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Keller v. Tavarone1/31/2003
NATURE OF CASE
Appellant, Brenda L. Keller, filed a medical malpractice petition against appellee, Thomas N. Tavarone, M.D., under the Political Subdivisions Tort Claims Act (Tort Claims Act), expressly relying on the "savings clause" of Neb. Rev. Stat. § 13-919(2) (Reissue 1997). The district court found the savings clause inapplicable and dismissed the action. We removed the appeal to our docket on our own motion pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995). As explained below, we affirm the September 4, 2001, order of the district court.
BACKGROUND
Keller originally sued Tavarone for alleged medical malpractice utilizing the provisions under the Nebraska Hospital-Medical Liability Act (NHMLA). See, Neb. Rev. Stat. ch. 44, art. 28 (Reissue 1993 & Cum. Supp. 1996); Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001). This prior action shall hereinafter be referred to as the "first suit."
In the first suit, Keller filed a petition in district court on December 31, 1998. The petition alleged Tavarone had performed an abdominal hysterectomy on Keller on May 27, 1997, at Cherry County Hospital and that complications had ensued, including a fistula and an obstructed ureter. The petition waived review of the claim by a medical review panel pursuant to the NHMLA. See Neb. Rev. Stat. § 44-2840(4) (Reissue 1998). The petition did not allege compliance with the Tort Claims Act. See Neb. Rev. Stat. § 13-920(1) (Reissue 1997).
The district court dismissed the first suit on January 12, 2000. The court determined that Tavarone was an employee of a county hospital which, as a governmental entity, is exclusively subject to the provisions of the Tort Claims Act. The court further found that Keller had not complied with the claim requirements of the Tort Claims Act. This court affirmed. Keller v. Tavarone, supra.
Shortly thereafter, Keller submitted a written claim to the political subdivision on January 27, 2000, pursuant to Neb. Rev. Stat. § 13-905 (Reissue 1997) of the Tort Claims Act. After waiting the required 6 months, Keller withdrew the tort claim and commenced this suit on August 14, 2000, pursuant to § 13-920(2). On November 27, 2000, Keller filed an amended petition. This second action will hereinafter be referred to as the "second suit."
Keller's cause of action in the second suit expressly relies on the "savings clause" of the Tort Claims Act. See § 13-919(2). In district court, Keller argued that § 13-919(2) of the Torts Claim Act extended the filing period in which a claim must be made under § 13-920(1). Keller alleged that the savings clause extended the filing period for 6 months from the date the first suit was dismissed. She further alleged that the filing requirements were satisfied and that her claim was timely.
Tavarone filed a demurrer. Tavarone argued that Keller had not satisfied the condition precedent of § 13-920(1) requiring a claim to be submitted to the political subdivision within 1 year after such claim accrued. Therefore, Keller's cause of action was time barred.
Neither the district court nor this court considered the applicability of the savings clause in the first suit, finding the argument premature. However, in the second suit, the district court ruled (1) that the savings clause did not apply to political subdivision employee negligence cases filed under § 13-920 and (2) that even if § 13-919(2) applies to claims filed under § 13-920, its application would not save the second suit because the time to file Keller's claim had expired. The district court reasoned that
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