Opinion

Cunningham v. Yankton Clinic, P. A.

  • 262 N.W.2d 508
  • 1978 S.D. LEXIS 265
Court
South Dakota Supreme Court
Filed
Feb 14, 1978
Status
Published
Author
Winans
On the bench
Zastrow, Dunn, Wollman, Porter, Winans, Morgan
Cited by
68 cases

Three-year statute of limitations applied in medical malpractice action against professional medical corporation.

How later courts described this case

  • Three-year statute of limitations applied in medical malpractice action against professional medical corporation.

Written by the judges who cited it.

The opinion

WINANS, Retired Justice

(dissenting).

I am dissenting from the opinion of the court on the basis that, I believe and would so argue, the two-year statute of limitations under (3) of SDCL 15-2-15 does apply. The defendant, formed pursuant to SDCL 47-11-1, is made up of doctors, and any liability that it has is vicariously predicated upon the proof of liability by wrongdoing on the part of the doctor who performs the procedure, and no one argues that the two-year statute does not apply to him. I do not believe that Ogle or Crescent, cited in the majority opinion, lead to any contrary conclusion. As a matter of fact, I believe that the opinion of the court leads “to an absurd or unreasonable conclusion,” simply because the doctor is out but his clinic is in. I would predicate my dissent on this one issue.

I am somewhat bothered by the court in not allowing Dr. Mumford’s testimony. I would not reverse the opinion on this alone, but I do believe that the trial court comes perilously close to committing prejudicial error, even though I subscribe to the theory of law that gives the court large discretion in the amount of expert testimony that it is going to allow. I am inclined to the belief that in this case the court was more restrictive than it should have been, even though I go along with the opinion as written, except for the statute of limitations.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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