State Supreme Court Holds That Medical Malpractice Limitations Period Began When Patient Received Cancer Diagnosis

The Nebraska Supreme Court held that the limitations period for a patient’s medical malpractice claim began when this patient received the prostate cancer diagnosis.

Richard Bonness had a family history of prostate cancer. He underwent Prostate‑Specific Antigen (PSA) tests multiple times after his father’s death from the same disease.

In late 2010, he became the patient of physician Dr. Joel Armitage and the two allegedly discussed Bonness’s desire to be screened for prostate cancer.

Dr. Armitage allegedly told Bonness that PSA testing was not warranted in 2010, 2011 or 2013. When Bonness did undergo a PSA test in 2015, he was referred for a prostate biopsy, which led to a cancer diagnosis in January 2015.

Bonness then underwent surgery and was deemed cancer-free; however, his cancer returned in June 2016.

In June 2017, Bonness sued Dr. Armitage for negligence and choosing not to obtain an informed consent. Bonness also filed an amended complaint in January 2018. The doctor’s defense attorneys moved to dismiss on limitations ground; the trial court granted dismissal.

The Nebraska Supreme Court, in affirming, noted that under the limitations statute applicable to professional negligence lawsuits, claims must be commenced within two years of the date the limitations period began to run unless the action could not have been discovered within that two-year period. If that is the case, then the lawsuit must be commenced within one year after the cause of action is discovered.

The State Supreme Court rejected Bonness’s argument that he could not have reasonably discovered his claims until he learned his prostate cancer had returned. Citing case law, the high court said that in deciding when a plaintiff discovers a cause of action for limitations period purposes, a court should focus on when the plaintiff knows of the existence of an injury, not the extent of the resulting damage.

In this case, the court found, when Bonness was diagnosed as having cancer, especially in light of his family history, he could have performed a reasonable inquiry, which would have led him to discover the facts constituting the basis of his cause of action. Accordingly, the court concluded that the limitations period for the plaintiff’s lawsuit began in January 2015, which deemed his claims untimely under both the two-year and one-year provisions of the state law.

Bonness v. Armitage, 942 N.W. 2d 238 (Neb. 2020).

Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, misdiagnosis of cancer cases, birth trauma injury lawsuits and nursing home negligence cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Arlington Heights, Lake Barrington, Lake Zurich, Hawthorne Woods, Vernon Hills, Libertyville, North Chicago, Lake Bluff, Lincolnshire, Lincolnwood, Evanston, Wilmette, Wood Dale, Franklin Park, Chicago Ridge, Midlothian, Olympia Fields, Chicago Heights, Sauk Village, Crete, University Park, Joliet, Romeoville, Lockport, Hickory Hills, Evergreen Park, Chicago (Hyde Park, East Side, South Chicago, South Side, Back of the Yards, Near North Side, River North, Uptown, Albany Park, West Ridge, Andersonville, Lincoln Square, Ravenswood Manor, North Park, Budlong Woods, Winnemac, Sheridan Park, Buena Park, Horner Park, Wrigleyville, Wrightwood Neighbors, Sheffield Neighbors, Palmer Square), River Grove, Westchester, South Holland, Downers Grove and Palos Hills, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.