Olson v. St. Croix Val. Memorial Hospital, Inc.

• Decision Date: 05 October 1972
• Docket Number: No. 133,133
• Citation: 201 N.W.2d 63,55 Wis.2d 628
• Parties: Nicholas OLSON at al., Appellants, v. ST. CROIX VALLEY MEMORIAL HOSPITAL, INC., Respondent.
• Court: Wisconsin Supreme Court

Page 63

201 N.W.2d 63

55 Wis.2d 628

Nicholas OLSON at al., Appellants, v. ST. CROIX VALLEY MEMORIAL HOSPITAL, INC., Respondent.

No. 133.

Supreme Court of Wisconsin.

Oct. 5, 1972.

D. E. Jensen, Luck, John C. Mitby, Green Bay, for appellants; Welsh, Trowbridge, Planert & Schaefer, Green Bay, of counsel.

Garvey, O'Brien & Anderson, Eau Claire, for respondent.

HEFFERNAN, Justice.

Plaintiffs' complaint alleges that in 1962 Judy Olson was given a blood transfusion at the St. Croix Valley Memorial Hospital. It is alleged that because of negligent blood testing and typing, it was determined incorrectly that Judy Olson's blood was RH positive when, in fact, her blood type was RH negative. She received a transfusion of RH positive blood. Sometime thereafter, Judy married Nicholas Olson. On December 1, 1966, she gave birth to a child which lived only seven hours; and on December 8, 1969, Judy delivered a stillborn child. It is alleged that only then was it discovered that the wrong blood was given to Judy in 1962 and:

'. . . that said RH Positive blood was given in said transfusion and was a sensitizing stimulus which resulted in the formation of some anti RH antibodies; that the introduction of this blood type had an aggravating effect on the sensitized serologic mechanism causing the death of the children . . ..'

It is alleged that the loss of the 'children' was the direct and proximate result of the negligent act of the hospital in mistyping of the blood and administration of the wrong kind of blood. Damages are claimed.

The trial judge sustained the demurrer to the complaint on the ground that the three-year statute of limitations had run. The applicable statutes are secs. 893.14 and 893.205(1), Stats.:

'893.14. Actions, time for commencing. The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued . . ..'

'893.205. Within 3 years. Within 3 years: (1) An action to recover damages for injuries to the person for such injuries sustained . . ..'

Relying upon Reistad v. Manz (1960), 11 Wis.2d 155, 105 N.W.2d 324; McCluskey v. Thranow (1966), 31 Wis.2d 245, 142 N.W.2d 787; and Volk v. McCormick (1969), 41 Wis.2d 654, 164 N.W.2d 185, the trial judge concluded that those cases hold that an action for malpractice must be started within three years of the negligent act.

In each of the cases relied upon by the trial judge, the injury was sustained at the time of the negligent act. The holding of those cases was explained in Holifield v. Setco Industries, Inc. (1969), 42 Wis.2d points in time were involved: the time pointed out at page 759, 168 N.W.2d at page 182:

'In at least the medical maipractice cases that have come to this court three poinst in time were involved: the time of the negligent act, the time of the injury, the time of discovery. The date of negligence and the date of injury were the same date. That the injury did not become noticeable or was not in foct noticed until a later date is another question. The court was not separating time of negligence from time of injury. Where both were simultaneous, it was holding that the statute of limitations runs from that date, the time at which the cause of action must be concluded to have accrued.'

We, therefore, have indicated that in a malpractice case the date of the nigligent act is not necessarily the benchmark for the commencement of a period of limitations. Only in the event the injury occurs on the same date can it be said the cause of action then 'accrues.'

In the instant case, therefore, the question is when did the plaintiff sustain the injury that caused the accrual of a cause of action and commenced the running of the period of limitations.

The plaintiffs argue that the cause of action did not accrue until the second child was born dead in 1969 and that the action commenced in 1970 was timely. The defendant takes the position that the injury occurred when the transfusion was given in 1962 and that over eight years had elapsed before the action was commenced.

In determining the sufficiency of a complaint on demurrer, except for matters of judicial notice and other minor exceptions, a court is obliged to confine its inquiry to the facts stated in the complaint. It must be assumed that the demurrer admits as true all facts properly pleaded.

The trial judge concluded, and we agree, that the only reasonable interpretation to be given the complaint is that the plaintiff was injured at the time of the transfusion. The complaint states:

'. . . that said RH Positive blood was given in said transfusion and was a sensitizing stimulus which resulted in the formation of some anti RH antibodies; that the introduction of this blood type had an aggravating effect on the sensitized serologic mechanism. . . .'

From a reading of the complaint, it is apparent that it alleges that Judy Olson's capacity for future childbearing was impaired upon the transfusion of the improper blood. She was injured on that date, and the statute of limitations commenced running at that time.

The complaint alleges that an impaired child was born to Judy Olson on December 1, 1966, and died shortly thereafter. A stillborn child was delivered in 1969. Since it is alleged that the introduction of the blood caused the death of the 'children,' it appears from the face of the complaint that, under any theory, the injury complained of could not have occurred later than December 1, 1966, four years prior to the commencement of the instant action. Even were we to consider the death of one of the children in 1966 as the event that triggered the cause of action, the 1970 lawsuit was brought too late. While the plaintiffs in their brief claim that it cannot be determined that the first child died because of the negligent transfusion, the complaint alleges that the transfusion was the cause, and it is the complaint that must be construed in determining whether the cause of action was commenced too late.

In view of the clear allegations of the complaint that an injury occurred at the time of the death of the first child in 1966, we deem that this case is not appropriate for further discussion of the 'discovery rule' considered and rejected in Reistad v. Manz, supra; McCluskey v. Thranow, supra; and Volk v....