Tuesday, February 21, 2006

Nebraska court of appeals (J. Sievers) approves of defendants 12b6 motion to dismiss medical malpractice case with blown statute of limitations; Plaintiff had no valid "continuing treatment" excuse for her late filingHampton v. Shaw, 14 Neb. App. 499 Filed February 21, 2006. No. A-04-819 Plaintiff filed complaint under Nebraska notice pleading rules, See Nebraska Supreme Court Rules of Pleading against physician who performed abdominal surgery. The plaintiff filed her complaint more than two years after the doctor completed the surgery, and the defendant filed his 12b6 motion to dismiss, alleging the statute of limitations, 44-2828 barred her action. The court of appeals affirms, overruling Plaintiffs contention that the "continuing treatment" rule extended her filing period. The "continuing treatment" rule that tolls the statute of limitation against a medical professional must involve either a misdiagnosis upon which incorrect treatment is given or when there has been a continuing course of negligent treatment. Frezell v. Iwersen, 231 Neb. 365, 369, 436 N.W.2d 194, 198 (1989. The Court of appeals finds Hampton failed to allege a continuing treatment situation because her complaint alleged negligence in her surgery which the doctor completed on a specific date. The continuing treatment came from another doctor's removing surgical staples from her abdomen. This amounts to isolated intermittent acts of alleged negligence that do not qualify for either treatment following a misdiagnosis, nor an ongoing course of malpractice. Casey v. Levine, 261 Neb. 1, 10, 621 N.W.2d 482, 489 (2001) and Frezell , 231 Neb 365.

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