AGO Opinion 84199

March 8, 1984
Senator Karen Kilgarin
Nebraska State Legislature
State Capitol Building
Lincoln, Nebraska 68509

Dear Senator Kilgarin:

In your February 24, !984, letter you requested our opinion with respect to certain aspects of Neb. Rev. State. §44-2828 and Neb. Rev. Stat. 925-222.

We understand you wish to know whether the six year period of limitations in §44-2828 is an absolute unconditional bar for all malpractice actions in view of the Supreme Court's decision in Sacchi v. Blodi~, 215 Neb. 817 concerning §25-222. You also ask whether there are constitutional problems concerning the above statutes.

We have reviewed the recent court decisions, the above statutes, and LB 692 with all amendments to date.

The two statutes are essentially identical. Section 44-2828 apparently was intended to cover actions where the physician or hospital is qualified under the Nebraska Hospital Medical Liability Act while §25-222 covers other professional negligence situations. In Sacchi the Court held that the ten year limitation period in §25-222 is not an absolute bar for
actions in which the plaintiff wasunder a disability contemplated by Neb. Rev. Stat. §25-1213.

It is our opinion in view of the Sacchi decision that the six year limitation in §44-2828 would also be interpreted as not being an absolute bar of those actions where the plaintiff is in infant or is otherwise under a disability contemplated by Neb. Rev. Stat. §25-2~3. Any ether interpretation probably would subject §44-2828 to equal protection and due process problems.

There could be equal protection or other constitutional questions raised concerning the differences between the six and ten year periods in the two statutes. However, it appears that LB 692, as amended, would conform the two statutes in all essential respects and avoid such possible constitutional infirmities. We understand that LB 692 would amend §44-2828 to clearly exclude actions subject to §25-213 and to increase the six year period to ten, the same as in §25-222.

Please let us know if you have further questions.

Very truly yours,

Attorney General