Krestich v. Stefanez

• Decision Date: 16 June 1943
• Citation: 243 Wis. 1,9 N.W.2d 130
• Parties: KRESTICH v. STEFANEZ.
• Court: Wisconsin Supreme Court

243 Wis. 1

9 N.W.2d 130

KRESTICH

v.STEFANEZ.

Supreme Court of Wisconsin.

April 13, 1943.

Rehearing Denied June 16, 1943.

Appeal from an order of the Circuit Court for Milwaukee County; John C. Kleczka, Judge.

Affirmed and remanded.

This was an action commenced by Mary Krestich on November 19, 1941, against John S. Stefanez, defendant. We shall not attempt at this point to characterize the complaint further than to say that defendant claims that it sounds in tort for malpractice, and plaintiff claims that it states a cause of action for relief upon the ground of fraud. Defendant answered to the merits and also set up that the two-year notice of injury required by section 330.19(5) in causes of actions for personal injury as well as the six year statute of limitations barred the action. Plaintiff demurred to these paragraphs of defendant's answer and on September 14, 1942, the order appealed from was entered sustaining the demurrer.

Lines, Spooner & Quarles, of Milwaukee (Charles B. Quarles and James T. Guy, both of Milwaukee, of counsel), for appellant.

Corrigan & Backus and L. A. Schweichler, both of Milwaukee (Walter D. Corrigan, Sr., of Milwaukee, and Thomas M. Corrigan, of Cedarburg, of counsel), for respondent.

WICKHEM, Justice.

The complaint alleges that plaintiff is a housewife and defendant a duly licensed physician and surgeon; that in September, 1928, plaintiff and her husband, having confidence in defendant, employed him to treat plaintiff for a malady; that defendant accepted the employment; that on September 22, 1928, defendant, in association with another surgeon selected by him, performed an operation to remove plaintiff's gallbladder; that the stitching and sewing of the incision was done by defendant; that in the course of this operation defendant left a surgical needle and part of another needle in plaintiff's abdomen; that in the presence of plaintiff's husband the surgical nurse informed defendant that these needles could not be accounted for; that plaintiff's husband was compelled to leave the operating room before any search was made for the missing articles; that thereafter, defendant represented to plaintiff's husband that he had found the missing articles; that these statements were in all respects false to the knowledge of defendant and that they were made for the purpose of deceiving plaintiff and her husband into the belief that the articles had been found and removed; that plaintiff and her husband relied upon these representations and believed that her subsequent illness was not caused by the presence of these needles in her body; that plaintiff's health continued to be bad and in the year 1931 plaintiff became very ill because, as she is now informed, of the presence of these needles in her abdomen; that on this occasion she called defendant to attend her as a physician and informed him that she intended to call another physician to make an examination and diagnosis because she feared that something might have been left in her abdomen in the former operation. Whereupon, defendant again stated to her that he had found the articles which were temporarily missing at the former operation and had removed them; that there was nothing left in her abdomen and no necessity for her to have another physician make an examination; that the representations were false, known by defendant to be so, and made with the intention that she would believe them and refrain from applying for advice to another physician; that as a result she refrained from resorting to another physician until 1941, in the meantime suffering from recurring pains and illness; that plaintiff continued under defendant's professional care until about November, 1937, and that until October 15, 1941, when another surgeon removed the needles from plaintiff's abdomen, defendant continued to conceal the facts from the plaintiff; that plaintiff did not discover the falsity of defendant's representations until October 15, 1941.

Upon these allegations, defendant contends that the action is one of tort for malpractice and barred (1) because of plaintiff's failure to give notice of injury within two years, and (2) by the six-year statute of limitations applicable to actions to recover damages for injury to person or property. Section 330.19(5), Stats.; Siebert v. Jacob Dudenhoefer Co., 178 Wis. 191, 188 N.W. 610;Lotten v. O'Brien, 146 Wis. 258, 131 N.W. 361;Klingbeil v. Saucerman, 165 Wis. 60, 160 N.W. 1051, 1 A.L.R. 1311;Hoffmann v. Milwaukee Electric R. & L. Co., 127 Wis. 76, 106 N.W. 808.

It is further contended by defendant that if the complaint is grounded upon the original tort, fraudulently concealed, the latter circumstance does not prevent the statute of limitations from running. Blake v. Miller, 178 Wis. 228, 189 N.W. 472;Wisconsin Trust Co. v. Cousins, 172 Wis. 486, 179 N.W. 801;Pietsch v. Milbrath, 123 Wis. 647, 101 N.W. 388,102 N.W. 342,68 L.R.A. 945, 107 Am.St.Rep. 1017;Seideman v. Sheboygan Loan & Trust Co., 198 Wis. 97, 223 N.W. 430;Guile v. La Crosse Gas & Elec. Co., 145 Wis. 157, 130 N.W. 234;Ott v. Hood, 152 Wis. 97, 139 N.W. 762, 44 L.R.A.,N.S., 524, Am.Cas.1914C, 636; Marshall & Ilsley Bank v. Baker, 236 Wis. 467, 295 N.W. 725. Defendant's contentions are applicable whether the action be considered to be based upon the original malpractice plus fraudulent concealment, or upon representations in 1931 as constituting a new malpractice.

Plaintiff asserts that the cause of action is not one for malpractice but one for fraud, in that defendant occupying a position of trust, and confidence, and knowing that the needles were left in the abdomen, being informed that plaintiff proposed to seek other medical advice and for the purpose of inducing plaintiff to refrain from this course of action, falsely represented to plaintiff in 1931 that the needles had been removed and could not be the cause of her continued ill health; that under the amendment of 1929 to ...