Professional Negligence Law Reporter

The Nebraska Supreme Court held that the limitations period for a patient’s malpractice claim began when he received his prostate cancer diagnosis.

Richard Bonness had a family history of prostate cancer. He underwent prostate specific antigen (PSA) tests multiple times following his father’s death from the disease. Later, in 2010, Bonness became the patient of physician Joel Armitage, and the two allegedly discussed Bonness’s desire to be screened for prostate cancer. Armitage allegedly told Bonness that PSA testing was not warranted in 2010, 2011, or 2013. When Bonness did undergo a PSA test in 2015, he was referred for a prostate biopsy, which led to a cancer diagnosis in January 2015. Bonness underwent surgery and was deemed cancer-free; however, his cancer recurred in June 2016.

In June 2017, Bonness sued Armitage for negligence and failure to obtain informed consent. The plaintiff also filed an amended complaint in January 2018. The defense moved to dismiss on limitations grounds, and the trial court granted dismissal.

Affirming, the state high court noted that under the limitations statute applicable to professional negligence lawsuits, claims must be commenced within two years of the date the limitations period began to run unless the action could not have been discovered within that two-year period. If that is the case, the lawsuit must be commenced within one year after the cause of action is discovered. The court rejected the plaintiff’s argument that he could not have reasonably discovered his claims until he learned his prostate cancer had returned. Citing case law, the court said that in deciding when a plaintiff discovers a cause of action for limitations purposes, a court should focus on when the plaintiff knows of the existence of an injury, not the extent of the resulting damage. Here, the court found, when Bonness was diagnosed as having cancer, especially in light of his family history, he could have performed a reasonable inquiry, which would have led him to discover the facts constituting the basis of his cause of action.

Accordingly, the court concluded that the limitations period for the plaintiff’s lawsuit began in January 2015, which deems his claims untimely under both the two-year and one-year provisions.

Citation: Bonness v. Armitage, 942 N.W.2d 238 (Neb. 2020).