                                No. 95-1883


Steven N. Joyner                         *
and Vickie Joyner,                       *
                                         *
      Appellants,                        *
                                         * Appeal from the United States
        v.         *                     District Court for the
                                         * District of Nebraska.
Glen A. Forney, M.D.;                    *
Lawrence W. O'Holleran, M.D.;            *
and Forney, Westerbuhr                   *
Surgical Associates, Inc.,               *
                                         *
      Appellees.                         *




                       Submitted:   November 16, 1995

                          Filed:    March 26, 1996


Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     In April, 1991, Steven Joyner underwent an operation to alleviate
heavy bleeding from hemorrhoids and pain from a fissure (a linear ulcer)
on his anus.   The following month, he underwent a second operation to drain
a painful abscess that had developed in his rectum (the rectum is the
lowest portion of the large intestine and ends at the anal opening).
Almost immediately after the second operation, Mr. Joyner began suffering
from fecal incontinence on a daily basis.     In early 1994, he underwent a
third operation that corrected his fecal incontinence to a considerable
extent but not totally.    Each of the three operations was performed by a
different doctor.
     In April, 1994, in federal district court in Nebraska, Mr. Joyner
sued the doctors who performed the first two operations.                  Mr. Joyner
asserted    claims   for   medical   malpractice,     contending   that   the   first
operation was negligently performed, that the subsequent abscess developed
as a result of the first operation, that the second operation was also
negligently performed, and that he suffered from a permanent impairment
consequent to those two operations.           The district court granted summary
judgment to the doctors (and their joint professional corporation), stating
that the statute of limitations barred the suit.           Mr. Joyner appeals; we
                                                  1
affirm the judgment of the district court.


                                         I.
     Under Nebraska law, and under ordinary circumstances, Mr. Joyner had
to bring suit within two years "after the alleged act or omission in
rendering or failing to render professional services providing the basis"
for the suit.     See Neb. Rev. Stat. § 44-2828; see also Neb. Rev. Stat.
§ 25-222.     Mr. Joyner acknowledges that he filed his suit more than two
years after May, 1991, when he underwent the second operation.            He argues,
however, that the circumstances of his case allow the application of one
or more of three recognized exceptions to the two-year deadline established
by statute.    We consider each of those exceptions in turn.


     The statute itself states that "if the cause of action could not be
reasonably discovered within [the] two-year period," a suit may be brought
"within one year ... from the date of discovery of facts which would
reasonably lead to such discovery."           See Neb. Rev. Stat. § 44-2828; see
also Neb. Rev. Stat. § 25-222.       "Under the discovery principle, a cause of
action accrues ... where




     1
      The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska.


                                        -2-
there has been discovery of facts ... sufficient to put a person of
ordinary intelligence and prudence on inquiry which, if pursued, would lead
to the discovery.          ... It is not necessary that the plaintiff have
knowledge of the exact nature or source of the problem, but only knowledge
that the problem existed."        Board of Regents of the University of Nebraska
v. Wilscam Mullins Birge, Inc., 433 N.W.2d 478, 484 (Neb. 1988).                A person
is on inquiry notice under Nebraska law when he or she "first [has] a
feeling" that a problem may exist, if he or she has "the means of knowledge
at hand" -- "the ability to check his [or her] impression ... [and thereby]
ascertain[] the existence" of the problem.            Norfolk Iron and Metal Co. v.
Larry L. Behnke, P.C., 432 N.W.2d 18, 25 (Neb. 1988).             We believe that in
this case the relevant question is when Mr. Joyner should have suspected
that his condition was permanent and that improper treatment by his first
two doctors was responsible for that condition and its permanence, see,
e.g., Taylor v. Karrer, 244 N.W.2d 201, 203 (Neb. 1976), so that he could
have   learned,    "with    the    use   of    reasonable   diligence,"    whether   his
suspicions were true, Toman v. Creighton Memorial St. Josephs Hospital,
Inc., 217 N.W.2d 484, 489 (Neb. 1974).


       Mr. Joyner argues that he should not reasonably have suspected that
he had a cause of action until after he consulted his third doctor and that
it was not unreasonable for him to wait until August, 1993, to consult that
doctor.      Mr.    Joyner        contends,     accordingly,    that      the   one-year
post-inquiry-notice period for filing suit did not begin to run until
August, 1993 (when he first consulted the third doctor), which would make
timely his filing of April, 1994.


       In response, the defendants assert that, as a matter of law, it was
unreasonable for Mr. Joyner to wait more than a year after the second
operation for improvement or to consult a third doctor and, therefore, that
Mr. Joyner was on inquiry notice as of




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May, 1992 -- a year after the second operation.                In citing one year as a
reasonable waiting period, the defendants rely on Mr. Joyner's third
doctor, who stated by affidavit that "[f]rom a medical standpoint, a year
from   the    date    of   [Mr.   Joyner's   second       operation]   would    not    be    an
unreasonable period for a patient to wait to see whether bowel control
returned to normal."        Mr. Joyner does not challenge that statement by his
third doctor.


       In light of the Nebraska case law, the essence of our task is to
decide whether it was unreasonable, as a matter of law, for Mr. Joyner to
wait beyond May, 1992 (allowing for a recovery period of a year subsequent
to   the     second   operation),    to    consult    a    third   doctor    (or,     in    the
alternative,      whether    the   issue     of    unreasonableness     is     sufficiently
disputable to create a jury question).              Mr. Joyner contends that because
of his limited education and experience in medical matters, his financial
difficulties (created by his inability to work because of his medical
problems), and the embarrassing nature of his condition, his reluctance to
consult another doctor (and possibly to invite further surgery) was
entirely reasonable.        Specifically, he argues that he is "not a person of
ordinary intelligence or prudence," having left home at age 14 and having
acquired only an eighth-grade education.


       We are very sympathetic to Mr. Joyner's difficulties.                   Even if Mr.
Joyner's subjective qualities are relevant to the usually objective inquiry
into reasonableness, though, we note that, according to his deposition,
Mr. Joyner, who is now 37 years old, has been the successful sole
proprietor of a diesel repair business for 20 years, raised cattle on 1,000
acres of his own land for at least two years of that time, operated a
drilling service contemporaneously with his diesel repair service for at
least part of that time, and knows how to use a home computer.                             Also
according to Mr. Joyner's deposition, his income before the operations was




                                             -4-
approximately $40,000 per year, and his net worth before the operations was
approximately $75,000.     Under these circumstances, we do not believe that
reasonable persons could disagree about whether Mr. Joyner is "a person of
ordinary intelligence or prudence."


     The    Nebraska   Supreme   Court    has    indicated       that,    even    despite
assurances from the surgeon that a post-operative medical condition is
temporary, at some point "after the last of [the doctor's] assurances and
recommendations for post-operative ... therapy," the statute of limitations
begins to run.   Toman, 217 N.W.2d at 490.       In Mr. Joyner's case, all of the
parties seem to agree that a year after his second operation was, as an
objective   matter,    a   reasonable   time    to   wait   to    see    if   his   fecal
incontinence would cease.     Since "[n]othing had transpired" in that period
"to indicate [that] progress was being made," we hold, as a matter of law,
that Mr. Joyner was on inquiry notice after May, 1992.                  Economy Housing
Company, Inc. v. Rosenberg, 475 N.W.2d 899, 901 (Neb. 1991) (per curiam);
see also Norfolk Iron, 432 N.W.2d at 22, 25.         The one-year discovery period
following inquiry notice therefore expired in May, 1993.                (Although it is
not necessary to our holding, we note that Mr. Joyner did consult a lawyer
sometime in 1991, indicating that he may have actually suspected that
medical malpractice was the cause of his difficulties.)             Since Mr. Joyner
did not file suit until April, 1994, the discovery rule does not prevent
the statute of limitations from barring his suit.


                                         II.
     The Nebraska courts have recognized a second exception to the
statutory two-year deadline, an exception that they have described as
involving the continuing treatment rule.             Under this exception, "the
statute of limitations does not begin to run 'until the act complained of,
and any resulting subsequent treatment therefor, is completed.'"                 Healy v.
Langdon, 511 N.W.2d 498, 501 (Neb. 1994),




                                        -5-
quoting Smith v. Dewey, 335 N.W.2d 530, 533 (Neb. 1983) (emphasis supplied
in Healy).    "The continuous treatment doctrine applies when there has been
... a continuing course of negligent treatment."        Frezell v. Iwersen, 436
N.W.2d 194, 198 (Neb. 1989).        One of the reasons for this rule is that
"[p]ost-operative treatment and advice by the physician to the patient are
an interwoven and essential part of the physician-patient relationship."
Toman v. Creighton Memorial St. Josephs Hospital, Inc., 217 N.W.2d 484, 489
(Neb. 1974); see also Williams v. Elias, 1 N.W.2d 121, 124 (Neb. 1941).


     Mr. Joyner asserts with respect to the continuing treatment rule that
he was told by the defendants that his fecal incontinence was temporary and
was likely to cease.      He argues, therefore, that since his third doctor
suggested that a year was a reasonable time to wait to see if the fecal
incontinence did in fact cease, the two-year period for filing suit did not
begin to run until May, 1992 (a year after the second operation), at the
earliest, which would make timely his filing of April, 1994.


     The difficulty with that argument, however, is that we see no
evidence in the materials submitted to us that the post-operative treatment
that Mr. Joyner received was negligent.         Indeed, even if we characterize
as "treatment" the doctors' requiring Mr. Joyner to wait a year to see if
his fecal incontinence would cease, all of the evidence is to the effect
that there was nothing negligent about requiring such a waiting period.
We therefore see no basis for applying the continuing treatment rule to
prevent the statute of limitations from barring Mr. Joyner's suit.


                                        III.
     The     Nebraska   courts   have   also   recognized   an   exception   to   the
statutory two-year deadline based on the principle of equitable estoppel
(also known, usually in non-medical contexts, as




                                        -6-
fraudulent concealment).      See, e.g., Schendt v. Dewey, 520 N.W.2d 541, 548
(Neb. 1994) (per curiam); see also Upah v. Ancona Brothers Co., 521 N.W.2d
895, 902 (Neb. 1994).      A short description of how the equitable estoppel
rule works in medical malpractice cases is that a doctor "may not lull [a
patient] into a false sense of security, thereby cause the [patient] to
subject his ... claim to the bar of the statute of limitations, and then
plead as a defense the very delay caused by the [doctor's] conduct."
Hamilton v. Hamilton, 496 N.W.2d 507, 512 (Neb. 1993).


        Formally, the "elements of equitable estoppel ... are ... (1) conduct
[by the defendant] which amounts to a false representation or concealment
of material facts, or, at least, which is calculated to convey the
impression that the facts are otherwise than, and inconsistent with, those
which    the    [defendant]    subsequently        attempts    to    assert;     (2)    the
[defendant's]     intention,    or    at     least    the   expectation,       that    [the
defendant's] conduct shall be acted upon by, or influence, [the plaintiff];
(3) knowledge, actual or constructive, [by the defendant] of the real
facts; ... (4) lack of knowledge and of the means of knowledge [by the
plaintiff] of the truth as to the facts in question; (5) reliance, in good
faith,    [by   the   plaintiff],    upon    the     conduct   or   statements    of    the
[defendant]; and (6) action or inaction [by the plaintiff] based thereon
of such a character as to change the position or status of the [plaintiff],
to his injury, detriment, or prejudice."             Jennings v. Dunning, 440 N.W.2d
671, 675 (Neb. 1989).      In medical malpractice cases, the Nebraska courts
have found misrepresentations about the "permanency of ... complications,
[the] length of [the] recovery period, ... improper [surgical techniques],"
Frezell v. Iwersen, 436 N.W.2d 194, 198 (Neb. 1989), and cause of a
patient's death, Muller v. Thaut, 430             N.W.2d 884, 889 (Neb. 1988), to be
material.




                                            -7-
       Mr. Joyner argues that the defendants told him, first, that his fecal
incontinence was temporary (when in fact it was permanent) and, second,
that     the   abscess   and   thus   the   need   for   the   second   operation   were
precipitated by some type of external contamination (when in fact they were
consequent to malpractice in performing the first operation).                We see no
evidence, however, that tends to prove that the defendants knew either of
the permanence of Mr. Joyner's condition or of any malpractice by the first
doctor (and Mr. Joyner's assertions on those points contain no citations
to the materials submitted to us).          If the defendants did not know of those
facts, the defendants could neither have lied about them to Mr. Joyner nor
intended that he rely on the defendants' statements with respect to those
facts.    We therefore see no basis for applying the equitable estoppel rule
to prevent the statute of limitations from barring Mr. Joyner's suit.


                                            IV.
       For the reasons stated, we affirm the judgment of the district court.


       A true copy.


               Attest:


                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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