June 8, 2022

The Nebraska Court of Appeals (“Nebraska Appellate Court”) stated in its opinion filed on March 29, 2022 in a Nebraska medical malpractice case where the plaintiff alleged that a certified midwife’s negligence caused the death of her baby in utero, “the question here is whether Appellants’ service efforts were reasonably calculated to apprise Gardner of the pendency of the action and to afford her the opportunity to present her objections to the action. The district court found that because notice was sent to the office of UNMC, which turned out not to be Gardner’s actual direct employer, and was signed for by an individual to whom Gardner did not give explicit authority to accept service on her behalf, the due process criterion was not met in this instance. On this specific record, we disagree. Although Gardner offered affidavits which provided that UNMC was not her direct employer, Appellants provided evidence which explained the source of their confusion. They claim that Gardner directly expressed to them that she was employed by UNMC; that she was listed on UNMC’s website as being employed, at least in some capacity, by UNMC; and that Gardner herself acknowledged receipt of service shortly after it was served on an individual she claims was not authorized to accept service on her behalf.”

Equitable Estoppel

Under the doctrine of equitable estoppel, estoppel applies when a party engages in (1) conduct 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 party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct will be acted upon by, or influence, the other party or other persons; (3) knowledge, actual or constructive, of the real facts; (4) lack of knowledge and the means of knowledge of the truth as to the facts in question; (5) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (6) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel.

In the case it was deciding, the Nebraska Appellate Court stated: “due to the alleged misrepresentations by Gardner and UNMC, Appellants allege that Gardner, UNMC, Nebraska Medicine, and the Board effectively “la[id] in the weeds” and concealed the identity of Gardner’s true employer until after the statute of limitations had run. Appellants assert that those misrepresentations, followed by their subsequent concealment, created a factual question as to whether Nebraska Medicine and Gardner should be estopped from asserting a statute of limitations defense. We agree that a factual question exists, and the district court erred in failing to allow Appellants to amend as to this aspect of their claim.”

“We hold that in its second amended complaint, Appellants sufficiently alleged facts which could result in application of the doctrine of equitable estoppel to the statute of limitations defenses of Nebraska Medicine and Gardner acting in her capacity as an employee of Nebraska Medicine. Although we are mindful that the specific representations alleged were made by Gardner and UNMC, we recognize that as now alleged, Gardner is an employee of Nebraska Medicine which brings into question what information she had and which would be imputed to Nebraska Medicine. As such, we cannot say Appellants’ second amended complaint, on its face, does not survive a § 6-1112(b)(6) analysis. As such, we hold the district court erred in failing to allow Appellants to amend their complaint as it relates to allegations against Nebraska Medicine and Gardner in her capacity as an employee of Nebraska Medicine.”

The Nebraska Appellate Court concluded: “we hold the district court erred in dismissing Appellants’ complaint for failing to properly serve Gardner, but properly dismissed Appellants’ first amended complaint because that claim, filed against Gardner, in her capacity as an employee of UNMC, and UNMC, was filed outside the applicable statute of limitations period set forth in § 81-8,227(1). The first amended complaint contained no allegations governing application of the doctrine of equitable estoppel. However, as to Appellants’ motion to amend their complaint a second time to substitute Nebraska Medicine as a party and sue Gardner in her capacity as an employee of Nebraska Medicine, we hold the district court erred in failing to allow Appellants to so amend. Although we find that Appellants’ second amended complaint could survive a § 6-1112(b)(6) motion to dismiss, we make no substantive determination as to whether Appellants’ equitable estoppel claim will succeed on the merits. At this stage of the proceedings, we need only find that, as pled, Appellants stated a claim upon which relief can be granted. As such, we affirm the district court’s dismissal of Appellants’ amended complaint and to that portion of the order overruling Appellants’ motion to amend against UNMC or additional UNMC employees, but we reverse that portion of the district court’s order denying Appellants’ motion to amend as it relates to allegations against Nebraska Medicine and Gardner, as an employee of Nebraska Medicine, and remand the cause for further proceedings.”

Bolden v. Board of Regents, 30 Neb. App. 767.

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