical malpractice, contending that the firs t operation was negligently performed, that the su bsequent abscess developed
as a result of the first operation, that the second operation was als o neglig ently performed, and that he suffered from a permanent impairmen t
con sequent to those two operations. The district court granted summar y judgment to the doctors (and their joint professional corporation), statin g 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 ordina ry circumstances, Mr. Joyner had to bri ng suit within two years "after the alleged act or omission i n rendering or failing to render professional services providing the basis" for the suit. See Neb. Rev. Stat. § 44-2828; see also Neb. Rev. Stat

. § 25-22 2. Mr. Joyner acknowledges that he filed his suit more than tw o years after May, 1991, when he underwent the sec ond 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 establishe d by statute. We consider each of those exceptions in turn.

The statu te itself states that "if the cause of action could not be reasonably discovered within [the] two-year peri od," a suit may be brought "withi n one year ... from the date of discovery of facts which woul d reasonabl y lead to such discovery." See Neb. Rev. Stat. § 44-2828; se e also Neb. Rev. Stat. § 25-222. "Under the disco very principle, a cause of action accrues ... where

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there has been discovery of facts ... sufficient to put a person o f ordinary intelligence and prudence on inquiry which, if pursued, would lea d to the discovery. ... It is not necessary that the plaintiff hav e knowledge of the exact nature or source of the p roblem, 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 inq uiry 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 knowledg e at hand" -- "the ability to check his [or her] impression ... [and thereby ] ascertain[] the exist ence" 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 wa s permanent and that improper treatment by his first two doctors was responsible for that condition and its permanence, see , e.g. , Taylor v. Karre r , 244 N.W.2d 201, 203 (Neb. 1976), so that he could have l earned, "with the use of reasonable diligence," whether hi s suspic ions were true, Toman v. Creighton Memorial St. Josephs Hospital , Inc. , 217 N.W.2d 484, 489 (Neb. 1974).

Mr. Joyne r argues that he should not reasonably have suspected that he had a cause of action until after he consulted his third doctor and tha t it was not unreasonable for him to wait until August, 1993, to consult tha t do ctor. Mr. Joyner contends, accordingly, that the one-yea r post-in quiry-notice period for filing suit did not begin to run unti l August, 1993 (when he first consulted the third doctor), which would make timely his filing of April, 1994.

In respon se, the defendants assert that, as a matter of law, it was
unr easonable for Mr. Joyner to wait more than a year after the secon d operation for improvement or to consult a third doctor and, therefore, tha t 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
reason able waiting period, the defendants rely on Mr. Joyner's thir d doctor, who stated by affidavit that "[f]rom a medical standpoint, a year fr omthe date of [Mr. Joyner's second operation] would not be a n
unrea sonable period for a patient to wait to see whether bowel contro l returned to normal." Mr. Joyner does not challenge that statement by his third doctor.

In ligh t of the Nebraska case law, the essence of our task is t o decide whether it was unreasonable, as a matter of law, for Mr. Joyner to wait beyond May, 1992 (allowing for a recovery p eriod of a year subsequent to the second operation), to consult a third doctor (or, in th e alternative, whether the issue of unreasonableness is sufficientl y disputable to create a jury question). Mr. Joyner contends that because of his limited educat ion and experience in medical matters, his financial difficu lties (created by his inability to work because of his medica l problems), and the embarrassing nature of his co ndition, his reluctance to consul t another doctor (and possibly to invite further surgery) wa s 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 inquir y into r easonableness, though, we note that, according to his deposition , Mr. Joyner, who is now 37 years old, has been the successful sol e proprietor of a diesel repair business for 20 years, raised cattle on 1,00 0
acr es of his own land for at least two years of that time, operated a drilling service contemporaneously with his diesel repair service for at le ast part of that time, and knows how to use a home computer. Als o 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 wa s 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 Neb raska Supreme Court has indicated that, even despit e
assura nces from the surgeon that a post-operative medical condition i s temporary, at some po int "after the last of [the doctor's] assurances and recommendations for post-operative ... therapy," the statute of limitation s begins to run. Toman , 217 N.W.2d at 490. In Mr. Joyner's case, all of th e parties seem to agree that a year after his second operation was, as a n objecti ve matter, a reasonable time to wait to see if his feca l 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 Housin g Company, Inc. v. Rose nberg , 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 perio d following inquiry not ice therefore expired in May, 1993. (Although it is not necessary to our holding, we note that Mr. J oyner did consult a lawyer sometim e in 1991, indicating that he may have actually suspected tha t medical malpractice w as 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 th e statut ory two-year deadline, an exception that they have described a s involv ing the continuing treatment rule. Under this exception, "th e statute of limitations does not begin to run 'un til 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 a pplies when there has been ... a continuing cour se of negligent treatment." Frezell v. Iwersen , 436 N.W. 2d 194, 198 (Neb. 1989). One of the reasons for this rule is tha t "[p]ost-operative treatment and advice by the ph ysician 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, 48 9 (Neb. 1974); see also Williams v. Elias , 1 N.W.2d 121, 124 (Neb. 1941).
Mr. Joyner asserts with respect to the continuing treatment rul e that he was told by the defendants that his fecal incontinence was temporary an d
was likel y to cease. He argues, therefore, that since his third docto r sugge sted that a year was a reasonable time to wait to see if the feca l incontinence did in fact cease, the two-year period for filing suit did no t 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 n o evidence in the materials submitted to us that the post-operative treatmen t that Mr. Joyner received was negligent. Indeed, even if we characterize as "treatment" the do ctors' requiring Mr. Joyner to wait a year to see if his fecal incontinence would cease, all of the evidence is to the effect tha t there was nothing negligent about requiring such a waiting period

. We therefore see no basis for applying the continuing treatment rule t o prevent the statute of limitations from barring Mr. Joyner's suit.

III. The Nebraska courts have also recognized an exception to th e 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. Ancon a 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] t o subject his ... claim to the bar of the statute of limitations, and then plea d 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) c onduct [by the defendant] wh ich amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey th e impression that the facts are otherwise than, an d inconsistent with, those whic h the [defendant] subsequently attempts to assert; (2) th e [defendant's] intention, or at least the expectation, that [th e defendant's] conduct shall be acted upon by, or influence, [the plaintiff] ; (3) kno wledge, actual or constructive, [by the defendant] of the rea l facts;

. .. (4) lack of knowledge and of the means of knowledge [by th e plaintiff] of the truth as to the facts in quest ion; (5) reliance, in good fa ith, [by the plaintiff], upon the conduct or statements of th e [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, detrim ent, or prejudice." Jennings v. Dunning , 440 N.W.2d 671, 675 (Neb. 1989). In medical malpractice cases, the Nebraska courts have found misreprese ntations 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, Mull er v. Thaut , 430 N.W.2d 884, 889 (Neb. 1988), to be material.

### -8- Mr. Joyner argues that the defendants told him, first, that his fecal inc ontinence was temporary (when in fact it was permanent) and, second , th at the abscess and thus the need for the second operation wer e precipitated by some type of external contamination (when in fact they wer e consequent to malpractice in performing the first operation). We see no evidence, however, th at tends to prove that the defendants knew either of the permanence of Mr. Joyner's condition or of any malpractice by the firs t 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 thos e facts, the defendants could neither have lied ab out 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 t he 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.