Bogue v. Gillis, 311 Neb. 445

On January 17, 2017, Dr. Christopher Gillis performed a lumbar spine fusion on Lori Bogue; the Bogues allege Gillis negligently injured her ureter during that surgery.
Lori developed a fluid collection and a psoas abscess postoperatively; Gillis continued to treat her through at least January 18, 2018; her left kidney was removed in March 2018 after they learned of the ureter injury.
The Bogues filed suit on January 3, 2020 alleging surgical negligence and loss of consortium; they argued the amended complaint was timely because Gillis’ post‑surgery treatment continued into January 2018.
Gillis moved for summary judgment based on the 2‑year statute of limitations in the Nebraska Hospital‑Medical Liability Act (§ 44‑2828); the district court granted summary judgment, concluding the limitations period began at the January 2017 surgery.
The district court rejected application of an expansive “continuous treatment” doctrine because there was no evidence that Gillis’ post‑operative care was negligent; the Supreme Court affirmed, overruling prior Nebraska cases to the extent they applied a broader rule.
The court held the discovery exception was not invoked; it reaffirmed that continuous treatment only delays accrual when there is a misdiagnosis leading to continued negligent treatment or a continuing course of negligent treatment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When did the 2‑year limitations period begin to run?	The limitations period did not start until Gillis’ related post‑surgical treatment concluded (Jan 2018).	It began at the time of the alleged negligent act — the January 2017 surgery.	Limitations began at the January 2017 surgery; the Jan 2020 filing was untimely.
Does the continuous treatment doctrine delay accrual when post‑treatment is related but not itself negligent?	Yes — any related continuing treatment tolls accrual until treatment ends.	No — the doctrine applies only where subsequent treatment itself is negligent (e.g., misdiagnosis or continuing negligent treatment).	The court adopted the narrower rule: continuous treatment applies only for misdiagnosis/continuing negligent treatment; it disapproved cases applying the broader rule.

Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121 (1941) (origin of Nebraska’s continuous‑treatment discussion; focused on breach continuing through treatment)
Tiwald v. Dewey, 221 Neb. 547, 378 N.W.2d 671 (1985) (supports narrow rule: continuous treatment requires continuing negligent treatment)
Frezell v. Iwersen, 231 Neb. 365, 436 N.W.2d 194 (1989) (applies continuous‑treatment only when subsequent treatment is negligent or misdiagnosis exists)
Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994) (adopted an expansive rule treating related non‑negligent post‑treatment as delaying accrual; disapproved by this opinion)
Joyner v. Forney, 78 F.3d 1339 (8th Cir. 1996) (noted conflict in Nebraska precedent and sided with the narrower approach)