*1 husband, Appellants, and an Peterson Roloff other, coadministrators estate of Dr. Frank Kritter, Respondents. Argued January No. November 1972. Decided reported (Also 699.) in 203 *3 appellants the argu- For there was a brief and oral by Schapiro A. ment S. of Milwaukee. respondents the
For argu- there was a brief and oral by Irving ment W. Zirbel of Milwaukee. important by One ap- issue is raised this
Wilkie, peal: When does a medical of action cause commence to run ? existing
Under question Wisconsin law there is no but complaint what the amended states a cause of action malpractice alleging negligence for medical in the re- moval of Mrs. Peterson’s gallbladder, the failure to re- cystic gallbladder move the duct and entire the and the leaving foreign of the substance in her at the time. only question is: Did that ripen cause of action at negligent the surgery performed moment was in 1954 ? Or in at experienced Mrs. time Peterson negligence abdominal inflammation? Or at time the was discovered in ? mal- the medical law now Wisconsin stands
As negligent act practice time the accrues at injury.1 accompanying with occurs Valley Hos- Memorial Recently, Croix in Olson St. on this pronouncement of law most recent pital,2 (née Judy Olson subject, held where that wrong Hagstrom) given of the a blood transfusion was marriage, of action type prior cause in her improper transfusion blood accrued the time of the at dead born not 1969 when her second child was had lived live in 1966 but (a had been born first child cause of only hours). case the seven So the instant alleged negligent act, at time of the action accrued gallbladder cystic duct and entire were when foreign allegedly and when substance not removed plaintiff’s (surgical gauze) allegedly left in the was abdomen.
Thus, stands, of limitations law now statute period began in which an to run in so that brought long elapsed at action could be had since developments. time the 1971 holding are the trial here we asked To reverse court’s adopting to alter law the so-called discov- Wisconsin ery McCluskey v. Thranow asked In we were rule. adoption rule consider and we said open adjudication is not new “this In the more recent case of Olson St. Wisconsin.” Valley Memorial refused to re- Croix we also *4 particular that rule under facts of that consider 155, (1960), See Reistadv. Manz 11 2d 105 2d 1 Wis. N. W. McCluskey 324; 245, (1966), v. Thranow 31 2d 142 Wis. N. W. 787; (1969), 654, 2d v. McCormick 41 2d 165 Volk Wis. N. W. 2d Valley Hospial 185; (1972), Memorial Olson v. St. Croix 55 Wis. 628, 2d 201 2d 63. N. W. 2 Supra, footnote 1. 3 Supra, 1. footnote 4 page Id. at 5 Supra, footnote 1.
5 6 case. In Reistad Manz adop- v. we last considered the discovery merits, tion rule on in a its case where surgery performed the defendant had doctors plaintiff gauze deceased in 1938 left abdomen. his plaintiff brought years twenty an action later. This adopt rule, stating court refused if change order, in the statute of was limitations legislature body change. proper was make that Although many adopted discovery rule states have change decision,7 we believe policy peculiarly statute of limitations is legislature if which to make so be left should 6 Supra., footnote 1. 7 framed in of action “ac Decisions terms of when the cause see, 525, g., (1970), crued”: e. Owens v. Brochner 172 Colo. 474 603; (1969), 836, Pac. 2d Renner v. Edwards 93 Idaho 475 Pac. 530; 1967), 94; (Iowa 2d Chrischilles 150 2d v. Griswold N. W.
Flanagan Hospital (1969), Mount 2d Eden 24 N. Y. General Harrington 871; (1968), 248 2d 104 I. N. E. Wilkinson R. 745; App. 393, (1969), 243 Atl. 2d Janisch v. Mullins 1 Wash. Morgan Hospital, 895; (W. 1965), 461 Pac. 2d Inc. v. Grace Va. 144 E. 2d S. limiting application Courts of the rule to those cases which physician negligently foreign object left in the of a patient: Layton (Del. 1968), (hemo- see v. Allen 246 Atl. 2d 794 Spath stat); (1962), v. Morrow Neb. 115 2d 581 174 Strully (needle); Fernandi v. 35 N. 2d 173 Atl. (wing nut); (Tex. 1967), v. Smith 2d Gaddis 417 S. W. Morgan (sponge); Hospital, Inc., supra, v. Grace footnote
(sponge). applying Other courts the rule to all medical cases: Mayer App. 248, Hospital see v. Good Samaritan Ariz. 497; 42 Cal. 2d Pac. v. Shultz Stafford City (Pla. 1954), 306; 1; Pac. 2d Miami v. Brooks 70 So. 220; Hilo Yoshizaki v. 50 Haw. 433 Pac. (Ky. 1970), 166; Johnson Tomlinson v. Siehl S. W. Mich. Caldwell W. Wilkinson v. supra, Harrington, footnote 7. *5 6 change legis-
convinced. Four states have made this lation.8 years, consistently
In recent
our court has ruled
with
McCluskey.
citing
In
court,
Volk McCormick the
Mc-
Cluskey
Reistad,
stated:
plaintiff
“.
. .
concedes
Wisconsin the
three-year
personal
injuries
statute of limitations
for
in medical
the
commences to run from
date
performed
treatment or
was
rather than
service
from
9
the date of the
of the tort.”
County
Similarly,
Schmidt,
in Milwaukee
Garden &
10
rejected
neg
Erikson
“discovery
the court
rule”
ligence
involving architects;
actions
and in Denzer v.
11
rejected
Rouse
the court
likewise
such
rule with
respect malpractice
attorney.
Earlier,
of an
the court
rejected
“discovery
against
also had
rule” in an action
negligently honoring
bank
a check.12
question
of what the statute of limitations should
any
public policy.
be as
cause of
conflicting policies
Two
confront each other when stat-
presented:
(1)
discourag-
of limitation are
That of
utes
ing
claims,
(2)
allowing
stale
fraudulent
that of
diligent
claimants,
pos-
meritorious
who have been as
sible,
opportunity
injuries
to seek redress for
sus-
13
tained.
8
(1)
(Supp. 1955);
See: Ala. Code Title
25
sec.
9 Conn.
.Stat.,
(rev. 1958);
Stat.,
Gen.
ch.
sec. 52-584
2 Ill. Rev.
ch.
Stat.,
(1965);
(4)
22.1
(1967).
sec.
Rev.
Or.
sec. 12.110
9
By Judgment the affirmed. Court. — (dissenting). C. This case an im- Hallows, raises portant issue which by decided be should court. As problem, presents I view the it a construction of secs. 893.48, requires 893.14 Stats.2 The first section prescribed an action period to be commenced within a of time “after the cause of action has accrued.” The providing computation second section for the of time requires period of computed the to limitation be “from ment, Malpractice Adoption, Medical Statute of Limitations — of Discovery Buie, Ky. L. J. Actions, commencing. “893.14 time following for actions periods respectively must be commenced within the hereinafter prescribed except of after the cause action has accrued that period expired shall not be considered to have when pending before which the action is satisfied shall be that person originally knowingly gave served false information to the performance officer with to intent mislead him in the of his duty any process. in the service of summons or civil In the period event the court so finds the of limitation shall ex year.” tended for one Computation time, periods “893.48 of basis for. The of limita tion, specially prescribed by unless law, otherwise must be com puted accruing right from by time of the to relief special action, proceedings, otherwise, defense or as case re quires, actually to the time when claim to that relief is inter by posed party plaintiff particular as a or defendant in the special proceeding, except action defense, or to as set-off or counterclaim the time plaintiff’s of the commencement of the action shall be deemed the time when the claim for relief defense, interposed.” such or set-off counterclaim is accruing right relief action.”
the time injuries person damages to the for An action to recover 893.205, brought years. Stats. three Sec. must be within accrue is, of action cause when does determining commencement purpose of for the majority which A of states of limitation? statute begin “after cause run have limitations which of limita- apply statute accrues” rule that the negligent the date of to run with tion commences injury. patient regardless act, of when discovers Undis- Note, Limitations Actions The Statute (1957), 30, 38. Malpractice, Wyoming L. J. covered *7 155, 105 (1960), 11 2d N. W. Reistad v. Manz Wis. In expressly rejected the view Wisconsin to run when started and stated the statute of limitation surgical gauze surgeon the in abdominal the the left McCluskey cavity patient. v. Thranow In of statute 142 N. W. we held Wis. surgeon left to run of limitation commenced when patient. cavity of the in the abdominal hemostat points malpractice of three In medical cases at least negligent act, time are involved —the time of the discovery. Holi injury, of the time of the time Industries, Inc. Setco Wis. field 758, Holifield, prod- 2d 177. which was a N. W. uets-liability case, in held a cause of action does tort injured. also: until been See not accrue someone has Aspects Defending Bushnell, Products Lia Practical bility Cases, Defense L. every action there three ele-
In tort must be least at negligent duty, causation, act ments —the or breach of injury recognizable money damages. in and an which is injury occurs, no harm is done there is Until the nothing compensated for; therefore, there no is damages. speak cause of action for older cases negligent of the act the time date when the cause as Lotten of action accrues. v. O’Brien 146 Wis. Manz, supra. Reistad v. However, Valley in Olson v. St. Croix Memorial pointed Wis. 2d W. we out negligent necessarily time of the was not act the same injury although many occurred, date when malpractice eases, the cause of action date accrued negligent injury act because the simul- occurred taneously. injury necessary
Since action, to establish a cause of is becomes, injury an what and when does injury ain specifically case occur? More case, did injury Mrs. Peterson sustain an on the gallbladder date cystic when her was removed gallbladder duct was left attached to the remnant years developed her abdomen or some later when she pancreatitis allegedly as a thereof? I think result when developed pancreatitis. she malpractice cases,
In take the an in- some courts view jury foreign object when a occurs in the is left though patient, surgeon pa- even neither nor the forgotten foreign object tient knew the and other than presence foreign object in the abdominal cavi- ty, disability, disease, pain time, no or resulted. At that perhaps only monetary is the cost of recover- foreign ing *8 object; done, although no harm actual is argued can possibility potentiality it be there or a is brought time, of harm. But if were suit at damages speculative measure of would be for all practical purposes there would be no cause of action. Damages Injury Future See: in Personal Actions —The Proof, Injury Standard 11 Personal Commentator of (1968), 238.
I injury. do not to “Injury” subscribe this view of purpose for the of tort means harm some recoverable money damages. occurs, .in When harm a cause of such
10 of limitation. purposes of statute
action accrues for Valley concurring my opinion Olson v. Croix See in St. swpra. Hospital, Memorial considering majority of constitutes what cases patient’s foreign
injury in a is left when a substance injury date, hold body by malpractice, the essential if foreign leaving object of body; run of limitation statute commences to thus negli simultaneously of act of with the commission gence. unsatisfactory con result of Because of holding attempted cept injury, many have of courts so 3 modify ameliorate harshness rule or at least its Application (1) three alternative solutions: may recovery doctrine, be had contract which limi contract rather than in and thus statute of tort generally provides applies, which tation for contracts longer period applied of limitation than the statute torts;4 (2) application treatment continuous doctrine, in which the does not run while statute theory doctor continues to the victim same treat negligence until continues termination doctor-patient relationship the statute of which starts running,5 (3) application of the fraudu limitation 3 Forgotten, Sponge and the Limita- Note, See Statute of Thayer tions, also: Calvin v. (1961), 257. See 1 Washburn L. Huysman App. Kirsch (1957), 610, 59; v. 150 Cal. 310 Pac. 2d City 302, Miami v. Brooks (1936), 908; (Fla. 6 Cal. 2d Pac. 2d 57 Mercy 306; Billings 1954), Idaho v. Sisters 70 So. 2d Doty (1964), 485, 224; (La. 1959), Mills v. 86 Idaho 389 Pac. 2d Rodriguez 710; (La. 1934), Perrin v. 555; 116 153 So. So. Ayers Morgan (1959), v. Pa. 154 Atl. 2d 397 4 Supp. See Baum Turel (D. 1962), 490; v. C. N. Y. 206 Fed. (1940), 833; Peters Giambozi v. Bowers 127 Conn. 16 Atl. 2d (1919), 238; v. Santee Gillette 99 Ohio St. E. N. Rep. 639, Tucker Ohio St. 93 Am. St. N. E. Klingbeil 865; Saucerman 1051; Wis. Suskey Wis. 2d 87 N. W. Davidoff Esser See Schmitt v. 196; 178 Minn. 226 N. W. v. De Tar Thatcher 351 Mo. 173 S. W. Budoff
11
theory
upon estoppel,
lent concealment
based
in which
discovery
run until
the statute does not
where the doctor
of his
knows
but
not disclosed it to the
has
patient.6
applied
This
same rule
that
in other
is
(7),
actions based
fraud. See
330.19
sec.
Stats. 1953.
adopted
Another alternative which
been
has
and is
7
receiving growing acceptance
“discovery,
the so-called
is
rule,”
applies
foreign-object
misdiagnoses
cases,
which
negligent procedures.8
upon
This view
based
inability
plaintiff
injury.
Note,
know
his
(1954),
App.
Supp.
717;
v. Kessler
1049, 135
284
Div.
Y.
2d
N.
Tucker, supra,
Presumably,
Gillette v.
note 4.
and at
least
York,
original negligent
New
treatment must
be related
Lillich,
Malpractice
See
act.
Statute
Limitations in New
Jurisdictions,
Q. (1962), 339,
York and Other
47 Cornell L.
344.
6
(1943),
1,
130,
See Krestich v.
9
2d
243 Wis.
N. W.
Stefanez
(malpractice, nondisclosure,
by repre
1022
151 A.
R.
L.
fraud
sentation).
Layton (Del. 1967),
261;
also: Allen
See
235 Atl. 2d
(1961),
676,
731;
Eschenbacher v. Hier
363 Mich.
110
2d
Super.
Rothman
22,
v. Silber
Atl.
216
18.
subsequent
negligence
But
York
see New
view
concealment
physician
aggravation
constitutes at
most
support
separate
and does not
fraud. Tulloch v.
App.
Supp.
Haselo
218
218
Div.
N. Y.
Failure
negligent
malpractice.
to disclose a
act constitutes an act of
Klein-
(1958), App.
Supp.
man
Lack
6
Div.
N.
179
Y.
Malpractice,
See Annot.
Statute
of Limitations —
368, 388-390;
2d,
A. L. R. 2d
Service,
78-84 A. L. R.
Later Case
supp.
112-114 and
at 42.
applied
involving
rule has
been
also
in cases
diseases,
contracted
so that a cause of action does not accrue
until the victim
or
knows
should have known of the disease. See
Thompson (1949),
Urie v.
Sup.
337 U. S.
Ct.
93 L.
1282;
Tubes,
(2d
Ed.
Ricciuti v.
1960),
Voltare
Inc.
Cir.
277 Fed.
Sylvania
(1st
Electric
1955),
Products
Barker
Cir.
Sup.
Fed.
certiorari denied
350 U. S.
Ct.
Ed. 854.
L.
See also: Annot.
Limitations —Con
tracting Disease,
many
11 A. L. R. 2d
for the
other standards
involving
used in cases
contracted diseases.
*10
Pittsburgh
359. Under
of
Eev.
U.
L.
until
accrue
doctrine,
the cause of
does
not
injury or
know he is
victim
should
knows
injured by
malpractice. The doctrine
somewhat
malpractice
injury
not occur in
akin to
view an
does
recognizable harm to the
until
itself in
it manifests
some
layman’s standpoint,
cases the
victim. From a
most
injury
which he
know
date of
and the date on
should
injured
approximately
he
was
will be
same.
notes,
are
majority
of limitation
As the
statutes
public-policy
involved
result of a
which
determination
conflicting
discouraging
and
(1)
of
That
stale
factors:
allowing
(2)
meritorious
claims,
fraudulent
of
diligent
op-
possible
an
claimants who have been as
injuries
portunity
It
for
to seek redress
sustained.9
recovery
to me
innocent
not
seems
an
victim’s
should
injury
by
he
of limitation for an'
does
be barred
a statute
concept
know he
not
has and either
of
changed
of
or
limitation should
should
the statute
not commence to run
the innocent
until
victim knows
good
injured;
or has
cause to
he
been
between
know
has
negligent
victim,
innocent
latter
actor
policy
preferred.
course,
Of
should be
are other
there
questions
the medical
uncertain
involved in
results
—the
tracing
difficulty
practice,
with the
of
these results
lapse
passing of
of false
after
time, and the fear
claims
public
protection
of
from
time. But
needs
sub-
Eesponsibility
negligent
standard medical care.
acts
public
greater
the medical
would
confidence in
create
recognizing
profession.
discovery rule
have
States
malpractice litigation.
experienced
con-
of
no flood
require-
legally protected by the
doctor is still
scientious
degree
proof
prevailing
of
ment
of
skill
care
profession.
the medical
of members of
majority decision,
In addition to the articles cited in the
see
Wayne
Note,
(1968), 662,
L. Rev
adopted
At least
states have
rule.10
Of these
have done
four
so
statute.11
others
adopted
through interpretation
existing
have
it
stat
many
utes,
framed
which were
terms of when
applica
cause
Some
action “accrued.”
states limit
neg
physician
tion of the rule to
cases in which
those
foreign
ligently
object
patient.13
left
apply
to all
the rule
medical
cases
Others
any
because
other rule of construction would allow an
*11
unjust
legislature
result
other
cases and the
would
not have
a statute
a
intended
to work such
result.14
supra,
(1968),
7,
Persons,
10 See Annot.
note
and
Medical
Malpractice
Limitations
Tolled until Patient Can
—Statute
Reasonably
Foreign Object Negligently
Body
Discover
in his
Left
During Surgery,
Georgia
(1971), 244,
8
Bar J.
State
11
7,
(1)
(Supp. 1955);
See Ala.
Title
Code
sec. 25
Conn.
9
Stat., Rev.,
926,
(1958);
Stat.,
Gen.
ch.
2
sec. 52-584
Ill. Rev.
ch.
83,
Stat.,
(1965);
(4)
(1967).
22.1
sec.
Or. Rev.
sec. 12.110
The
Oregon court, however,
(1969),
1,
in Frohs v. Greene
253 Or.
452
(decided
provide
564
Pac. 2d
under an old statute which did not
“discovery rule”)
“discovery
applied
held the
rule”
to both
involving negligent
involving negligent
cases
treatment
and cases
However,
diagnosis.
present
appear
so
statute is
framed as to
only
apply
involving foreign objects
body.
to cases
left
12 See,
g.,
(1970),
e.
Owens v. Brochner
Colo.
172
474 Pac.
603;
(1969),
2d
Renner v. Edwards
93 Idaho
475 Pac. 2d
1967),
530;
(Iowa
94;
Chrischilles v. Griswold
2dW.
Flanagan
Hospital
(1969),
v.
Eden
Mount
General
N. Y.
871;
Harrington
248 N. E. 2d
Wilkinson v.
104 R. I.
745;
App. 393,
Atl.
Janisch v. Mullens
1 Wash.
Morgan
Hospital,
895;
1965),
(W.
461 Pac.
v.
Inc.
Va.
Grace
2dE.
S.
Layton
(Del. 1968),
;
(hemostat)
See
Allen
v.
246 Atl. 2d 794
Spath
;
(needle)
v. Morrow
Neb.
N. W. 2d 581
Strully (1961),
(wing
Fernandi v.
35 N. J.
173 Atl. 2d 277
nut);
(Tex. 1967),
(sponge) ;
v.
Gaddis
Smith
Those relating change legislature proper rules pro on limitations actions and that strict to limitations stability the uncertainties and burdens and avoid mote against majority attending claims.15 the defense old Manz, Reistad opinion view relies takes this proposi McCluskey Thranow, supra, supra, for the changed, interpretation should be if the tion legislature’s inaction, rea legislature do should it. adoption prevents majority from sons discovery rule. majority to me that if views dis- But it seems foreign concept of covery to the rule as traditional almost the can be obtained of action same result cause is. Such a a more realistic view of what an language adopted present can be under secs. view legislative history 893.48, of these 893.14 and Stats. The any action on the does affirmative not show sections legislature reject part on its rule *12 expressio unius est exclusio alterius doctrine merits. The Peppas Ilsley Bank in v. Marshall & relied on McCluskey and in N. W. 2d Wis. Peppas Thranow, supra, misplaced. In the court was is referring Stats., to of 330.19 the fraud section sec. Yoshizaki v. Hilo 306; 60 Haw. 433 Pac. Johnson v. Tomlinson Siehl (Ky. 1970), 166; 220; S. W. Caldwell Wilkinson Mich. Harrington, supra, footnote 12. 1 5 jror rejection a rationale of the discussion of the behind Malpractice see Limitation Actions—In a “discovery rule,” Note, of Begin Action the Limitations Does Not to Bun Until Statute of Injury, the Patient Knows or Has Reason to Know His 15 Van of (1962). derbilt L. Rev. 657 exception by for the inference excluded contract against governed by the bank the same section. three-year problem of the The of limitation in statute (1) sec. 893.205 the was not before or considered McCluskey erroneously Peppas In it. we stated held began the of limitation statute to run the time the at negligently check, despite bank honored the fact plaintiff negligence did not discover until later Peppas date. in fact held “cause of action accrued when he received the statement and cancelled vouchers May, holding from 1946.” defendant This is much honoring to closer rule of because act forged already had check until occurred depositor received his bank statement he had no cause injured by to believe he was Likewise, the bank’s act. exception compensation so-called cases workmen’s controlling. Compensation is not The Workmen’s Act is complete separate statutory scheme in which the employee injury thirty must receive of notice within days injury of the after occurrence or after the em- ployee ought (not knew or have known but) disability relationship nature and its his employment. to his accept proposition
I do not relied on some our part legislature inaction on or decisions during its failure reach a bill or a session the failure reported of a equivalent out of bill committee is the legislature. legislature of a mandate from the does not read advance sheets our and silence or inaction on part its should not serve as an excuse for inaction part my court. See dissents in Vincent v. Pabst Brewing Co. Wis. 2dW. Hargrove (1970), and Garcia v. 724, 737, 46 Wis. 2d 176 N. W. 2d 566. discovery doctrine placed by in Wisconsin now opinion majority jurisprudence along in the limbo of *13 negligence, and pure comparative
with doctrine of saved, by doctrine, shop all, if the dram to be at change legislature. perhaps, But, will its this court still Mut. Automobile Ins. In v. Farmers mind. Schwenkhoff solemnly 2d 97, 154, 2d 104 N. we Co. W. Wis. legislature designed bill failure of to enact said change unemancipated could minor to the rule that an against negligent parent in tort not maintain an action its by personal injuries expression constituted legislature change this be made court. no should position in Goller years three later we our Yet reversed 402, 193, (1963)., 20 122 N. 2d v. White Wis. 2d W. Holytz 26, 2d Milwaukee 17 Wis. basis 618, in N. and advanced 115 W. 2d said reasons changing parental immunity for not Schwenkhoff longer Holytz applied. no we held our rule In it was change responsibility to a court-made rule when we change j'ustice necessary deemed interest legislature though make even had refused to changes. Likewise, Congregation Smith v. Rose St. 61 W. 2d we Wis. N. stated immunity with doctrine dissatisfaction charitable legislature. Kojis to the should addressed But Hospital Doctors Wis. W. changed position 107 N. W. its this immunity. and abolished the doctrine of appellate power duty Dramatically, court’s formulate articulate coherent of modern jurisprudence has in Pierce Yakima Val- been stated ley Asso. Memorial Wash. 765, 774, 178, 260 closed Pac. “We our courtroom legislative open help, and without we can doors likewise them.” Our courts be alive the demands of should legislature j'ustice. Here, the has not defined accrual of a cause of action case calls for the exercise judicial duty language interpret statutory of our *14 “after cause so offer has accrued” as to protection the innocent reasonable victim medical malpractice. Warden, Petitioner, White, Gray, ex
State rel. Respondent. Argued November
No. State 140. 1972.Decided January 30, 1973. (Also reported 638.) W. 2d