*1
651
Aрpellants have cited to us several
in
cases
negligence
common-law
permitted.
actions have been
These
cases, however,
distinguishable on important
are
In
facts.
Com.,
Eisenberg
v. Industrial
2d
Ill.
Webelieve that an examination of the undisputed facts cases discloses without that both S.K. and P.A.M. injuries arising sustained out of the course of their employment employer’s their premises and were therefore entitled to make claims under the Nebraska Compensation Workmen’s Act. they Because wеre entitled to make claims Nebraska Compensation Workmen’s Act, they precluded are bringing common-law actions for negligence. The employer to judgments was entitled as a matter of law. The district court was in sustaining cоrrect the motion summary judgment in each of the cases. judgments affirmed.
Affirmed. Bohi, M.D., v. Daniel G. Barry, appellant, Patricia 24, 1986. Filed No. 84-611. *2 Cassem, Tierney, Blagg of F. Gotch and David A.
Charles Adams, Douglas, appellant. Gotch & Sodoro, Daly J. Shomaker of M. Slovek and Thomas
Robert Sodoro, & Hastings, Caporale, Boslaugh,
Krivosha, C.J., Retired. and and Colwell, Grant, Shanahan, D.J., JJ., Caporale, J. verdict, court, jury’s dismissed pursuant to the The trial Bоhi, against Daniel G. Barry’s malpractice action Patricia gynecologist. and She an obstetrician physician practicing as (1) determination as a matter the trial court’s assigns as error provider care was a heаlth law that Dr. Bohi Act, Liability Neb. Rev. Stat. Hospital-Medical Nebraska 1984), when her cause of action seq. (Reissue 44-2801 et §§ evidence, pursuant to the arose, consequent receipt (2) panel that Dr. act, of the medical review opinion required under the standard of care applicable “met the remand for a new trial. circumstances.” We reverse and whereby providers, care provides The act a method health liability with physicians, may malpractice such as limit their respect patients who have elected not to remove themselves 44-2821, 44-2824; Prendergast v. operation. from its §§ Nelson, (1977). At the relevant times, patients required malpractice the act that аll claims of against under the act be providers qualified under the act by prior panel. reviewed to suit a medical review § Nelson, July 1978); Prendergast supra. (As of (Reissue may 44-2840(4) (Reissue a claimant waive such review. § 1984).) upon panel Thе act calls to render a written applicable or failed provider as to whether the met to meet care, standard of whether there exists to be resolved a or provider’s bearing material of fact on the issue of liability require expert opinion. 44-2843. The does not § follow, provides act further that should suit evidence.” of the review “shall be admissible as Nelson, 44-2844(2); Prendergast supra. § *3 act, provider In protection order to receive thе of the of Insurance Department must file with the director of the surcharges pay proof responsibility of certain financial and 44-2824, 44-2827, through levied under the act. §§ 44-2831. 10,1976, qualified September
Dr. Bohi first under the act on individually partnership both mеmber of the with and as a 14, 1978, February Dr. Bohi left practiced. he then On partnership professional with a and became associated Thereafter, corporation. Department the director of the financial prоof Insurance continued to receive of Dr. Bohi’s however, pay the responsibility; neglected to surcharges September period levied under the act for the from 10,1978, 7,1979, everyone February to on and after which date agrees again Dr. Bohi under the act. 5, 1978, Barry May
Mrs. first consulted Dr. Bohi on concerning changes in breast over a she had noticed her things, period years. Bohi, among of several other examined the breast. He and therefore felt nо definite mass concluded that the breast was normal. 10, 1978, Barry
Mrs. returned to Dr. Bohi on November complaining that her breast was still Dr. Bohi noticed a hard. change in the earlier breast the time of his examination breast, roentgenogram specifically and ordered a more of the mammogram. mammogram known reported as a The as revealing malignant no evidence disease. 26, 1978, Barry
On December consulted Dr. Bohi a third surgeon time. On occasion this Dr. Bohi referred her to a who following day. surgeon’s saw her on the While the breast, examination no in he revealed definite mass nonetheless, in physician, consultation with another decided that because of biopsy performed. its firmness a be should biopsy, performed
The revealed the presence of metastatic carcinoma in breast and the surrounding lymph nodes. The was then removed. breast Barry instituted this suit on November 1979. Her petition alleges negligent that Dr. Bоhi May “on or after 1978,” failing examination, in thorough physical to conduct a failing in diagnose cancer, failing in to order biopsy, and failing in to refer her to physician another or to advise her seek additional medical attention. There evidence that the cancer existed at the time of Dr. Bohi’s initial examination. It is Barry’s damaged delay thesis that she has been because the correctly diagnosing substantially her condition reduces her recovery. chances of Nelson,
Prendergast supra, holds that a cause of action patient provider subject to the act tois adjudicated be provisions accordance with the of the act. trial court concludеd that Mrs. cause of action arose when Dr. first diagnose examined her and failed to cancer, the then existing May on which date he was qualified under act. In ruling accordance with that the trial court, Barry’s objection, over Mrs. rеceived the aforesaid into evidence. *4 Barry argues that her cause of action arose either when her, Dr. Bohi last examined December or on biopsy performed when the she should have first discovered proрerly diagnose that failed to her condition. She contends that as Dr. Bohi was not
[655] dates, court erred of the trial the act on either those receiving panel’s opinion. the period malpractice a of casеs have that in medical
We held begins run when the treatment rendered repose or to limitations complained of is relating to the act or omission after and 605, 530 214 Neb. 335 N.W.2d completed. Dewey, v. Smith 656, 1 Elias, 121 (1941). N.W.2d Williams v. 140Neb. (1983); case, repose This, hоwever, or period not a of limitations is Barry’s years 2 last well within of for suit instituted The 1979). (Reissue visit to Bohi. Neb. Rev. Stat. § Barry’s of therefore, not when Mrs. cause presented, is determining it is whether purpose the of action accrued for rathеr, but, did repose when by period a of limitations or barred of purpose of arise for cause action admissible is determining panel’s whether the evidence. impression. to of We question appears be one first
not, hоwever,
formulating an
entirely
guidance in
without
Elias,
stating
diagnosis
supra,
Williams v.
answer.
a
treatment,
recognized that
inseparable from
nonetheless
during
diagnosis
treatment
physician
right
change
has the
to
diagnose patient’s condition
physician’s duty
and that it is a
to
in his
usually
by physicians
it
and treat
“in the manner
done
662,1
locality.” Id.
124.
at
N.W.2d at
begin
as
We have held that a
of action “accrues” so
to
cause
running
legal right
limitations
has
period
when a
of a
of
violated,
consequence
aggrieved party
been
as a
of which the
say,
institute
suit. That is
has
and maintain
or
of the act
upon
cause
action accrues
occurrence
Holthaus,
complaint
ante
omission of which
is made.
Suzuki
Dent,
p.
Interholzinger
v. Estate
(1985);
N.W.2d
have
(1983).
Other courts
Thus, malpractice we action conclude that while a medical *5 repose purposes
accrues for limitations and when the treatment relating rendered after and complained to the act or omission of completed, аrises, is purpose such an action determining admissibility into evidence of the written opinion by rendered panel, upon medical review occurrence of the act or complaint omission of which is made. presently us, thеn,
In the Barry case before had a suit, to institute and assuming maintain damages, she sustained each allegedly time Dr. Bohi requisite failed to use the standard of care in making diagnoses; is, 5, 1978, May his that November 26, Thus, and December 1978. while the opinion written panel of the medical properly review was admitted into evidence for arising the cause as a result of the 5,May 1978, visit, improperly it was admitted for the causes arising from the 26,1978, November 10 and December visits. observes, however, that there was evidence independent panel’s opinion written that he had at all times met the requisite correctly standard of care. argues He that, generally, if properly admitted evidence exists to estаblish that improperly which admitted establishes, evidence also receiving error in the inadmissible evidence is harmless and that harmless error does not form a basis for the reversal of a judgment. Whitmore, 450, State p. v. ante (1985); Fuel Exploration, Novotny, p. Inc. v. ante N.W.2d 838 (1985); Douglas Morrow, State ex rel. 216 Neb. 317, 343 N.W.2d (1984). general rules, however, Those rest premise on the that the nature of the cumulative evidence is such prejudice that no results from improper its admission into evidence. That cannot be said of a by rendered panel pursuant convened to the act and numbering among its expert by members an Barry. selected Mrs. 44-2841. Under § such prejudice circumstances presumed must be to result.
Finally, Dr.
argues
Bаrry
that since Mrs.
chose to
participate in the selection of
panel
and submitted to the
review,
panel’s
estopped
she is
objecting
from
receipt
to the
panel’s
opinion. See,
evidence of the
Amеrican Motors
Perkins,
Sales Corp. v.
198 Neb.
remanded for a new trial.
Reversed and remanded for a new trial. J., dissenting. Boslaugh, continuing
This is course of treatment case out of an alleged properly diagnose failure to plaintiff’s illness. There action, which, is but case, one cause under the facts in this accrued May on 1978. Since the defendant date, the medical panel concerning review the entire course of treatment is admissible.
Boyd Burhoop, appellant, Burhoop, M. E. v. Jean 380 N.W.2d 24, 1986. Filed No. 84-700.