# Cunningham v. Yankton Clinic, P. A.

> South Dakota Supreme Court · February 14, 1978 · 262 N.W.2d 508

URL: https://www.frixlaw.com/law-library/cases/9852080

## Case

- **Full name:** Mary CUNNINGHAM, Plaintiff and Respondent, v. YANKTON CLINIC, P. A., Defendant and Appellant
- **Court:** South Dakota Supreme Court
- **Decided:** February 14, 1978
- **Citations:** 262 N.W.2d 508; 1978 S.D. LEXIS 265
- **Precedential status:** Published
- **Opinion:** Dissent by Winans
- **Judges:** Zastrow, Dunn, Wollman, Porter, Winans, Morgan
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852080

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852080. Public record. Not legal advice.