Professional Negligence Law Reporter

A Nebraska appellate court held that a man’s professional negligence lawsuit against the mental health practitioner who provided counseling services to him and his former wife was time-barred under the state’s two-year limitations statute and one-year discovery rule.

Jeffrey Harvey, a mental health practitioner employed by Spence Counseling, provided marriage counseling services to Michael Walz and his then-wife, Alison Walz. The couple divorced in March 2014, and Michael reportedly learned that August that Alison and Harvey were dating. On Dec. 1, 2016, Michael sued Harvey and Spence Counseling, alleging professional malpractice. The trial court granted summary judgment for the defense on limitations grounds.

Affirming, the appellate court noted that the point at which a limitations period begins to run is determined by the facts. Under Neb. Rev. Stat. §25-222, the court said, the limitations period for professional negligence is two years after the occurrence of the alleged act or omission, unless the discovery exception applies. In that instance, the court said, an action may be commenced within one year from the date of an injury’s discovery or from the date of the discovery of facts that would reasonably lead to discovery of an injury’s existence.

Applying these principles here, the court said that the plaintiff had sufficient information by December 2014, when his children told him that Harvey and Alison were romantically involved. Additionally, the court said, the plaintiff had met with Harvey’s employer, who informed him that a counselor’s romantic involvement with a former client was not appropriate or acceptable behavior. Thus, the court said, these facts should have put a reasonable person on notice of the existence of a cause of action and, under the discovery rule, the plaintiff had until December 2015 to file his claims. The plaintiff’s suit, filed in December 2016, were therefore untimely.

Citation: Walz v. Harvey, 938 N.W.2d 110 (Neb. Ct. App. 2020).