Peterson v. Roloff

Decision Date30 January 1973
Docket NumberNo. 262,262
Citation203 N.W.2d 699,57 Wis.2d 1
PartiesWinnie PETERSON et al., Appellants, v. Frederick ROLOFF et al., co-administrators of the Estate of Frank J. Kritter, M.D., Respondents.
CourtWisconsin Supreme Court

S. A. Schapiro, Milwaukee, for appellants.

Irving W. Zirbel, Milwaukee, for respondents.

WILKIE, Justice.

One important issue is raised by this appeal: When does a medical malpractice cause of action commence to run?

Under existing Wisconsin law there is no question but what the amended complaint states a cause of action for medical malpractice alleging negligence in the removal of Mrs. Peterson's gallbladder, the failure to remove the cystic duct and the entire gallbladder and the leaving of the foreign substance in her body at the time. The only question is: Did that cause of action ripen at the moment the negligent surgery was performed in 1954? Or in 1971, at the time Mrs. Peterson experienced abdominal inflammation? Or at the time the negligence was discovered in 1971?

As the Wisconsin law now stands the medical malpractice action accrues at the time the negligent act occurs with accompanying injury. 1

Recently, in Olson v. St. Croix Valley Memorial Hospital, 2 the most recent pronouncement of the law on this subject, this court held that where Judy Olson (ne e Hagstrom) was given a blood transfusion of the wrong type in 1962, prior to her marriage, the cause of action accrued at the time of the improper blood transfusion and not in 1969 when her second child was born dead (a first child had been born live in 1966 but had lived only seven hours). So in the instant case the cause of action accrued at the time of the alleged negligent act, when the cystic duct and the entire gallbladder were allegedly not removed and when the foreign substance (surgical gauze) was allegedly left in the plaintiff's abdomen.

Thus, as the law now stands, the statute of limitations began to run in 1954, so that the period in which an action could be brought had long since elapsed at the time of the 1971 developments.

To reverse the trial court's holding here we are asked to alter Wisconsin law by adopting the so-called discovery rule. In McCluskey v. Thranow 3 we were asked to consider the adoption of the discovery rule and we said that 'this question is not open to new adjudication in Wisconsin.' 4 In the more recent case of Olson v. St. Croix Valley Memorial Hospital 5 we also refused to reconsider that rule under the particular facts of that case. In Reistad v. Manz 6 we last considered the adoption of the discovery rule on its merits, in a case where the defendant doctors had performed surgery on the deceased plaintiff in 1938 and left gauze in his abdomen. The plaintiff brought an action twenty years later. This court refused to adopt the discovery rule, stating if a change in the statute of limitations was in order, the legislature was the proper body to make that change. Although many states have adopted the discovery rule by court decision, 7 we believe that the change of the statute of limitations is peculiarly a question of policy which should be left to the legislature to make if so convinced. Four states have made this change by legislation. 8

In recent years, our court has ruled consistently with McCluskey. In Volk v. McCormick the court, citing McCluskey and Reistad, stated:

'. . . The plaintiff concedes that in Wisconsin the three-year statute of limitations for personal injuries in medical malpractice commences to run from the date the treatment or service was performed rather than from the date of the discovery of the tort.' 9

Similarly, in Milwaukee County v. Schmidt, Garden & Erikson 10 the court rejected a 'discovery rule' in negligence actions involving architects; and in Denzer v. Rouse 11 the court likewise rejected such a rule with respect to malpractice of an attorney. Earlier, the court also had rejected the 'discovery rule' in an action against a bank for negligently honoring a check. 12

The question of what the statute of limitations should be as to any cause of action is a question of public policy. Two conflicting policies confront each other when statutes of limitation are presented: (1) that of discouraging stale and fraudulent claims, and (2) that of allowing meritorious claimants, who have been as diligent as possible, an opportunity to seek redress for injuries sustained. 13

We conclude that this is a matter peculiarly for legislative determination. Because of the numerous cases in which the present three-year requirement for commencing an action by a party who is the victim of medical malpractice is too short, we strongly recommend to the legislature that the basic three-year statute for negligence actions due to medical malpractice be amended.

Judgment affirmed.

HALLOWS, Chief Justice (dissenting).

This case raises an important issue which should be decided by this court. As I view the problem, it presents a construction of secs. 893.14 1 and 893.48, Stats. 2 The first section requires an action to be commenced within a prescribed period of time 'after the cause of action has accrued.' The second section providing for the computation of time requires the period of limitation to be computed 'from the time of the accruing of the right to relief by action.' An action to recover damages for injuries to the person must be brought within three years. Sec. 893.205, Stats.

The question is, when does a cause of action accrue for the purpose of determining the commencement of the statute of limitation. A majority of states which have limitations which begin to run 'after the cause of action accrues' apply the rule that the statute of limitation commences to run with the date of the negligent act, regardless of when the patient discovers the injury. Note, The Statute of Limitations in Actions for Undiscovered Malpractice, 12 Wyoming L.J. 30, 38 (1957). Note, 1 Washington L.I. 257, 273 (1961). In Reistad v. Manz (1960), 11 Wis.2d 155, 105 N.W.2d 324, Wisconsin expressly rejected the discovery view and stated the statute of limitation started to run when the surgeon left the surgical gauze in the abdominal cavity of the patient. In McCluskey v. Thranow (1966), 31 Wis.2d 245, 142 N.W.2d 787, we held the statute of limitation commenced to run when the surgeon left a hemostat in the abdominal cavity of the patient.

The medical malpractice cases at least three points of time are involved--the time of the negligent act, the time of the injury, and the time of the discovery. Holifield v. Setco Industries, Inc. (1969), 42 Wis.2d 750, 758, 759, 168 N.W.2d 177. Holifield, which was a products-liability case, held a cause of action in tort does not accrue until someone has been injured. See also Bushnell, Practical Aspects of Defending Products Liability Cases, 11 Defense L.J. 99 (1962).

In every tort action there must be at least three elements--the negligent act or breach of duty, the causation, and an injury which is recognizable in money damages. Until the injury occurs, no harm is done and there is nothing to be compensated for; therefore, there is no cause of action for damages. The older cases speak of the date of the negligent act as the time when the cause of action accrues. Lotten v. O'Brien (1911), 146 Wis. 258, 131 N.W. 361; Reistad v. Manz, supra. However, in Olson v. St. Croix Valley Memorial Hospital (1972), 55 Wis.2d 628, 201 N.W.2d 63, we pointed out the time of the negligent act was not necessarily the same as the date when the injury occurred, although in many malpractice cases, the cause of action accrued on the date of the negligent act because the injury occurred simultaneously.

Since injury is necessary to establish a cause of action, the question becomes, what is an injury and when does an injury in a malpractice case occur? More specifically in this case, did Mrs. Peterson sustain an injury on the date when her gall bladder was removed and the cystic duct was left attached to the gall bladder remnant in her abdomen or some years later when she developed pancreatitis allegedly as a result thereof? I think when she developed pancreatitis.

In malpractice cases, some courts take the view an injury occurs when a foreign object is left in the body of a patient, even though neither the surgeon nor the patient knew of the forgotten foreign object and othet than the presence of the foreign object in the abdominal cavity, no disability, disease, or pain resulted. At that time, perhaps the only monetary injury is the cost of recovering the foreign object; no actual harm is done, although it can be argued there is a possibility or a potentiality of harm. But if suit were brought at that time, the measure of damages would be speculative and for all practical purposes there would be no cause of action. See, Future Damages in Personal Injury Actions--The Standard of Proof, 11 Personal Injury Commentator 238 (1968).

I do not subscribe to this view of injury. 'Injury' for the purpose of a tort means some harm recoverable in money damages. When such harm occurs, a cause of action accrues for purposes of the statute of limitation. See my concurring opinion in Olson v. St. Croix Valley Memorial Hospital, supra.

The majority of cases considering what constitutes an injury when a foreign substance is left in a patient's body by malpractice, if injury is the essential date, hold the injury to be the leaving of a foreign object in the body; thus the statute of limitation commences to run simultaneously with the commission of the act of negligence. Because of the unsatisfactory result of this concept of injury, many courts so holding have attempted to modify the rule or at least ameliorate its harshness 3 by three alternative solutions: (1) Application of the contract doctrine, in which recovery may be had in contract rather than in tort and thus the statute of limitation for contracts applies, which generally provides for a longer period than the...

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