Suskey v. Davidoff

• Decision Date: 07 January 1958
• Citation: 2 Wis.2d 503,87 N.W.2d 306
• Parties: Alice SUSKEY, Appellant v. Dr. I. Z. DAVIDOFF et al., Respondents.
• Court: Wisconsin Supreme Court

Page 306

87 N.W.2d 306

2 Wis.2d 503

Alice SUSKEY, Appellant v. Dr. I. Z. DAVIDOFF et al., Respondents.

Supreme Court of Wisconsin.

Jan. 7, 1958.

Roman H. Pakpa, Milwaukee, for appellant.

Ray T. McCann, Milwaukee, for Dr. Hiller.

Richard A. McDermott, Wickham, Borgelt, Skogstad & Powell, Milwaukee, for Dr. Davidoff, and Harry F. Franke, Milwaukee, of counsel, for respondents.

WINGERT, Justice.

The sole question for decision is whether the action is barred by statute of limitations. For present purposes it may be assumed that, as asserted by the plaintiff, the defendants wrongfully removed her gall bladder without her consent and without justification of any necessity or emergency, and that they gave her no advance intimation that they might do so.

1. On that assumption as to the facts (which are vigorously disputed by the defendants), defendants were guilty of an assault. A surgical operation performed without the consent of the patient and without justification by reason of emergency constitutes an assault. Throne v. Wandell, 176 Wis. 97, 101, 186 N.W. 146, Paulsen v. Gundersen, 218 Wis. 578, 583-584, 260 N.W. 448; Annotation, 56 A.L.R.2d 695, 696. Action for an assault is barred, however, by sec. 330.21, Stats., which provides a two-year limitation on actions to recover damages for assault.

2. If the removal of the gall bladder be considered as malpractice, the cause of action for such malpractice is nevertheless barred by statute of limitations. Sec. 330.19(5), Stats., in force at all times herein material, provided that no action to recover damages for an injury to the person shall be maintained unless, within two years after the happening of the event, written notice be served upon the person by whom it is claimed such damage was caused. It is not contended that such a notice was given in the present case. The two-year notice requirement was applicable to an action for malpractice, Voss v. Tittel, 219 Wis. 175, 178, 262 N.W. 579, 101 A.L.R. 722, whether sounding in tort or in contract for breach of implied agreement to treat with proper skill and care. Klingbeil v. Saucerman, 165 Wis. 60, 62, 160 N.W. 1051, 1 A.L.R. 1311; Annotation, 151 A.L.R. 1028.

3. In order to escape the two-year statute of limitations, plaintiff characterizes her action as based on fraud and deceit, and claims the benefit of the six-year statute applicable to fraud actions. Sec. 330.19(7), Stats. Her claim must fail, however, for she alleges no facts which, if proved, would make a case of fraud or deceit.

Plaintiff asserts that defendants were guilty of fraud and deceit 'in not apprising the plaintiff of there proposed gall bladder removal prior to her operation.' Neither complaint nor affidavit opposing summary judgment alleges, however, that before the commencement of the operation defendants intended to remove the gall bladder or anticipated it as likely; and except as stated in the next paragraph, plaintiff does not assert that either of them ever told her that they would not remove the gall bladder. Thus no false representation or concealment is alleged. The allegations merely go to the point that the defendants were guilty of assault or malpractice by removing the gall bladder unnecessarily, without authority and without the justification of emergency. For such a wrong, grievous though it may be, the legislature has seen fit to prescribe the two-year limitation specified in secs. 330.19(5), Stats. and 330.21(2), Stats., instead of six years.

In the complaint it is alleged ¹ that 'the defendants had, prior to the operation, represented to the plaintiff that they would only remove an ovarian cyst from the plaintiff and perform an appendectomy, which defendants allegedly claimed was necessary.' This allegation was denied by the defendants, and was not substantiated in plaintiff's affidavit opposing summary judgment. Assuming that it is entitled to consideration despite the rules stated in Laughnan v. Griffiths, 271 Wis. 247, 251, 73 N.W.2d 587, and Tregloan v. Hayden, 229 Wis. 500, 507, 282 N.W. 698, it falls short of alleging an actionable fraud. The asserted statement that defendants would only remove the cyst and appendix was not itself a representation of existing fact but rather a statement of intention, and there is no allegation that defendants then intended to remove the gall bladder and that such statement of present intention was false or made with intent to conceal a different purpose.

Ordinarily fraud cannot be predicated on unfulfilled promises unless the promisor had a present intent not to perform, and intentionally misrepresented the fact of such intent. Anderson v. Tri-State Home Improvement Co., 268 Wis. 455, 462, 67 N.W.2d 853, 68 N.W.2d 705; Alropa Corp. v. Flatley, 226 Wis. 561, 566, 277 N.W. 108. In the present case no intention to remove the gall bladder is shown or alleged to have arisen prior to the operation, and hence there was no misrepresentation of fact.

Krestich v. Stefanez, 243 Wis. 1, 9 N.W.2d 130, 151 A.L.R. 1022, relied on by plaintiff, was a very different case. There the defendant surgeon left some needles in plaintiff's abdomen after finishing an operation. Three years later, plaintiff having learned of the possibility that some needless had not been accounted for, proposed to call another physician to examine her for their presence. Defendant...