§ 44-2828 — Action to recover damages; limitation of action

Nebraska § 44-2828

• Jurisdiction: Nebraska
• Ch. 44: Insurance

Text

Except as provided in section 25-213 , any action to recover damages based on alleged malpractice or professional negligence or upon 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.

Legislative History

Source: Laws 1976, LB 434, § 28; Laws 1984, LB 692, § 9. Annotations: The continuous treatment doctrine for limitations in a malpractice action applies only for incorrect treatment based on misdiagnosis or other continuing course of negligent treatment. Bogue v. Gillis, 311 Neb. 445, 973 N.W.2d 338 (2022). While section 30-810 includes a general statute of limitations applicable to wrongful death actions, this section is a subsequently enacted special statute of limitations applicable to all personal injury and wrongful death actions against health care providers who have taken the necessary steps to qualify under the Nebraska Hospital-Medical Liability Act. Alegent Health Bergan Mercy Med. Ctr. v. Haworth, 260 Neb. 63, 615 N.W.2d 460 (2000). The discovery exception contained in this section is a tolling provision which permits the filing of an action after the 2-year period only in those circumstances where the cause of action was not discovered and could not reasonably have been discovered within that period. Weaver v. Cheung, 254 Neb. 349, 576 N.W.2d 773 (1998). The language in this section is identical in all material respects to that contained in section 25-222, which applies to professional negligence actions governed by the common law. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997). In medical malpractice cases, 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, 511 N.W.2d 498 (1994). The Nebraska Hospital-Medical Liability Act provides for the filing of medical malpractice claims against health care providers within 2 years from the date of the negligent treatment. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013). The Nebraska Hospital-Medical Liability Act provides a 2-year statute of limitations for medical malpractice claims unless the cause of action could not have been reasonably discovered within the 2 years, and then the action may be brought within 1 year from the date of discovery. Hampton v. Shaw, 14 Neb. App. 499, 710 N.W.2d 341 (2006).