Inman v. Nebraska Methodist Hosp.

locked toolbox were not clearly erroneous. The district court
therefore did not err in overruling Rathjen’s motion to sup-
press evidence discovered during the search. We affirm the
court’s judgment.
A ffirmed .
K eith L. inmAn , AppeLLAnt , v . nebrAsKA
methodist hospitAL et AL., AppeLLees .
754 N.W.2d 767
Filed July 1, 2008. 	No. A-07-243.
1. Limitations of Actions: Malpractice: Time. Nebraska has a 2-year statute of
limitations for actions for professional negligence except that causes of action not
discovered, and which could not have been reasonably discovered until after the
limitations period has run, can be filed within 1 year of discovery, with an overall
limitation of 10 years after the date of rendering or failing to render such profes-
sional service which provides the basis for the cause of action.
2. Limitations of Actions: Malpractice. For claims alleging professional malprac-
tice, the period of limitations begins to run when the treatment relating to the
allegedly wrongful act or omission is completed.
3. Limitations of Actions: Words and Phrases. Discovery, as applied to statutes of
limitations, refers to the fact that one knows of the existence of an injury or damage
and not that he or she has a legal right to seek redress in court.
4. Limitations of Actions. A cause of action accrues, and the statute of limitations
begins to run, when there has been discovery of facts constituting the basis of the
cause of action.
5. Limitations of Actions: Malpractice. In a professional negligence case, “discov-
ery of the act or omission” occurs when the party knows of facts sufficient to put
a person of ordinary intelligence and prudence on inquiry which, if pursued, would
lead to the knowledge of facts constituting the basis of the cause of action.
6. Malpractice: Damages: Words and Phrases. In a cause of action for professional
negligence, legal injury is the wrongful act or omission which causes the loss; it is
not damage, which is the loss resulting from the misconduct.
Appeal from the District Court for Douglas County: pAtriciA
A. LAmberty, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Mark A. Weber, Kylie A. Wolf, and Betty Egan, of Walentine,
O’Toole, McQuillan & Gordon, for appellant.
INMAN v. NEBRAsKA METhODIsT hOsp. 	809
Cite as 16 Neb. App. 809
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

David 	J. 	Cripe, 	of 	sodoro, 	Daly 	& 	sodoro, 	p.C., 	for
appellees.
inbody, Chief Judge, and irwin and cArLson, Judges.
irwin, Judge.
I. INTRODUCTION
Keith L. Inman appeals orders of the district court for Douglas
County, Nebraska, granting summary judgment and dismissing
Inman’s medical malpractice suit. Our review leads us to con-
clude that the district court correctly granted summary judgment
to Randall Duckert, M.D., but incorrectly granted summary
judgment on the question of whether the statute of limita-
tions bars Inman’s claim against Nebraska Methodist hospital
and 	Nebraska 	Methodist 	health 	system, 	Inc. 	(collectively
Methodist); physicians Clinic, Inc. (physicians); and Frederick
W. Feuerstein, M.D., individually, based on the claim against
Feuerstein. There is, at a minimum, a genuine issue of material
fact concerning when Inman should reasonably have discovered
Feuerstein’s alleged malpractice. As such, we affirm in part, and
in part reverse and remand for further proceedings.
II. BACKGROUND
This case concerns alleged medical malpractice by Feuerstein
in his treatment of Inman in December 2001 and shortly there-
after. The gravamen of Inman’s malpractice claim against
Feuerstein is the allegation that Feuerstein failed to advise
Inman of a masslike lesion that was allegedly visible in a chest
x ray and that Feuerstein failed to properly follow up with Inman
by ordering a subsequent chest x ray. The lesion was ultimately
discovered and surgically removed, and Inman received addi-
tional treatment by Tracy Dorheim, M.D., and Randall Duckert,
M.D. Inman brought a medical malpractice suit against Dorheim
and Duckert, and later added Feuerstein to the case as a defend-
ant. Inman asserts that he was not aware of the lesion until
October 2003, when it was revealed in a CT scan performed by
Dorheim and Duckert, and that he was not aware of the lesion’s
alleged visibility in the December 2001 chest x ray until early
september 2006, when discovery in the course of Inman’s suit
against Dorheim and Duckert resulted in Inman’s expert witness’
810 	16 NEBRAsKA AppELLATE REpORTs

raising the issue in early september 2006. Later in september
2006, Inman filed an amended complaint naming Feuerstein in
the lawsuit.
In 	December 	2001, 	Inman 	was 	treated 	by 	Feuerstein.
Feuerstein ordered a chest x ray. The radiology results from that
x ray stated that there was a “mass-like lesion present” and that
while the lesion “could be pneumonia, a follow-up chest x-ray
is recommended.” According to Inman, Feuerstein did not advise
Inman that there was a masslike lesion after the x ray or dur-
ing a followup visit in January 2002. Also according to Inman,
Feuerstein did not advise Inman to receive a followup x ray.
In October 2003, Inman was treated by Dorheim and Duckert,
and a CT scan revealed the masslike lesion, diagnosed as a
thymoma. In December 2003, Dorheim performed surgery and
removed the thymoma; during surgery, one of Inman’s phrenic
nerves was compromised. Following surgery, Dorheim and
Duckert treated Inman with radiation therapy. since that surgery
and treatment, Inman has allegedly suffered a number of injuries,
including medical expenses, loss of lung function and capacity,
loss of enjoyment of life, and loss of earning capacity.
On December 16, 2005, Inman filed a complaint naming
Dorheim, Duckert, and Methodist as defendants. Inman alleged
medical malpractice as well as lack of informed consent and
battery as his causes of action again Dorheim and Duckert and
alleged liability on behalf of Methodist because it provided
facilities, personnel, and privileges to Dorheim and Duckert.
In June 2006, Dorheim and Duckert each filed motions for
summary judgment. In July, a hearing was held, during which
Inman offered an affidavit of counsel attesting to difficulties
securing discovery of Inman’s complete medical records from
the named defendants. At the conclusion of the hearing, the
court ordered production of the requested medical records and
continued the hearing.
On september 8, 2006, Dr. Cam Nguyen, who was retained
by Inman to review his medical records, authored a report to
Inman’s counsel. In that report, Nguyen noted “the mediastinal
mass first reported on Dec. 27, 2001 CXR” and indicated that
“[o]f note” were “the abnormal Chest X-Rays first reported on
December 27, 2001 and apparently relayed to Dr. Feuerstein
INMAN v. NEBRAsKA METhODIsT hOsp. 	811
Cite as 16 Neb. App. 809

on the same day.” Nguyen then stated, “however, I have not
seen any evidence through the medical records provided to me
that this was followed clinically to ensure that the abnormal
mediastinal mass was followed” and indicated that “[i]f further
interview with the patient himself and after review of medi-
cal records from the period of December 2001-October 2003
reveals no follow-up of this abnormal CXR, [that] constitutes
physician’s neglect.”
On september 25, 2006, Inman filed a motion seeking to
amend his complaint to include a claim of medical malprac-
tice against Feuerstein. The amended complaint was filed on
september 27, and it alleged that Feuerstein had been negligent
in his diagnosis and treatment of Inman and in not advising
Inman of a known mass in Inman’s chest. The amended com-
plaint also named physicians for the same reasons that Methodist
had previously been named.
In October 2006, the district court granted the summary judg-
ment motions filed by Dorheim and Duckert. The court held that
each doctor had presented an affidavit opining that his care of
Inman had not fallen below the standard of care required and
that Inman had not presented any expert opinion to the contrary.
Although Inman’s appeal to this court included challenges to
the trial court’s granting of summary judgment to Dorheim and
Duckert, Dorheim moved this court for summary affirmance
and we sustained the motion. As such, this appeal no longer
concerns Dorheim.
On January 5, 2007, Feuerstein, Methodist, and physicians
filed a motion for summary judgment. The district court con-
ducted a hearing on the motion on February 1. On February
6, the court entered an order granting the motion for summary
judgment. The court held that although the applicable statute of
limitations was 2 years from the time of the alleged negligence,
the statute could be tolled by the discovery rule, which allows the
claimant to file a claim within 1 year of discovery of the injury.
The court held that the statute of limitations had run on Inman’s
claim against Feuerstein, because Inman was aware of the physi-
cal symptoms of fatigue, shortness of breath, and decreased lung
capacity by July 2004 and did not name Feuerstein as a defend-
ant until september 2006. This appeal followed.
812 	16 NEBRAsKA AppELLATE REpORTs

III. AssIGNMENTs OF ERROR
Inman’s three assignments of error are as follows: (1) The
district court erred in granting summary judgment to Duckert,
(2) the district court erred in granting summary judgment to
Feuerstein, and (3) the district court erred in dismissing his
complaint because his claims against Methodist and physicians
should have survived.
IV. ANALYsIs
Inman appeals the district court’s grant of summary judgment
in this medical malpractice action. summary judgment is to be
granted when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Boyd v.
Chakraborty, 250 Neb. 575, 550 N.W.2d 44 (1996). summary
judgment is proper only when the pleadings, depositions, admis-
sions, stipulations, and affidavits in the record disclose that there
is no genuine issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that the mov-
ing party is entitled to judgment as a matter of law. Id.
On a motion for summary judgment, the question is not how
a factual issue is to be decided, but whether any real issue of
material fact exists. Id. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to
the party against whom the judgment is granted and gives such
party the benefit of all reasonable inferences deducible from the
evidence. Id.
The party moving for summary judgment has the burden to
show that no genuine issue of material fact exists and must pro-
duce sufficient evidence to demonstrate that the moving party
is entitled to judgment as a matter of law. Id. After the moving
party has shown facts entitling it to a judgment as a matter of
law, the opposing party has the burden to present evidence show-
ing an issue of material fact which prevents judgment as a matter
of law for the moving party. Id.
1. inmAn ’ s cLAim A gAinst ducKert
Inman asserts that the district court erred in granting sum-
mary judgment to Duckert. Inman asserts that he adduced
sufficient evidence to create a genuine issue of material fact
INMAN v. NEBRAsKA METhODIsT hOsp. 	813
Cite as 16 Neb. App. 809

regarding Duckert’s alleged negligence. Because the only expert
evidence offered by Inman was Nguyen’s affidavit and report,
and because that affidavit and report did not opine that Duckert
breached the standard of care, we find no merit to this assign-
ment of error.
The Nebraska supreme Court has held that an affidavit of a
defendant physician in a malpractice case, which affidavit states
that the defendant did not breach the appropriate standard of
care, presents a prima facie case of lack of negligence for the
purposes of summary judgment. Boyd v. Chakraborty, supra.
Regarding the plaintiff’s burden of proving that a defendant
physician fell below the requisite standard of care, the Nebraska
supreme Court has held that whether a specific manner of treat-
ment or exercise of skill by a physician demonstrates a lack
of skill or knowledge or failure to exercise reasonable care
is a matter that, usually, must be proved by expert testimony.
see id.
In this case, Duckert supported his motion for summary judg-
ment by offering his own affidavit, in which affidavit Duckert
stated that he did not breach the appropriate standard of care. As
such, Duckert presented a prima facie case of lack of negligence
for the purposes of summary judgment. The burden was then on
Inman to present sufficient evidence to create a genuine issue of
material fact or to demonstrate that Duckert was not entitled to
a judgment as a matter of law.
To satisfy his burden of proof, Inman presented the affidavit
and report of Nguyen. A review of that report indicates that the
majority of specific evaluations and treatments discussed were
noted to have been “appropriate.” Nguyen did not provide any
opinion indicating that any of Duckert’s actions fell below the
standard of care. Because this was the only expert evidence
offered by Inman and because that evidence did not present any
expert opinion that Duckert was negligent, Inman failed to carry
his burden and Duckert was entitled to summary judgment. This
assignment of error is without merit.
2. inmAn ’ s cLAim A gAinst feuerstein
Inman asserts that the district court erred in granting sum-
mary judgment to Feuerstein. Inman asserts that the statute
814 	16 NEBRAsKA AppELLATE REpORTs

of 	limitations 	should 	not 	have 	barred 	his 	claim 	against
Feuerstein because he did not discover Feuerstein’s negligence
until september 2006 and he amended his complaint to name
Feuerstein as a defendant later the same month. We conclude
that there is at a minimum a genuine issue of material fact con-
cerning when Inman discovered Feuerstein’s negligence and,
accordingly, summary judgment was improper.
[1,2] Nebraska has a 2-year statute of limitations for actions
for professional negligence except that causes of action not dis-
covered, and which could not have been reasonably discovered
until after the limitations period has run, can be filed within 1
year of discovery, with an overall limitation of 10 years after the
date of rendering or failing to render such professional service
which provides the basis for the cause of action. Anonymous v.
Vasconcellos, 15 Neb. App. 363, 727 N.W.2d 708 (2007). see,
also, Neb. Rev. stat. §§ 25-222 (Reissue 1995) and 44-2804
and 44-2806 (Reissue 2004). For claims alleging professional
malpractice, the period of limitations begins to run when the
treatment relating to the allegedly wrongful act or omission is
completed. Anonymous v. Vasconcellos, supra.
In the present case, the alleged treatment or alleged wrongful
act or omission was completed in December 2001 or January
2002, when Feuerstein allegedly failed to advise Inman of the
presence of the mass in his chest x ray and allegedly failed to
follow up with an additional chest x ray. As such, the standard
statute of limitations would arguably have run by early 2004,
unless the running of the statute is tolled by operation of the
discovery rule.
[3,4] Discovery, as applied to statutes of limitations, refers to
the fact that one knows of the existence of an injury or damage
and not that he or she has a legal right to seek redress in court.
Id. A cause of action accrues, and the statute of limitations
begins to run, when there has been discovery of facts constitut-
ing the basis of the cause of action. Id. A cause of action con-
sists of the set of facts on which a recovery may be had. Id. The
discovery of the basis of the cause of action is the preeminent
concept in determining whether the discovery exception applies
to toll the statute of limitations. Id.
INMAN v. NEBRAsKA METhODIsT hOsp. 	815
Cite as 16 Neb. App. 809

[5,6] In a professional negligence case, “discovery of the act
or omission” occurs when the party knows of facts sufficient to
put a person of ordinary intelligence and prudence on inquiry
which, if pursued, would lead to the knowledge of facts consti-
tuting the basis of the cause of action. Gering-Ft. Laramie Irr.
Dist. v. Baker, 259 Neb. 840, 612 N.W.2d 897 (2000). In a cause
of action for professional negligence, legal injury is the wrong-
ful act or omission which causes the loss; it is not damage,
which is the loss resulting from the misconduct. Id.
In the present case, Inman created, at a minimum, a gen-
uine issue of material fact concerning when he discovered the
cause of action against Feuerstein. The district court focused
on Inman’s knowledge of the permanent effects of the mass,
its removal, and the related treatment—fatigue, shortness of
breath, and a decrease in pulmonary function. The district court
held that “[a]t that time, [Inman] became aware of facts suf-
ficient to put a person of ordinary intelligence and prudence
on inquiry which if pursued would lead to the discovery of the
existence of the cause of action.” however, the court failed to
indicate how Inman’s knowledge of the permanent symptoms of
the mass, its removal, and the related treatment put Inman on
notice that Feuerstein had, nearly 3 years prior, failed to advise
him of a known mass and failed to properly follow up regarding
the mass.
The record indicates that after Inman filed suit against
Dorheim and Duckert, he attempted to obtain complete copies
of his medical records through the course of discovery. As late
as June 2006, he had been unsuccessful in doing so. The record
suggests it was not until september that Inman had any knowl-
edge that the mass had ever shown up on a prior x ray or had
any reason to suspect that Feuerstein had failed to advise him
and follow up properly. On the record before us, it is knowledge
of this injury—Feuerstein’s alleged failure to properly advise
and follow up—that constitutes discovery. Because Inman filed
his amended complaint naming Feuerstein as a defendant less
than 1 month after discovery, the district court erred in find-
ing that the statute of limitations had run on the basis of the
record presented.
816 	16 NEBRAsKA AppELLATE REpORTs

3. inmAn ’ s cLAim A gAinst methodist And physiciAns
Inman’s claims against Methodist and physicians were also
dismissed because summary judgment was granted to Dorheim,
Duckert, and Feuerstein. Inasmuch as we have reversed the sum-
mary judgment granted to Feuerstein, we also reverse the sum-
mary judgment granted to Methodist and physicians.
V. CONCLUsION
We affirm the district court’s grant of summary judgment to
Duckert. We reverse the district court’s grant of summary judg-
ment to Feuerstein, Methodist, and physicians.
A ffirmed in pArt , And in pArt reversed And
remAnded for further proceedings .
shAunA wiLKen , mother And next friend of cheyenne wiLKen
And wyAtt wiLKen , minor chiLdren , And J effery wiLKen ,
AppeLLAnts And cross -AppeLLees , v . city of L exington ,
A poLiticAL subdivision of the stAte of nebrAsKA,
AppeLLee And cross -AppeLLAnt .
754 N.W.2d 616
Filed July 1, 2008. 	No. A-07-553.
1. Summary Judgment. summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue as to any material fact or as
to the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Political Subdivisions Tort Claims Act: Negligence. A negligence action brought
under the political subdivisions Tort Claims Act has the same elements as a neg-
ligence action against a private individual, i.e., duty, breach of duty, causation,
and damages.
4. Negligence: Proximate Cause: Proof. To establish proximate cause, there are
three basic requirements. First, the negligence must be such that without it, the
injury would not have occurred, commonly known as the “but for” rule. second,
the injury must be the natural and probable result of the negligence. Third, there
can be no efficient intervening cause.
WILKEN v. CITY OF LEXINGTON 	817
Cite as 16 Neb. App. 817