Volk v. McCormick
| Citation | 165 N.W.2d 185,41 Wis.2d 654 |
| Decision Date | 04 March 1969 |
| Docket Number | No. 162,162 |
| Parties | Julia VOLK, Respondent, v. D. W. McCORMICK, Appellant. |
| Court | United States State Supreme Court of Wisconsin |
Fulton, Menn & Nehs, Appleton, for appellant; Peter S. Nelson, Appleton, of counsel.
O'Meara & O'Meara, West Bend, for respondent.
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. 2
The statute of limitations in actions for fraud provides for a period of six years after the discovery of the fraud in which to commence the action (sec. 893.19(7), Stats.).
Because this action was admittedly commenced more than three years after the alleged tortious act, the demurrer should be sustained unless the plaintiff's complaint states facts sufficient to state a cause of action for fraud.
In McCluskey v. Thranow, supra, a case considering alleged fraudulent statements of a physician, we stated at page 252, 142 N.W.2d at page 791:
The complaint alleges the following:
In April of 1964, the plaintiff, Julia Volk, was fifty-three years old and was employed as a bartender and housekeeper. She was generally in good health except for severe osteoarthritis in her right hip. She consulted with the defendant, Dr. D. W. McCormick, a specialist in orthopedic surgery. Upon the advice of Dr. McCormick, he performed a hip prosthesis on her right hip. She alleges that during the course of the operation the defendant negligently injured or severed the sciatic nerve in the gluteal region which has resulted in permanent injuries juries to her right gluteal region and her right leg and foot. She claims total disability of the right leg for any productive type of employment, and that she is permanently required to use a brace and crutches in order to walk.
Plaintiff states that she had no knowledge nor means of obtaining knowledge except through symptoms and the advice of the defendant; that defendant knew she had no knowledge nor suspicion of the cause of her condition from April, 1964 until May, 1966, and that she completely relied upon the defendant for prognosis, treatment and care during this period. She alleges the defendant falsely told her that nothing was wrong with her leg; that he had made no mistake or cut anything during that operation and that she would walk again; that he knew, or in the exercise of reasonable diligence should have known, of the injury to the sciatic nerve and of her permanently disabled condition; that these statements were made with intent to defraud and induce the plaintiff to rely upon them so as not to seek other medical aid or advice, and to prevent her from seeking information as to any cause of action she might have because of the nerve injury. She also alleges that in March of 1966, she was referred to another doctor for an electromyographic study of her right leg and that the defendant falsely reported the results of these tests and informed her she just had a pinched nerve, to keep on using the leg brace and crutches, and that she would be able to walk again.
It is further alleged that she did rely upon the false statements until May of 1966, and this delay has caused permanent damage because the sciatic nerve is beyond repair and has caused her not to seek legal advice until after the running of the three-year statute of limitations for personal injury actions.
It is, of course, fundamental for the purpose of examining a complaint challenged by demurrer that the facts stated therein are assumed to be true and the complaint must be liberally construed in a determination of whether its facts are sufficient to state a cause of action.
It is the position of plaintiff-respondent that she has alleged facts to meet the three requirements of fraud set forth in McCluskey v. Thranow, supra. We agree that she has and that the trial court properly overruled the demurrer.
The appellant-defendant contends that the complaint must unequivocally allege that the defendant knew of the injury to the sciatic nerve and that an allegation which states, '* * * in the exercise of reasonable diligence, should have had, full knowledge. * * *' is insufficient. He cites Tews v. Marg (1944), 246 Wis. 245, 249, 16 N.W.2d 795, 797, as follows:
'To support an action for fraud and deceit, knowledge of the falsity of the statement upon which the defrauded person relied or proof that the statement was made recklessly without regard to...
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...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, '. . . The plaintiff concedes that in Wisconsin the three-year statute of limitations for persona......
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...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 Rod v. Farrell, 96 Wis. 2d at 352-53.......
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