Rod v. Farrell

• Decision Date: 09 June 1980
• Docket Number: No. 77-681,77-681
• Citation: 291 N.W.2d 568,96 Wis.2d 349
• Parties: Michael J. ROD and Charlene Rod, Plaintiffs-Respondents-Petitioners, v. Thomas FARRELL, M. D., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 568

291 N.W.2d 568

96 Wis.2d 349

Michael J. ROD and Charlene Rod, Plaintiffs-Respondents-Petitioners, v. Thomas FARRELL, M. D., Defendant-Appellant.

No. 77-681.

Supreme Court of Wisconsin.

Argued March 4, 1980.

Decided May 6, 1980.

Reconsideration Denied June 9, 1980.

Robert H. Bichler, Racine, argued, for plaintiffs-respondents-petitioners, Weisfeldt & Weisfeldt, Milwaukee; Alan M. Clack, Racine.

Daniel T. Flaherty, La Crosse (argued), Peterson, Antoine & Peterson, Prairie du Chien, Maureen L. Kinney and Johns, Flaherty & Gillette, S.C., La Crosse, on brief, for defendant-appellant.

PER CURIAM.

This is a medical malpractice claim. Plaintiff Michael J. Rod was born January 24, 1951. On May 17, 1955, defendant, Dr. Thomas Farrell, performed a surgical repair of a congenital hernia on plaintiff. At the time of the operation, apparently no one had any knowledge of any difficulty or problems with the operation. Plaintiff married in 1974. In September, 1975, he underwent exploratory surgery in an attempt to discover the cause of his wife's failure to become pregnant. The exploratory operation revealed that portions of plaintiff's vasa had been surgically removed and he was permanently sterile. For the purposes of appeal, we may assume that the plaintiff's medical history excludes any intervening cause for the severed vasa and that the defendant did sever plaintiff's vasa at the time of the 1955 hernia surgery. Plaintiff commenced the action on October 12, 1976, which was approximately twenty-one years after the severance of his vasa, seven years after he had attained the age of eighteen, and one year after he discovered that the vasa had been severed. The circuit court denied defendant's motion for summary judgment, and he appealed. The court of appeals reversed the circuit court's order relying on decisions of this court holding that the statute of limitations in medical malpractice cases begins to run from the time the negligent act occurs and the accompanying injury results, not from the date of the discovery of the injury. ¹

Sec. 893.14, Stats., the introductory section to sec. 893.205 and to other statutes of limitation, provides that actions must be commenced within the periods prescribed "after the cause of action has accrued." ² Sec. 893.205, Stats., requires that an action to recover damages for injuries to a person be commenced within three years. ³

The word accrued is not defined by statute. This court has held that a cause of action for personal injuries due to medical malpractice accrues, and therefore the statute of limitation begins to run, ⁴ "at the time the negligent act occurs with accompanying injury." Peterson v. Roloff, 57 Wis.2d 1, 4, 203 N.W.2d 699, 700-701 (1973). See also Reistad v. Manz, 11 Wis.2d 155, 105 N.W.2d 324 (1960), McCluskey v. Thranow, 31 Wis.2d 245, 142 N.W.2d 787 (1966), Volk v. McCormick, 41 Wis.2d 654, 165 N.W.2d 185 (1969), and Olson v. St. Croix Valley Memorial Hospital, 55 Wis.2d 628, 201 N.W.2d 63 (1972). Applying this rule to the present case, the court of appeals held that the cause of action accrued when plaintiff's vasa were cut by defendant on May 17, 1955, despite the fact that the plaintiff was not aware of his injury until 1975.

We have described the conflicting public policies involved in determining the appropriate time to start the running of the statute of limitations as follows:

"(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." Peterson v. Roloff, supra, 57 Wis.2d at 6, 203 N.W.2d at 702.

Although this court has recognized the injustice of commencing the running of the period of limitations at a time when the injured party was not aware of his right of action, and although this court has recognized that many states have adopted by court decision the "discovery rule," i.e., that the cause of action accrues when the alleged injury is discovered or should have been discovered, ⁵ we have repeatedly stated that "if a change in the statute of limitations was in order, the legislature was the proper body to make that change. . . . (W)e 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." Peterson v. Roloff, supra, 57 Wis.2d at 5-6, 203 N.W.2d at 701-702. See also Rosenthal v. Kurtz, 62 Wis.2d 1, 10, 213 N.W.2d 741, 216 N.W.2d 252, Reistad v. Manz, supra, 11 Wis.2d at 159-160, 105 N.W.2d 324.

In 1973 this court recommended to the legislature that the basic three-year statute of limitations for negligence actions due to medical malpractice be amended because the three-year requirement is too short. Peterson v. Roloff, supra, 57 Wis.2d at 7, 203 N.W.2d 699. Thereafter several bills were introduced in the legislature to change the basic three-year statute of limitations applicable to medical malpractice suits. ⁶ None of these bills passed. In its last session, the legislature again considered bills which would adopt the discovery rule. ⁷

It is clear from this legislative history that the legislature is aware of the problem of the statute of limitations in medical malpractice actions and is struggling with the policy issues involved. Nothing has been said in the case at bar to persuade us that we should overturn our long-established construction of the statute when the legislature has considered the matter and has acquiesced in or has failed to change our construction of the statute. In Green Bay Packaging, Inc. v. ILHR Dept., 72 Wis.2d 26, 32, 240 N.W.2d 422, 426 (1976), we said that "for years this court has followed the rule that where the court has placed a certain construction upon a statute, such construction becomes a part of the statute and subsequent legislative inaction is deemed to be approval of such construction."

The plaintiff argues that the present interpretation of the statute violates Art. I, sec. 9, of the Wisconsin Constitution, ⁸ relying on a concurring opinion in a case decided by the Supreme Court of Pennsylvania, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 794-95 (1959). This concurring opinion concluded that the "discovery rule" was required by a provision of the Pennsylvania Constitution similar to Art. I, sec. 9 of our constitution because any other rule precluded a reasonable opportunity for one who has been harmed to make his claim.

This court has said that although Art. I, sec. 9, Wisconsin Constitution, guarantees a suitor a day in a court of competent jurisdiction to which he may present his claim, the statute of limitations may bar a plaintiff's action and the defending party may rely on the statutory bar. See Reistad v. Manz, 11 Wis.2d 155, 159, 105 N.W.2d 324 (1960); Ortman v. Jensen & Johnson, Inc., 66 Wis.2d 508, 521, 225 N.W.2d 635 (1975). Nevertheless, we have cautioned that a statute of limitations might offend Art. I, sec. 9, Wisconsin Constitution, if it extinguished a claim of a potential plaintiff before that plaintiff suffered an injury. Rosenthal v. Kurtz, 62 Wis.2d 1, 8, 213 N.W.2d 741 (1974); Kallas Millwork Corp. v. Square D. Co., 66 Wis.2d 382, 393, 225 N.W.2d 454 (1975).

In the instant case, however, the plaintiff's injury occurred at the time of the operation. Many years have elapsed before the statute of limitations barred plaintiff's claim. Consequently, we conclude that the statute of limitations does not violate Art. I, sec. 9, Wisconsin Constitution.

Plaintiff further asserts that if the court does not adopt the discovery rule he will be deprived of due process guaranteed by the federal constitution. This argument is similar to the one made under Art. I, sec. 9 of the state constitution, and we find it similarly unpersuasive.

In Clark v. Gulesian, 429 F.2d 405, 406 (1st Cir. 1970), the plaintiff-patient argued that he was denied equal protection and due process when his malpractice action was barred by the Maine statute of limitations under which on the ground that the cause of action accrued at the time of the negligent act. The federal court of appeals dismissed the federal constitutional claims on grounds similar to the ones considered by this court in dismissing plaintiff's federal and state constitutional claims, saying:

"Plaintiff's first argument on this appeal is that the Maine statute, as interpreted and applied in Tantish (v. Szendey, 158 Me. 228, 182 A.2d 660 (1962)) is unconstitutional as a denial of equal protection and due process. For this novel contention he cites no direct authority of any sort. While state courts disagree in their approach as to when, under circumstances such as these, the cause of action accrues, defendant points out that no majority opinion has based its decision on constitutional grounds. For a recent review of authorities see Flanagan v. Mount Eden General Hospital, 1969, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 (adopting a contrary rule). As we pointed out in Tessier, supra, at 269 F.2d 310, this is a policy decision. The rights are not one-sided. Unfortunate as the present result may be for the plaintiff, the state may reasonably recognize that a defendant has an interest in repose, and in the avoidance of stale claims, however free from fault the claimant's delay may be. Such a conclusion does not deprive the plaintiff of any constitutional right to fair or equal treatment."

For the reasons set forth, the decision of the court of appeals is affirmed.

COFFEY, Justice (concurring).

How long after retirement should a doctor have to carry malpractice insurance? The statute of limitations defense, successfully raised against a meritless case, will save the retired doctor large amounts of attorneys' fees which he would otherwise have to pay to defend and win after a trial. The discovery rule insures that a trial, with its attendant expense, will be held in every case.

The affidavit of...