ALEGENT HEALTH BERGAN MERCY MED. v. HaworthALEGENT HEALTH BERGAN MERCY MED. v. Haworth
Thomas J. Shomaker, of Sodoro, Daly & Sodoro, Omaha, for appellees Edward P. Huigens, M.D., and Critical Care Associates.
Brien M. Welch, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Alegent Health Bergan Mercy Medical Center.
STEPHAN, J.
In this case, we are required to determine whether a wrongful death action alleging negligence on the part of health care providers who have elected to qualify under the Nebraska Hospital-Medical Liability Act (NHMLA),
BACKGROUND
Robert Wayne Haworth, Jr., is the duly appointed special administrator of the estate of Robert Wayne Haworth, Sr. (Haworth), who died on February 11, 1996. Exactly 2 years later, on February 11, 1998, the special administrator filed a notice of claim and proposed petition with the Nebraska Department of Insurance pursuant to
In his proposed petition, the special administrator alleged that Haworth was transported to the emergency department of Bergan Mercy Hospital on the evening of January 21, 1996, with complaints of acute chest and upper abdominal pain with sweating and shortness of breath. He further alleged that Haworth was examined in the emergency department by Huigens, a physician affiliated with Critical Care, who performed certain tests and released Haworth several hours later on January 22, with a diagnosis of probable gastritis and instructions to see his own physician.
The special administrator alleged that Haworth died on February 11, 1996, of a heart attack resulting from coronary heart disease, and that his death was caused by the negligent failure of Alegent, Huigens, and Critical Care, as well as a physician and professional corporation who are not parties to this action, to correctly diagnose and treat Haworth‘s condition on January 21 and 22. The special administrator alleged that Huigens, Critical Care, and Alegent were qualified health care providers under the NHMLA and sought damages resulting from the wrongful death of Haworth “pursuant to provisions of Section 30-809 and Section 30-810.”
On June 23, 1998, Alegent, Huigens, and Critical Care filed a petition in the district court for Douglas County, in which they alleged that more than 120 days had
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.
Alegent, Huigens, and Critical Care prayed for a declaratory judgment determining that the special administrator‘s claims were time barred and, in the alternative, requested the district court to appoint a medical review panel pursuant to
In his answer, the special administrator did not dispute the allegation that the professional services at issue were rendered on or prior to January 22, 1996. However, he denied the allegation that his claims were barred by
Alegent, Huigens, and Critical Care filed motions for summary judgment with respect to the statute of limitations issue thus framed by the pleadings. At the hearing on the motions, the special administrator acknowledged that the proposed petition was filed pursuant to the NHMLA but contended that the applicable statute of limitations was not
ASSIGNMENT OF ERROR
The special administrator contends that the district court erred in finding that the applicable statute of limitations was that contained in the NHMLA,
STANDARD OF REVIEW
Summary judgment is proper where the facts are uncontroverted and the moving party is entitled to judgment as a matter of law. Hood v. AAA Motor Club Ins. Assn., 259 Neb. 63, 607 N.W.2d 814 (2000); Neb. Account. & Disc. v. Citizens for Resp. Judges, 256 Neb. 95, 588 N.W.2d 807 (1999). In reviewing a summary judgment, an appellate court views
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 606 N.W.2d 85 (2000); Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110 (2000).
The determination of which statute of limitations applies is a question of law. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999); Kratochvil v. Motor Club Ins. Assn., 255 Neb. 977, 588 N.W.2d 565 (1999); Jorgensen v. State Nat. Bank & Trust, 255 Neb. 241, 583 N.W.2d 331 (1998). In connection with questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Lackawanna Leather Co. v. Nebraska Dept. of Rev., 259 Neb. 100, 608 N.W.2d 177 (2000); Maryott v. Oconto Cattle Co., 259 Neb. 41, 607 N.W.2d 820 (2000); Reinke Mfg. Co. v. Hayes, supra.
ANALYSIS
The NHMLA was enacted by the Nebraska Legislature in 1976. See 1976 Neb. Laws, L.B. 434. The legislative findings and intent are specifically set forth in
(1) The Legislature finds and declares that it is in the public interest that competent medical and hospital services be available to the public in the State of Nebraska at reasonable costs, and that prompt and efficient methods be provided for eliminating the expense as well as the useless expenditure of time of physicians and courts in nonmeritorious malpractice claims and for efficiently resolving meritorious claims. It is essential in this state to [en]sure continuing availability of medical care and to encourage physicians to enter into the practice of medicine in Nebraska and to remain in such practice as long as such physicians retain their qualifications.
(2) The Legislature further finds that at the present time under the system in effect too large a percentage of the cost of malpractice insurance is received by individuals other than the injured party. The intent of sections 44-2801 to 44-2855 is to serve the public interest by providing an alternative method for determining malpractice claims in order to improve the availability of medical care, to improve its quality and to reduce the cost thereof, and to [e]nsure the availability of malpractice insurance coverage at reasonable rates.
The NHMLA permits “health care providers,” defined to include physicians, hospitals, and certain other health professionals, to “qualify” under the act by filing proof of financial responsibility in a designated amount with the Director of Insurance and paying surcharges necessary to maintain the Excess Liability Fund which was created by the NHMLA.
the patient‘s exclusive remedy against the health care provider or his or her partner, limited liability company member, employer, or employees for alleged malpractice, professional negligence, failure to provide care, breach of contract relating to providing medical care, or other claim based upon failure to obtain informed consent for an operation or treatment shall be as provided by the act unless the patient shall have elected not to come under the provisions of the act.
The NHMLA altered the common law in several respects, including a provision that “[n]o action against a health care provider may be commenced in any court of this state before the claimant‘s proposed petition has been presented to a medical review panel ... and an opinion has been rendered by the panel.”
As noted above, the issue of whether
Section 44-2828, which was enacted as a part of the NHMLA in 1976, refers to “any action to recover damages based on alleged malpractice or professional negligence,” but makes no specific reference to wrongful death actions. In contrast,
Language utilized throughout the NHMLA indicates a scope inclusive of both personal injury and wrongful death actions based upon the alleged professional negligence of a qualified health care provider. For example,
Subject to the requirements of sections 44-2840 to 44-2846, a patient or his or her representative having a claim under the Nebraska Hospital-Medical Liability Act for bodily injury or death on account of alleged malpractice, professional negligence, failure to provide care, breach of contract, or other claim based upon failure to obtain informed consent for an operation or treatment may file a petition or complaint in any court of law having requisite jurisdiction.
(Emphasis supplied.) As used in this statute, “representative” is defined as “the spouse, parent, guardian, adult child, executor, administrator, trustee, attorney, or other legal agent of the patient.” (Emphasis supplied.)
Also pertinent to our inquiry is the established rule that the last expression of legislative will is the law. Hoiengs v. County of Adams, 254 Neb. 64, 574 N.W.2d 498 (1998); Stoller v. State, 171 Neb. 93, 105 N.W.2d 852 (1960). Applying this principle, we have stated that in case of conflicting provisions of the same statute, or in different statutes, the last in point of time or order of arrangement prevails. Hoiengs v. County of Adams, supra; Georgetowne Ltd. Part. v. Geotechnical Servs., supra. Section 30-810 was in effect long prior to the enactment of the NHMLA. See Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973).
In determining which statute of limitations applies in a particular case, we have established the principle that a special statute of limitations controls and takes precedence over a general statute of limitations because the special statute is a specific expression of legislative will concerning a particular subject matter. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999); Kratochvil v. Motor Club Ins. Assn., 255 Neb. 977, 588 N.W.2d 565 (1999); Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992). For example, in Swassing v. Baum, 195 Neb. 651, 658, 240 N.W.2d 24, 28 (1976), a personal injury action against a physician and his employee, we held that the special 2-year limitations period for professional negligence actions set forth in
Applying these principles of statutory construction, we conclude that while
In his brief, the special administrator argues that application of
CONCLUSION
Based upon the undisputed facts set forth in the record, the special administrator‘s exclusive remedy against Alegent, Huigins, and Critical Care for the allegedly negligent diagnosis and treatment of Haworth is that provided by the NHMLA. Thus, the applicable statute of limitations is