NE Code § 25-222 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-222 - Actions on professional negligence.

25-222.  Actions on professional negligence.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.Source  Laws 1972, LB 1132, § 1. Annotations  1. Constitutionality 2. Computation of time 3. Applicability 4. Miscellaneous 1. Constitutionality Defining substantive rights is a valid exercise of legislative power, and thus, this section does not violate the open courts provision of the Nebraska Constitution. Schendt v. Dewey, 246 Neb. 573, 520 N.W.2d 541 (1994). The ten-year period of repose contained in this section is constitutional. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987); Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982). No constitutional objection lies where seven years intervenes between enactment of period of limitations and bringing of action. Cedars Corp. v. Swoboda, 210 Neb. 180, 313 N.W.2d 276 (1981). 2. Computation of time In order for a continuous relationship to toll the statute of limitations regarding a claim for malpractice, there must be a continuity of the relationship and services for the same or related subject matter after the alleged professional negligence. Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007). The discovery exception of this section is a tolling provision which permits the filing of an action after the 2-year statute of limitations only in those circumstances where the cause of action was not discovered and could not reasonably have been discovered within that period. Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006). A claim for malpractice against a hospital based upon the negligence of its nursing staff accrues when the patient is discharged from the hospital and the continuing treatment doctrine does not toll the statute of limitations for subsequent admissions at the hospital authorized by the patient's affiliated but independent physician. Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001). A plaintiff seeking to extend the tolling of the 2-year statute of limitations in a medical malpractice case must prove facts which indicate that the physician continued to treat him or her after the allegedly wrongful act or omission and that the treatment was related to the alleged negligence. Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001). Nebraska follows the occurrence rule, under which a professional negligence suit accrues at the time the act or omission in rendering or failing to render professional services takes place. 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. In a cause of action for professional negligence, legal injury is the wrongful act or omission which causes the loss; it is not damage, which is the loss resulting from the misconduct. A lack of knowledge of the extent of damages is not the equivalent of a lack of discovery of a cause of action as set out in this section. Gering - Ft. Laramie Irr. Dist. v. Baker, 259 Neb. 840, 612 N.W.2d 897 (2000). In order for a continuous relationship to toll the statute of limitations regarding a claim for malpractice, there must be a continuity of the relationship and services for the same or related subject matter after the alleged professional negligence. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999). The discovery exception permits an action to be commenced within 1 year from discovery where the cause of action could not have reasonably been discovered during the 2-year limitation period of this section. If facts are discovered that constitute the basis of a cause of action within 2 years from the alleged act of negligence, the discovery exception to the statute of limitations is inapplicable. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999). If the facts constituting a malpractice claim are not and could not be reasonably discovered within the 2-year limitation period, the claim may be brought within 1 year from the date of discovery or within 1 year from the date the plaintiff acquires facts that would lead to such discovery. World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996). The 1-year discovery exception provided for in this section tolls the statute of limitations, permitting an injured party to bring an action beyond the time limitation for bringing the action in those cases in which the injured party did not discover and could not reasonably have discovered the existence of the cause of action within the applicable statute of limitations. The 1-year discovery exception provided for in this section does not apply in actions governed under section 25-208 if the injured party knew or could reasonably have discovered the cause of action within the time set forth in section 25-208. In actions governed under section 25-208, the 1-year discovery exception provided for in that section only applies if the injured party did not know or could not reasonably have discovered the existence of the cause of action within the time period provided for in that section. Berntsen v. Coopers & Lybrand, 249 Neb. 904, 546 N.W.2d 310 (1996). Under discovery principle, cause of action for professional negligence accrues and 1-year discovery provision begins to run when there has been discovery of facts constituting basis of cause of action or existence of facts sufficient to put person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to discovery; it is not necessary that plaintiff have knowledge of exact nature or source of problem, but only knowledge that problem existed. If professional malpractice action is not to be considered time barred, plaintiff must either file within 2 years of alleged act or omission or show that its action falls within exceptions of this section as to its discovery of defendant's alleged negligence. Zion Wheel Baptist Church v. Herzog, 249 Neb. 352, 543 N.W.2d 445 (1996). If an action is not to be considered time barred, plaintiff must either file within 2 years of the alleged act or omission or show that the action falls within the exceptions of this section as to the discovery of defendant's alleged negligence. A cause of action accrues for negligence in professional services when the alleged act or omission in rendering or failure to render professional services takes place. The continuous representation rule, which tolls the running of the statute of limitations, is inapplicable where the claimant discovers the alleged negligence prior to the termination of the professional relationship. Lindsay Mfg. Co. v. Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994). The continuous treatment or representation rule is inapplicable where the claimant discovers the alleged negligence prior to the termination of the professional relationship. The 2-year statute of limitations is not tolled where the plaintiff discovers the alleged negligence within 2 years of the allegedly negligent act or omission, and therefore, a professional negligence action is barred unless filed within 2 years of the occurrence of such act or omission. Economy Housing Co. v. Rosenberg, 239 Neb. 267, 475 N.W.2d 899 (1991). In order for a continuous relationship to toll the statute of limitations regarding a claim for malpractice, there must be a continuity of the relationship and services for the same or related subject matter after the alleged professional negligence. McCook Equity Exch. v. Cooperative Serv. Co., 230 Neb. 758, 433 N.W.2d 509 (1988); Lincoln Grain v. Coopers & Lybrand, 215 Neb. 289, 338 N.W.2d 594 (1983). Under the discovery principle, a cause of action accrues and the 1-year discovery provision of this section begins to run, when there has been discovery of facts constituting the basis of the cause of action or the existence 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 v. Wilscam Mullins Birge, 230 Neb. 675, 433 N.W.2d 478 (1988). If action is not to be considered time-barred, plaintiff must either file within two years of alleged act or omission or show that its action falls within the exceptions of this section as to its discovery of defendant's alleged negligence. Kelly Klosure v. Johnson Grant & Co., 229 Neb. 369, 427 N.W.2d 44 (1988). A cause of action accrues and the statute of limitations begins to run at the time of the act or omission which is alleged to be the professional negligence that is the basis for the cause of action. Tiwald v. Dewey, 221 Neb. 547, 378 N.W.2d 671 (1985). A statute of limitations may begin to run before the full extent of damages is sustained. Suzuki v. Holthaus, 221 Neb. 72, 375 N.W.2d 126 (1985). This section requires that the action for malpractice be commenced within two years after the alleged act or omission and contains a provision for deferred commencement if the cause of action is not discovered and could not be reasonably discovered within such two-year period. Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186 (1984). Ten-year statute of repose runs from time of physician's treatment rather than the date of the termination of the physician-patient relationship. Smith v. Dewey, 214 Neb. 605, 335 N.W.2d 530 (1983). A cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such a plaintiff may be ignorant of the existence of the cause of action. These matters are determined from the facts of each case. Interholzinger v. Estate of Dent, 214 Neb. 264, 333 N.W.2d 895 (1983). The 1-year discovery exception in this section is a tolling provision, but it applies only in those cases in which the plaintiff did not discover, and could not have reasonably discovered, the existence of the cause of action within the applicable statute of limitations. Walz v. Harvey, 28 Neb. App. 7, 938 N.W.2d 110 (2020). Nebraska has a 2-year statute of limitations for actions for professional negligence except that causes of action not discovered, and which could not have been reasonably discovered until after the limitations period has run, can be filed within 1 year of discovery, with an overall limitation of 10 years after the date of rendering or failing to render such professional service which provides the basis for the cause of action. Anonymous v. Vasconcellos, 15 Neb. App. 363, 727 N.W.2d 708 (2007). Under the 1-year discovery provision of this section, 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. Anonymous v. Vasconcellos, 15 Neb. App. 363, 727 N.W.2d 708 (2007). In considering whether the discovery exception to the professional negligence statute of limitations applies, a court may consider the complexity of the documents and whether representations as to the contents of the documents were made in determining whether the case presents a factual question to be determined by the trier of fact. In-Line Suspension v. Weinberg & Weinberg, 12 Neb. App. 908, 687 N.W.2d 418 (2004). A suit filed against an abstractor was time barred under this section because it was not filed within 1 year of discovery and because it was filed more than 10 years after the omission upon which the claim was based. Cooper v. Paap, 10 Neb. App. 243, 634 N.W.2d 266 (2001). Section 25-213 tolls the running of the time limitation under this section until an infant reaches the age of majority. Hatfield v. Bishop Clarkson Memorial Hosp., 679 F.2d 1258 (8th Cir. 1982). 3. Applicability A massage therapist is not a "professional" for the purpose of application of the professional negligence statute of limitations; while a massage therapist is required to be licensed, the licensing requirements do not require long and intensive training or preparation, including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, which would be comparable to that of a college degree, and the standards for membership in the occupation of massage therapy did not include high standards of achievement. Wehrer v. Dynamic Life Therapy & Wellness, 302 Neb. 1025, 926 N.W.2d 107 (2019). Each of the elements set forth in the Tylle definition of "profession" are considered to be necessary and not merely possible factors for consideration; therefore, to constitute a "profession" within the meaning of this section, a particular type of endeavor must meet all of the principal elements. Wehrer v. Dynamic Life Therapy & Wellness, 302 Neb. 1025, 926 N.W.2d 107 (2019). Great emphasis is placed on college degrees in considering whether a particular occupation is a "profession" for the purpose of applying this section. Wehrer v. Dynamic Life Therapy & Wellness, 302 Neb. 1025, 926 N.W.2d 107 (2019). In analyzing whether a particular group or organization meets the definition of a "profession" for purposes of the professional negligence statute of limitations, each of the following principal elements must be demonstrated, as an occupation is not a "profession" unless: (1) The profession requires specialized knowledge; (2) the profession requires long and intensive preparation; (3) preparation must include instruction in skills and methods of the profession; (4) preparation must include scientific, historical, or scholarly principles underlying the skills and methods of the profession; (5) membership in a professional organization is required; (6) a professional organization or concerted opinion within an organization regulates and enforces standards for membership; (7) the standards for membership include high standards of achievement; (8) the standards for membership include high standards of conduct; (9) its members are committed to continued study; (10) its members are committed to a specific kind of work; and (11) the specific kind of work has for its primary purpose the rendering of a public service. Wehrer v. Dynamic Life Therapy & Wellness, 302 Neb. 1025, 926 N.W.2d 107 (2019). A license, the preparation and training required to procure the license, work performed to render a professional service, continuing education requirements, and a professional disciplinary authority all indicate a person is a “professional.” Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53 (2013). A plaintiff brought an action after being injured when she stepped from the last step of an aboveground pool onto a puddle. She was in the pool for physical therapy treatment, and her physical therapist directed her to leave the pool. The injuries arose while the plaintiff was receiving professional services, and this section applied to the action. Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53 (2013). Physical therapists are “professionals” under this section. Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53 (2013). Causes of action or theories of recovery that are premised on excessive fees concern professional misconduct, and thus, this section applies. Nuss v. Alexander, 269 Neb. 101, 691 N.W.2d 94 (2005). Agents of broker-dealers in securities are not professionals for purposes of the statute of limitations under this section. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004). The definition of "profession" for purposes of the professional negligence statute of limitations under this section is (1) a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, (2) maintaining by force of organization or concerted opinion high standards of achievement and conduct, and (3) committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004). Where a party's claims are for professional malpractice, whether pled in tort or contract, the statute of limitations for professional negligence contained in this section applies. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004). If claims are for professional malpractice, whether pled in tort or contract, the statute of limitations for professional negligence contained in this section applies. A cause of action for professional negligence accrues when the alleged act or omission in rendering or failing to render professional services takes place. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999). A profession is no longer defined as an occupation involving specialized knowledge, labor, or skill, which labor and skill is predominantly mental or intellectual, rather than physical or manual; a profession is now defined as a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service. Jorgensen v. State Nat. Bank & Trust Co., 255 Neb. 241, 583 N.W.2d 331 (1998). An action against a physician to recover damages for an injury sustained while the physician is adjusting the examination chair is within the professional negligence statute of limitations. Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 (1989). Any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties is malpractice and comes within the professional or malpractice statute of limitations. Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 (1989). Architects and engineers are professionals for the purposes of this section. Board of Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433 N.W.2d 478 (1988). The 2-year statute of limitations in this section, applicable to an architect who has the responsibility to design a building and a duty to inspect throughout construction, begins to run when the construction is completed. Board of Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433 N.W.2d 478 (1988). Engineers are professionals for the purposes of this section, and this section applies to an action against such a professional, even though the professional services rendered by the engineer amount to an improvement to real property. Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988). Within the meaning of this section, the professional negligence statute of limitations, a profession rendering professional services is defined as a calling requiring specialized knowledge and often long and intensive preparation, including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service. Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988). Real estate brokerage is not a profession and, therefore, is not to be afforded protection under the statute of limitations governing actions for professional negligence. Tylle v. Zoucha, 226 Neb. 476, 412 N.W.2d 438 (1987). Where an architect has a professional responsibility to supervise construction and to see that all walls are in fact constructed, his failure to do so is a professional act to which this section applies. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987). Architects and engineers are professionals for the purposes of this section. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985). The period of repose applicable to an architect who has a duty to inspect throughout construction is contained in this section and begins to run when construction is completed. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985). The period of repose applicable to an engineer who has no duty other than to provide a design to an architect is contained in this section and begins to run when the design is delivered to the architect. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985). Abstractors are professionals for the purposes of this section. Cooper v. Paap, 10 Neb. App. 243, 634 N.W.2d 266 (2001). 4. Miscellaneous In a professional negligence action, a physician did not waive and was not estopped from asserting as a defense the statute of limitations set forth in this section, where the physician engaged in discovery after a complaint was filed rather than immediately moving to dismiss the complaint on statute of limitations grounds. Bonness v. Armitage, 305 Neb. 747, 942 N.W.2d 238 (2020). The claim of a conflict of interest is a cause of professional malpractice limited by the 2-year statute of limitations for professional negligence. Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002). The statute of limitations defense is waived if it is not asserted in the pleadings. Welsch v. Graves, 255 Neb. 62, 582 N.W.2d 312 (1998). Equitable estoppel arises from a failure to disclose material information when a fiduciary or confidential relationship exists between a physician and a patient. Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997). The doctrine of fraudulent concealment estops a defendant from asserting a statute of limitations defense when the defendant has, either by deception or by violation of a duty, concealed from the plaintiff material facts which prevent the plaintiff from discovering malpractice. Equitable estoppel arises from active or affirmative efforts to conceal malpractice. Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997). When prisoner filed grievance with corrections department and threatened legal action for injury suffered during tooth extraction, injury was discovered under this statute. Gordon v. Connell, 249 Neb. 769, 545 N.W.2d 722 (1996). Nondiscovery of all damages is not the equivalent of nondiscovery of a cause of action. Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505 (1995). A client has knowledge of his attorney's alleged negligence at the time the client signs the contract. Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989). For the statute to begin running, it is not necessary that the plaintiff have knowledge of the exact nature or source of the problem, but only knowledge that a problem existed. The plaintiff need not have suffered actual damages, but there must be an invasion of a legally protected interest. Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989). Discovery, as applied to statutes of limitations, refers to the fact that one knows of the existence of an injury or damage and not that he or she has a legal right to seek redress in court. Norfolk Iron & Metal v. Behnke, 230 Neb. 414, 432 N.W.2d 18 (1988). Discovery, as used in reference to a statute of limitations, means that an individual acquires knowledge of a fact which existed but which was previously unknown to the discoverer. Norfolk Iron & Metal v. Behnke, 230 Neb. 414, 432 N.W.2d 18 (1988). Nondiscovery of all damages is not the equivalent of nondiscovery of a cause of action as set out in this section relating to the statute of limitations for professional negligence. Norfolk Iron & Metal v. Behnke, 230 Neb. 414, 432 N.W.2d 18 (1988). The alleged failure to communicate an offer of settlement in a dissolution action cannot be made the basis of a claimed act of professional negligence absent evidence that the proposed settlement was not unconscionable and would therefore likely have been approved by the district court. Smith v. Ganz, 219 Neb. 432, 363 N.W.2d 526 (1985). A person under a legal disability described in section 25-213 is exempted from the provisions of this section until the legal disability is removed. Sacchi v. Blodig, 215 Neb. 817, 341 N.W.2d 326 (1983). Death of doctor before two-year statute of limitations expires does not extinguish negligence claim against his estate. Davies v. Reese, 197 Neb. 320, 248 N.W.2d 344 (1977). If the cause of action for professional negligence is not discovered and could not reasonably be discovered within two years, an action may be commenced within one year from the date of discovery, or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. Taylor v. Karrer, 196 Neb. 581, 244 N.W.2d 201 (1976). Special two-year statute of limitations controlled action against doctor based on erroneous blood typing by his employee. Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976). Plaintiff had a reasonable time after this act which reduced limitation period was passed and became effective to file its action, and having failed to do so within such time, the action is barred. Educational Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222 N.W.2d 125 (1974). If all of a plaintiff's claims are based upon a single professional relationship, whether pled in tort or contract, the statute of limitations for professional negligence applies and cannot be circumvented by separating the claims into various parts to allow different periods of limitation to apply. Gering - Ft. Laramie Irr. Dist. v. Baker, 8 Neb. App. 1001, 606 N.W.2d 826 (2000). Federal courts were not precluded from consideration of statutory vagueness by Nebraska decision as to retrospective impact, and motion to dismiss action against architects and engineers for professional negligence appropriately raised statute of limitations defense where plaintiff did not allege facts to invoke exception to it for causes of action which could not reasonably be discovered within two-year limitation period. Horn v. Burns & Roe, 536 F.2d 251 (8th Cir. 1976).