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BOGUE v. GILLIS

Cite as 311 Neb. 445

Lori J. Bogue and Robert F. Bogue, 

appellants, v. Christopher C. 

Gillis, appellee.

___ N.W.2d ___

Filed April 22, 2022. No. S-21-610.

1. Summary Judgment: Appeal and Error. An appellate court affirms 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.

2. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

3. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law that an appellate court resolves independently of the trial court.

4. Public Policy. While the doctrine of stare decisis is entitled to great 

weight, it is grounded in the public policy that the law should be stable, 

fostering both equality and predictability of treatment.

5. Appeal and Error. Remaining true to an intrinsically sounder doctrine 

better serves the values of stare decisis than following a more recently 

decided case inconsistent with the decisions that came before it.

Appeal from the District Court for Douglas County: Duane 

C. Dougherty, Judge. Affirmed.

Robert T. Cannella and Gerald L. Friedrichsen, of Fitzgerald, 

Schorr, Barmettler & Brennan, P.C., L.L.O., for appellants.

David A. Blagg and Brien M. Welch, of Cassem, Tierney, 

Adams, Gotch & Douglas, for appellee.

Nebraska Supreme Court Online Library

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

06/17/2022 01:06 AM CDT
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Cite as 311 Neb. 445

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Lori J. Bogue and Robert F. Bogue filed a lawsuit against 

Christopher C. Gillis, alleging that as a result of Gillis’ negligence during a surgical procedure, Lori suffered injuries. 

The Bogues now seek review of the district court’s entry of 

summary judgment in favor of Gillis on statute of limitations grounds. The timeliness of the Bogues’ lawsuit turns on 

whether the 2-year statute of limitations started to run on the 

date of the surgery or when Gillis’ subsequent treatment of 

Lori concluded approximately 1 year later. We find the district 

court did not err in concluding that the statute of limitations 

started to run on the date of the surgery and therefore affirm its 

entry of summary judgment in favor of Gillis.

BACKGROUND

Parties’ Allegations.

On January 17, 2017, Gillis performed a lumbar spine fusion 

on Lori in Omaha, Nebraska. Nearly 3 years later, on January 

3, 2020, the Bogues filed a lawsuit against Gillis and other 

defendants. In the lawsuit, the Bogues alleged that during the 

surgery, Gillis negligently damaged Lori’s ureter and that, 

consequently, one of her kidneys stopped functioning and had 

to be removed. The Bogues claimed that as a result of Gillis’ 

negligence, Lori suffered physical pain and mental distress and 

Robert suffered a loss of consortium.

In an amended complaint, the Bogues later alleged that 

Gillis continued to treat Lori through at least January 18, 2018, 

when he determined that Lori had a psoas abscess that was in 

close proximity with “hardware” that was implanted as part of 

the spinal fusion procedure. That amended complaint alleged 

that because Gillis continued to treat Lori through January 

2018, their initial complaint was timely filed.

Gillis alleged in his answer that the Bogues’ malpractice 

claim against him was barred by the statute of limitations 
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set forth in the Nebraska Hospital-Medical Liability Act. See 

Neb. Rev. Stat. § 44-2828 (Reissue 2021).

Summary Judgment Evidence.

Gillis later filed a motion for summary judgment on statute 

of limitations grounds. At the summary judgment hearing, the 

district court received depositions of both Lori and Robert, 

Lori’s medical records, and an affidavit from an expert witness 

retained by the Bogues.

Lori and Robert testified in their depositions that Lori 

began to notice a collection of fluid in her abdomen shortly 

after arriving home from the surgery. Lori’s medical records 

showed that in the year following the surgery, she continued 

to have appointments with Gillis in which the fluid collection 

was addressed. A note describing an appointment with Gillis 

on November 9, 2017, stated that “[t]here appears to be a fluid 

collection in the left psoas and into the abdomen” and went 

on to state that “we will have to obtain the radiology report to 

further understand what this may entail.” Another note describing an appointment with Gillis on January 19, 2018, observed 

that Lori presented “with [a] history of fluid collection” after 

her spine surgery “and then subsequent development of a psoas 

abscess which she continues to undergo drainage and antibiotic 

therapy for.” The notes indicated that Gillis reviewed an MRI 

and observed that the fluid collection had made contact “with 

the interbody cages.” He recommended another MRI to look 

for evidence of “hardware infection.”

Lori and Robert testified that in February 2018, they learned 

that Lori had suffered an injury to her ureter. At that time, both 

Lori and Robert believed that Gillis had negligently injured 

Lori during the surgery in January 2017. Lori’s left kidney was 

removed in March 2018.

The Bogues’ expert opined by affidavit that Gillis had 

breached the standard of care during the surgery in various 

respects and that if Gillis had complied with the standard 

of care, Lori’s ureter would not have been injured and she 
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would not have lost her kidney. The Bogues’ expert also opined 

that Gillis’ treatment of Lori after the surgery “was related to 

the surgical negligence.”

District Court Order.

The district court granted Gillis’ motion for summary judgment. It concluded that whether the Bogues’ claim was governed by the general professional negligence statute of limitations set forth in Neb. Rev. Stat. § 25-222 (Reissue 2016) or 

the statute of limitations set forth in the Nebraska HospitalMedical Liability Act, see § 44-2828, Gillis was entitled to 

summary judgment on statute of limitations grounds.

The district court rejected the Bogues’ argument that under 

the continuous treatment doctrine, the statute of limitations 

did not begin to run until the conclusion of Gillis’ treatment 

of Lori in January 2018. With respect to the continuous treatment doctrine, the district court quoted the following language 

from our opinion in Frezell v. Iwersen, 231 Neb. 365, 369, 436 

N.W.2d 194, 198 (1989): “The continuous treatment doctrine 

applies when there has been either a misdiagnosis upon which 

incorrect treatment is given or when there has been a continuing course of negligent treatment. It does not apply where there 

have been only isolated acts of negligence.” The district court 

observed that there was no evidence that Gillis misdiagnosed 

Lori or was negligent after the January 2017 surgery.

Because the district court concluded that under the undisputed facts in the record, the statute of limitations began to run 

as of the January 2017 surgery, it determined that the Bogues’ 

January 2020 complaint was not timely filed and that Gillis 

was entitled to summary judgment.

The Bogues perfected an appeal of the district court’s ruling 

and filed a petition to bypass the Nebraska Court of Appeals. 

We granted the petition to bypass.

All of the Bogues’ claims against defendants other than 

Gillis either were dismissed by operation of law due to the 

Bogues’ failure to serve, were voluntarily dismissed by the 
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Bogues, or were also resolved by summary judgment. At oral 

argument, counsel for the Bogues confirmed that they are 

appealing only the district court’s entry of summary judgment 

in favor of Gillis.

ASSIGNMENT OF ERROR

The Bogues assign several errors, but they can effectively be 

restated as a single contention that the district court erred by 

finding that their malpractice claim was barred by the statute 

of limitations.

STANDARD OF REVIEW

[1,2] An appellate court affirms 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. Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020). 

An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most 

favorable to the nonmoving party and drawing all reasonable 

inferences in that party’s favor. Id.

[3] Statutory interpretation presents a question of law that an 

appellate court resolves independently of the trial court. Seivert 

v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021).

ANALYSIS

What Statute of Limitations Applies?

The sole issue presented in this appeal is whether the district 

court correctly granted summary judgment to Gillis on statute 

of limitations grounds. We first address which statute of limitations applies.

Gillis claims that because the Bogues alleged that he was 

covered by the Nebraska Hospital-Medical Liability Act, the 

statute of limitations set forth in § 44-2828 applies to the 

Bogues’ claim, rather than the general professional negligence 

statute of limitations set forth in § 25-222. The Bogues do 
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not dispute that assertion, but it is ultimately of little consequence because both parties agree that those statutes of limitation are identical as they relate to this case. See Giese v. Stice, 

252 Neb. 913, 919, 567 N.W.2d 156, 162 (1997) (observing 

that language of § 44-2828 and § 25-222 is “identical in 

all material respects”). We will thus analyze this case under 

§ 44-2828, but in doing so, we will also consider prior cases 

interpreting and applying § 25-222.

Section 44-2828 provides:

Except as provided in section 25-213, any action to 

recover damages based on alleged malpractice or professional negligence or upon any alleged breach of warranty 

in rendering or failing to render professional services shall 

be commenced within two years next after the alleged act 

or omission in rendering or failing to render professional 

services providing the basis for such action, except that 

if the cause of action is not discovered and could not 

be reasonably discovered within such two-year period, 

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. In no event may any action be commenced to recover damages for malpractice or professional negligence or breach of warranty in rendering or 

failing to render professional services more than ten years 

after the date of rendering or failing to render such professional service which provides the basis for the cause 

of action.

Pursuant to this language, an action must be commenced 

within 2 years of the date the limitations period began to run 

unless the cause of action was not or could not reasonably be 

discovered within that 2-year period. See Bonness v. Armitage, 

305 Neb. 747, 942 N.W.2d 238 (2020). The discovery exception is not at issue in this appeal. Instead, the question of 

whether the Bogues’ claim was timely filed hinges entirely on 

when the 2-year statute of limitations began to run.
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Does Continuous Treatment Doctrine Apply?

Upon first blush, the question of when the statute of limitations began to run might appear obvious. Section 44-2828 

provides that the action “shall be commenced within two 

years [of] the alleged act or omission in rendering or failing 

to render professional services providing the basis for such 

action.” We have recognized that such language provides for 

an “occurrence rule,” whereby the statute of limitations begins 

to run upon the alleged act or omission causing injury. See, 

e.g., Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994) 

(interpreting § 44-2828); Suzuki v. Holthaus, 221 Neb. 72, 375 

N.W.2d 126 (1985) (interpreting § 25-222). And there is no 

real dispute that the act or omission providing the basis for the 

Bogues’ action against Gillis occurred during Lori’s surgery in 

January 2017.

As it turns out, however, the statute of limitations issue in 

this case is not as simple as it may initially appear. It is complicated by our cases discussing and applying what we have 

referred to as the “continuous treatment doctrine.” See, e.g., 

Frezell v. Iwersen, 231 Neb. 365, 369, 436 N.W.2d 194, 198 

(1989). The Bogues, invoking some of those cases, argue that 

under the continuous treatment doctrine, the statute of limitations did not begin to run on their claim against Gillis until 

his treatment after Lori’s surgery concluded in mid-January 

2018. The Bogues acknowledge that they are not alleging and 

have no evidence that Gillis acted negligently after the January 

2017 surgery, but they contend that is immaterial. As they 

understand the continuous treatment doctrine, so long as Gillis’ 

subsequent treatment was related to the initial negligence, the 

doctrine applies and the statute of limitations did not begin to 

run until that related treatment concluded.

Gillis disagrees. While he concedes the Bogues have offered 

expert testimony that Gillis breached the standard of care during surgery and that his treatment of Lori through January 

2018 was related to that alleged negligence, he argues that 

this subsequent treatment does not affect when the statute of 
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limitations began to run. According to Gillis, the continuous 

treatment doctrine applies only when there has been a mis

diagnosis upon which incorrect treatment is subsequently given 

or a continuing course of negligent treatment. And because the 

evidence here would not permit an inference of either treatment 

provided pursuant to a misdiagnosis or a continuing course of 

negligent treatment, Gillis argues that the district court correctly determined that the statute of limitations began to run on 

the date of Gillis’ alleged negligence in January 2017.

At this point, we will acknowledge that both the Bogues 

and Gillis can point to cases decided by this court that are 

supportive of their respective understandings of the continuous treatment doctrine. We discuss those cases in some 

detail below.

Conflict Within Continuous 

Treatment Doctrine Cases.

Both parties agree that the origin of the continuous treatment doctrine in Nebraska can be traced to Williams v. Elias, 

140 Neb. 656, 1 N.W.2d 121 (1941), a decision issued by this 

court over 80 years ago. The Williams court was tasked with 

deciding whether the statute of limitations barred a medical 

malpractice lawsuit arising out of a doctor’s misdiagnosis of 

a plaintiff’s condition and subsequent treatment based on that 

misdiagnosis. The patient alleged that he first visited the doctor 

after suffering injuries to his back. The doctor diagnosed the 

patient with lumbago and proceeded to treat him accordingly 

for several months. When the plaintiff was later sent to a hospital, however, it was determined he actually had a fractured 

vertebra. As here, the timeliness of the lawsuit depended on 

when the governing statute of limitations began to run. If the 

statute of limitations began to run on the date of the initial 

misdiagnosis, the plaintiff’s lawsuit was filed too late. If, on 

the other hand, the statute of limitations began to run when the 

doctor’s treatment based on that misdiagnosis concluded several months later, it was timely filed. On appeal, the court sided 
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with the plaintiff and concluded that the statute of limitations 

began to run at the conclusion of the treatment.

In analyzing when the statute of limitations began to run, 

the Williams court primarily focused on when the doctor’s 

breach of duty occurred. The court rejected the doctor’s argument that “the faulty diagnosis, in and of itself, constituted the 

breach of duty.” Id. at 661, 1 N.W.2d at 123. It explained that 

the doctor’s duty was to diagnose the patient’s injuries and to 

“treat them in the manner usually done by physicians in his 

locality.” Id. at 662, 1 N.W.2d at 124. With that understanding in mind, the court concluded that the doctor continued to 

breach his duty to the patient for the entire time he was providing treatment based on a misdiagnosis. See id. (“[i]t was not 

the error in the diagnosis originally made by defendant but its 

adherence thereto and course of treatment that brought about 

the injuries”).

Although much of the court’s statute of limitations analysis 

in Williams was devoted to determining whether the doctor’s 

breach of duty continued beyond the initial misdiagnosis, in a 

concluding paragraph, the court referred to opinions in which 

other courts had held that a medical malpractice statute of limitations began to run at the conclusion of a course of treatment 

and identified a rationale for those opinions:

[I]t is just to the physician and surgeon that he may not 

be harassed by premature litigation instituted in order to 

save the right of the patient in the event there should be 

substantial malpractice. The physician and surgeon must 

have all reasonable time and opportunity to correct the 

evils which made the observation and treatment necessary 

and to correct the ordinary and usual mistakes incident to 

even skilled surgery. The doctrine announced in the foregoing cases is conducive to that mutual confidence which 

is highly essential in the relation between surgeon and 

patient. The treatment and employment should be considered as a whole, and if there occurred therein malpractice, 
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the statute of limitations should begin to run when the 

treatment ceased.

104 Neb. at 662-63, 1 N.W.2d at 124.

The statute of limitations that governed medical malpractice 

actions at the time Williams was decided provided that they 

must be brought within 2 years after the cause of action accrued. 

See, Comp. Stat. § 20-201 (1929); Comp. Stat. § 20-208 (Supp. 

1939). Over three decades later, §§ 44-2828 and 25-222 were 

enacted. See, 1976 Neb. Laws, L.B. 434, § 28; 1972 Neb. Laws, 

L.B. 1132, § 1. As we have noted, these statutes of limitation 

provide that a 2-year limitations period begins to run upon the 

“act or omission” providing the basis for the action unless the 

case falls within an exception set forth in the statute for claims 

that are not and cannot be discovered within that period.

In the years that followed the enactment of §§ 44-2828 

and 25-222, two different lines of authority emerged from 

this court as to how continuous treatment can affect the point 

at which the statute of limitations begins to run in a medical 

malpractice action. One line of authority followed the initial 

inquiry in Williams and centered on whether the defendant’s 

breach of duty continued through the course of the treatment. 

Under this line of authority, only if the defendant’s negligence 

continued through the course of treatment would the statute of 

limitations begin to run when the treatment ceased.

The other line of authority that emerged focused on the 

concluding paragraph of Williams quoted above, particularly 

its emphasis on providing physicians an opportunity to correct 

mistakes made during treatment. This line of authority held 

that the statute of limitations would begin to run when any 

treatment related to the alleged negligence ceased, even if that 

subsequent treatment was not itself alleged to be negligent.

An example of the former approach is found in Tiwald v. 

Dewey, 221 Neb. 547, 378 N.W.2d 671 (1985). In that case, 

a plaintiff’s malpractice claim was based on x-ray treatments 

his doctor provided to treat his allergies. The doctor later provided other forms of treatment for the same condition, and the 
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patient contended that the statute of limitations began to run 

when those other treatments ceased. The plaintiff did not, however, contend that the doctor was negligent in providing those 

subsequent treatments. In the course of rejecting the plaintiff’s 

argument, the Tiwald court noted the plaintiff’s reliance on 

Williams, but explained that in Williams,

there was a continuing course of negligent treatment, 

as opposed to single or isolated acts of negligence. The 

malpractice in Williams can be characterized as a continuing tort because the physician persisted in continuing and 

repeating the wrongful treatment because of the incorrect 

diagnosis. Thus, the statute of limitations did not begin 

to run until the continuing negligent treatment which was 

the basis of the plaintiff’s claim had ended.

221 Neb. at 551, 378 N.W.2d at 673.

The court concluded that because the plaintiff alleged only 

isolated acts of negligence, the statute of limitations began 

to run after the completion of the x-ray treatments. Later, 

in Ames v. Hehner, 231 Neb. 152, 435 N.W.2d 869 (1989), 

the court relied on the above-quoted language from Tiwald

and also focused on whether there was continuing negligent treatment.

In Frezell v. Iwersen, 231 Neb. 365, 436 N.W.2d 194 (1989), 

the court again focused on whether the defendant provided 

continuing negligent treatment. In Frezell, the plaintiff’s claim 

was based on negligence during surgery, but the defendant 

continued to treat complications arising from that surgery for 

several years thereafter. Again, the issue was when the statute 

of limitations began to run. This court rejected the plaintiff’s 

argument that the limitations period began to run after the 

defendant stopped treating the complications. It stated that 

“[t]he continuous treatment doctrine applies when there has 

been either a misdiagnosis upon which incorrect treatment is 

given or when there has been a continuing course of negligent treatment. It does not apply where there have been only 

isolated acts of negligence.” Id. at 369, 436 N.W.2d at 198. 
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Because the plaintiff did not allege that the treatment after the 

surgery was negligent, the court held that the statute of limitations began to run on the date of the surgery. See, also, Weyers 

v. Community Memorial Hosp., 30 Neb. App. 520, 971 N.W.2d 

155 (2022) (concluding continuous treatment doctrine did not 

apply because treatment following alleged negligence was not 

also alleged to be negligent).

But, as noted above, this court has not been consistent. In a 

number of other cases, we stated that the continuous treatment 

doctrine had been “merged” into the occurrence rule such that 

the period of limitations or repose “begins to run when the 

treatment rendered after and relating to the allegedly wrongful 

act or omission is completed.” Healy v. Langdon, 245 Neb. 1, 

5, 511 N.W.2d 498, 501 (1994). See, also, Carruth v. State, 271 

Neb. 433, 712 N.W.2d 575 (2006); Casey v. Levine, 261 Neb. 

1, 621 N.W.2d 482 (2001); Weaver v. Cheung, 254 Neb. 349, 

576 N.W.2d 773 (1998); Kocsis v. Harrison, 249 Neb. 274, 

543 N.W.2d 164 (1996); Ourada v. Cochran, 234 Neb. 63, 449 

N.W.2d 211 (1989); Barry v. Bohi, 221 Neb. 651, 380 N.W.2d 

249 (1986). These cases make no mention of a requirement that 

the treatment rendered after and relating to an allegedly wrongful act or omission must also be negligent.

The clearest application of this more expansive version of 

the continuous treatment doctrine and the case most heavily relied upon by the Bogues is Healy, supra. In Healy, the 

plaintiff alleged that her doctor failed to obtain her informed 

consent to provide chemotherapy treatments and that when she 

subsequently developed complications, the doctor continued 

to treat her complications. The court concluded that because 

the treatment for the complications was related to the treatment for which the doctor failed to obtain informed consent, 

the statute of limitations began to run at the conclusion of 

the treatment for the complications. No suggestion was made, 

however, that the treatment for the complications was negligent. In Healy, the court attempted to harmonize prior cases 

discussing the continuous treatment doctrine but did not cite 
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Frezell v. Iwersen, 231 Neb. 365, 436 N.W.2d 194 (1989), 

which was decided 5 years before.

The conflict within our continuous treatment cases has not 

gone unnoticed. In Joyner v. Forney, 78 F.3d 1339 (8th Cir. 

1996), a party appealed a federal district court’s entry of summary judgment on statute of limitations grounds in a medical 

malpractice action governed by Nebraska law. In that appeal, 

the U.S. Court of Appeals for the Eighth Circuit rejected the 

plaintiff’s argument that his claim was timely due to the application of the continuous treatment doctrine. It relied on Frezell, 

supra, and explained that the continuous treatment doctrine did 

not apply in the way the plaintiff contended, because there was 

no evidence that the defendants’ postoperative treatment was 

negligent. When the plaintiff later filed a motion for rehearing 

contending that the continuous treatment doctrine can delay 

the commencement of the limitations period even if related 

treatment following the alleged negligent act or omission is not 

itself negligent, the Eighth Circuit observed that it was “hard 

to reconcile this apparent disparity among the Nebraska cases.” 

Joyner, 78 F.3d at 1344.

In our view, the Eighth Circuit was being polite. The disparity in our continuous treatment doctrine cases is more than 

apparent, and we do not believe it can be coherently reconciled. In the line of cases that includes Frezell, supra, we have 

held that the continuous treatment doctrine applies only if there 

has been a continuing course of negligent treatment. In the 

line of cases that includes Healy v. Langdon, 245 Neb. 1, 511 

N.W.2d 498 (1994), we have held that the doctrine applies if 

there is a continuing course of treatment following and related 

to the alleged negligence, without any requirement that the 

subsequent treatment be negligent.

This case does not allow us to whistle past those divergent 

lines of precedent. Gillis would be entitled to summary judgment if Frezell controls, but would not if Healy controls. As a 

result, we must decide which line of cases to follow and which 

line of cases to overrule. We turn to that question now.
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Resolution of Conflict.

[4,5] When called to decide whether precedent should be 

followed or overruled, courts often consider what one member 

of the U.S. Supreme Court recently described as “precedents 

on precedent.” Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 

1390, 1412, 206 L. Ed. 2d 583 (2020) (Kavanaugh, J., concurring). “Precedents on precedent” are opinions in which 

courts have set forth principles to be considered in deciding 

whether prior cases should be overruled. This court has identified several such principles, and we find some of them especially relevant to this case. We have said, for example, that 

while the doctrine of stare decisis is entitled to great weight, 

it is grounded in the public policy that the law should be 

stable, fostering both equality and predictability of treatment. 

Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). 

We have also recognized that overruling precedent is justified 

when the purpose is to eliminate inconsistency. Id. And we 

have said that remaining true to an intrinsically sounder doctrine better serves the values of stare decisis than following a 

more recently decided case inconsistent with the decisions that 

came before it. Id.

Applying those principles here, we find it appropriate to 

consider whether one line of our inconsistent continuous treatment doctrine cases is intrinsically sounder than the other. 

We believe consideration of that question must begin with 

the statutory language of § 44-2828. It is, after all, a statute

of limitations that determines whether the Bogues’ claim was 

timely filed.

As discussed above, § 44-2828 plainly provides for an 

occurrence rule whereby the limitations period begins to run 

upon “the alleged act or omission . . . providing the basis 

for [the] action,” unless the specifically described discovery 

exception applies. We see no way in which the occurrence 

rule provided for in the text of § 44-2828 can be squared with 

the version of the continuous treatment doctrine preferred 

by the Bogues and applied in the line of cases that includes 
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Healy, supra. Under that version of the continuous treatment 

doctrine, the limitations period can begin to run long after the 

date of the alleged act or omission that provides the basis for 

the action, even when the discovery exception does not apply. 

For example, in this case, the Bogues argue that the statute of 

limitations began to run after Lori’s appointment with Gillis in 

mid-January 2018, even though they concede that the only act 

or omission providing the basis for her action occurred during 

the surgery in January 2017 and that the discovery exception 

does not apply.

Not only does § 44-2828’s discovery exception not apply in 

this case, its existence makes the Bogues’ preferred version of 

the continuous treatment doctrine especially difficult to justify. 

Ordinarily, when a statute specifically provides for exceptions, 

we will not recognize others judicially. See In re Guardianship 

of Eliza W., 304 Neb. 995, 1006, 938 N.W.2d 307, 315 (2020) 

(“[o]ne of our rules of statutory interpretation provides that 

when a statute specifically provides for exceptions, items not 

excluded are covered by the statute”). See, also, Dondlinger 

v. Nelson, 305 Neb. 894, 942 N.W.2d 772 (2020) (Papik, J., 

concurring) (contending that recognition of continuous representation doctrine in context of § 25-222 is contrary to this rule 

of statutory interpretation). Here, however, the version of the 

continuous treatment doctrine applied in Healy v. Langdon, 245 

Neb. 1, 511 N.W.2d 498 (1994), could exist only as a judicially 

recognized exception to the occurrence rule despite the presence of the statutorily authorized discovery exception.

In contrast to the line of cases including Healy, the line of 

cases including Frezell v. Iwerson, 231 Neb. 365, 436 N.W.2d 

194 (1989), can be more easily reconciled with the text of 

§ 44-2828. Again, that line of cases holds that the limitations 

period begins to run at the conclusion of a course of treatment 

only if there has been treatment pursuant to a misdiagnosis or a 

continuing course of negligent treatment. When there has been 

treatment provided pursuant to a misdiagnosis or a continuing 

course of negligent treatment, the entire course of treatment 
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can be understood as the “act or omission . . . providing the 

basis for [the] action.” § 44-2828. See, also, Williams v. Elias, 

140 Neb. 656, 662, 1 N.W.2d 121, 124 (1941) (“[i]t was not 

the error in the diagnosis originally made by defendant but its 

adherence thereto and course of treatment that brought about 

the injuries”). Other courts have likewise concluded that while 

an expansive continuous treatment doctrine like that expressed 

in Healy is inconsistent with statutes of limitations similar 

to § 44-2828, the same problem is not created by a rule in 

which the limitations period begins at the conclusion of a continuous course of negligent treatment. See, e.g, Cunningham 

v. Huffman, 154 Ill. 2d 398, 609 N.E.2d 321, 182 Ill. Dec. 18 

(1993); Ewing v. Beck, 520 A.2d 653 (Del. 1987).

At oral argument, counsel for the Bogues candidly acknowledged that the version of the continuous treatment doctrine 

preferred by the Bogues and exemplified by Healy, supra, 

is not “literally” compatible with the statutory language of 

§ 44-2828. Counsel nonetheless argued that we should follow 

that line of cases, invoking the doctrine of legislative acquiescence and policy considerations.

We are not persuaded that the doctrine of legislative acquiescence assists the Bogues. We have said that where a statute 

has been judicially construed and that construction has not 

evoked an amendment, it will be presumed that the Legislature 

has acquiesced in the court’s determination of the Legislature’s 

intent. Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 

(2017). We have refused to apply the doctrine, however, when 

“there has been no interpretation of any statute in which the 

Legislature could be characterized to have acquiesced.” Id.

at 465, 894 N.W.2d at 302. That is the case here. While there 

are cases in which this court applied the expanded version of 

the continuous treatment doctrine preferred by the Bogues, 

those cases did not conclude that the doctrine applied as a 

result of the language of § 44-2828 or § 25-222. And, even 

setting that issue aside, the Bogues are unable to explain how 

we would go about determining which of our conflicting lines 
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of continuous treatment doctrine cases the Legislature has 

acquiesced in.

This leaves the Bogues’ policy argument. They argue that 

the version of the continuous treatment doctrine exemplified 

by Healy provides physicians with a period of time in which 

the statute of limitations will not run when they can attempt 

to correct any mistakes. They point out that the concluding 

paragraph of Williams, supra, extolled the benefits of giving 

physicians such an opportunity.

We do not disagree with the Bogues that the version of the 

continuous treatment doctrine set forth in Healy is more consist

ent with a policy goal of providing doctors an opportunity to 

correct their mistakes before the statute of limitations starts to 

run. We disagree with the Bogues, however, to the extent they 

suggest that this court should have unilaterally departed from 

the governing statutory text in an effort to promote this policy 

goal. While a rational policy argument could be made for a 

rule that allows doctors a period of time to address complications caused by their alleged negligence before the statute of 

limitations begins to run, a rational policy argument could also 

be made for an occurrence rule with a discovery exception. 

Indeed, this court has previously observed that § 25-222 was 

enacted “to insure that actions based upon professional negligence would be brought shortly after the alleged negligence 

occurred or was discovered so that the professional could have 

a fair chance to defend on the merits and not find his defenses 

eroded by the lapse of time.” Swassing v. Baum, 195 Neb. 651, 

658, 240 N.W.2d 24, 28 (1976). We highlight these competing policy arguments not to choose one side or the other, but 

to observe that once the Legislature has enacted a statute, the 

resolution of those arguments is not our job. As we often say, 

“[i]t is the function of the Legislature, through the enactment 

of statutes, to declare what is the law and public policy of this 

state.” Rogers v. Jack’s Supper Club, 304 Neb. 605, 614, 935 

N.W.2d 754, 762 (2019).
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As for the Bogues’ contention that Williams v. Elias, 140 

Neb. 656, 1 N.W.2d 121 (1941), recognized the benefits of giving doctors an opportunity to attempt to correct their mistakes 

as a policy rationale for the continuous treatment doctrine, we 

do not believe that informs the question of when the statute of 

limitations begins to run under § 44-2828. Even assuming that 

this court determined in Williams that the then-governing statute of limitations should start to run at the conclusion of any 

treatment related to the alleged act or omission at issue regardless of whether that subsequent treatment was negligent, the 

statute of limitations that applied in Williams no longer applies 

today. The Legislature passed new statutes of limitations governing medical malpractice actions in the 1970s—§§ 44-2828 

and 25-222. See, 1976 Neb. Laws, L.B. 434, § 28; 1972 Neb. 

Laws, L.B. 1132, § 1. The Legislature could have at that time 

incorporated a continuous treatment rule like the one the 

Bogues argue was adopted in Williams. As we have discussed, 

it did not.

Because we find it to be the analytically sounder rule, we 

reaffirm those cases holding that the continuous treatment 

doctrine applies only when there has been a misdiagnosis 

upon which incorrect treatment is given or when there has 

been some other continuing course of negligent treatment. We 

disapprove of Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 

(1994), and other cases to the extent they suggest that under 

the continuous treatment doctrine, the statute of limitations in 

a medical malpractice action starts to run upon the conclusion 

of any treatment related to the alleged act or omission forming the basis for the cause of action, even if that subsequent 

treatment is not alleged to be negligent. See, e.g., Carruth v. 

State, 271 Neb. 433, 712 N.W.2d 575 (2006); Casey v. Levine, 

261 Neb. 1, 621 N.W.2d 482 (2001); Weaver v. Cheung, 254 

Neb. 349, 576 N.W.2d 773 (1998); Kocsis v. Harrison, 249 

Neb. 274, 543 N.W.2d 164 (1996); Ourada v. Cochran, 234 

Neb. 63, 449 N.W.2d 211 (1989); Barry v. Bohi, 221 Neb. 651, 
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380 N.W.2d 249 (1986); Smith v. Dewey, 214 Neb. 605, 335 

N.W.2d 530 (1983).

Application.

Having rejected the version of the continuous treatment 

doctrine preferred by the Bogues, there is little more to say 

about this case. As we have noted, the act or omission that 

forms the basis for their action occurred during Lori’s surgery in January 2017. There is no evidence from which it 

could be inferred that Gillis was negligent after that surgery. 

Accordingly, under the undisputed facts, the statute of limitations began to run in January 2017. The Bogues’ January 2020 

complaint was not timely filed, and Gillis was entitled to summary judgment.

CONCLUSION

The district court did not err in granting Gillis summary 

judgment on statute of limitations grounds. Accordingly, 

we affirm.

Affirmed.