One important issue is raised by this appeal: When does a medical malpractice cause of action commence to run ?
Under existing Wisconsin law there is no question but what the amended complaint states a cause of action for medical malpractice alleging negligence in the removal of Mrs. Peterson’s gallbladder, the failure to remove the cystic duct and the entire gallbladder and the leaving of the foreign substance in her body at the time. The only question is: Did that cause of action ripen at the moment the negligent surgery was performed in 1954 ? Or in 1971, at the time Mrs. Peterson experienced abdominal inflammation? Or at the time the negligence was discovered in 1971 ?
*4As the Wisconsin law now stands the medical malpractice action accrues at the time the negligent act occurs with accompanying injury.1
Recently, in Olson v. St. Croix Valley Memorial Hospital,2 the most recent pronouncement of the law on this subject, this court held that where Judy Olson (née Hagstrom) was given a blood transfusion of the wrong type in 1962, prior to her marriage, the cause of action accrued at the time of the improper blood transfusion and not in 1969 when her second child was born dead (a first child had been born live in 1966 but had lived only seven hours). So in the instant case the cause of action accrued at the time of the alleged negligent act, when the cystic duct and the entire gallbladder were allegedly not removed and when the foreign substance (surgical gauze) was allegedly left in the plaintiff’s abdomen.
Thus, as the law now stands, the statute of limitations began to run in 1954, so that the period in which an action could be brought had long since elapsed at the time of the 1971 developments.
To reverse the trial court’s holding here we are asked to alter Wisconsin law by adopting the so-called discovery rule. In McCluskey v. Thranow 3 we were asked to consider the adoption of the discovery rule and we said that “this question is not open to new adjudication in Wisconsin.” 4 In the more recent case of Olson v. St. Croix Valley Memorial Hospital 5 we also refused to reconsider that rule under the particular facts of that *5case. In Reistad v. Manz 6 we last considered the adoption of the discovery rule on its merits, in a case where the defendant doctors had performed surgery on the deceased plaintiff in 1938 and left gauze in his abdomen. The plaintiff brought an action twenty years later. This court refused to adopt the discovery rule, stating if a change in the statute of limitations was in order, the legislature was the proper body to make that change. Although many states have adopted the discovery rule by court decision,7 we believe that the change of the statute of limitations is peculiarly a question of policy which should be left to the legislature to make if so *6convinced. 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 Mc-Cluskey and Reistad, stated:
“. . . 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.” 9
Similarly, in Milwaukee County v. Schmidt, Garden & Erikson 10 the court rejected a “discovery rule” in negligence actions involving architects; and in Denzer v. Rouse 11 the court likewise rejected such a rule with respect to malpractice of an attorney. Earlier, the court also had rejected the “discovery rule” in an action against a bank for negligently honoring a check.12
The question of what the statute of limitations should be as to any cause of action is a question of public policy. Two conflicting policies confront each other when statutes of limitation are presented: (1) That of discouraging stale and fraudulent claims, and (2) that of allowing meritorious claimants, who have been as diligent as possible, an opportunity to seek redress for injuries sustained. 13
*7We conclude that this is a matter peculiarly for legislative determination. Because of the numerous cases in which the present three-year requirement for commencing an action by a party who is the victim of medical malpractice is too short, we strongly recommend to the legislature that the basic three-year statute for negligence actions due to medical malpractice be amended.
By the Court. — Judgment affirmed.
See Reistad v. Manz (1960), 11 Wis. 2d 155, 105 N. W. 2d 324; McCluskey v. Thranow (1966), 31 Wis. 2d 245, 142 N. W. 2d 787; Volk v. McCormick (1969), 41 Wis. 2d 654, 165 N. W. 2d 185; Olson v. St. Croix Valley Memorial Hospial (1972), 55 Wis. 2d 628, 201 N. W. 2d 63.
Supra, footnote 1.
Supra, footnote 1.
Id. at page 260.
Supra, footnote 1.
Supra., footnote 1.
Decisions framed in terms of when the cause of action “accrued”: see, e. g., Owens v. Brochner (1970), 172 Colo. 525, 474 Pac. 2d 603; Renner v. Edwards (1969), 93 Idaho 836, 475 Pac. 2d 530; Chrischilles v. Griswold (Iowa 1967), 150 N. W. 2d 94; Flanagan v. Mount Eden General Hospital (1969), 24 N. Y. 2d 427, 248 N. E. 2d 871; Wilkinson v. Harrington (1968), 104 R. I. 224, 243 Atl. 2d 745; Janisch v. Mullins (1969), 1 Wash. App. 393, 461 Pac. 2d 895; Morgan v. Grace Hospital, Inc. (W. Va. 1965), 144 S. E. 2d 156.
Courts limiting application of the rule to those cases in which a physician negligently left a foreign object in the body of a patient: see Layton v. Allen (Del. 1968), 246 Atl. 2d 794 (hemostat); Spath v. Morrow (1962), 174 Neb. 38, 115 N. W. 2d 581 (needle); Fernandi v. Strully (1961), 35 N. J. 434, 173 Atl. 2d 277 (wing nut); Gaddis v. Smith (Tex. 1967), 417 S. W. 2d 677 (sponge); Morgan v. Grace Hospital, Inc., supra, footnote 7, (sponge).
Other courts applying the rule to all medical malpractice cases: see Mayer v. Good Samaritan Hospital (1971), 14 Ariz. App. 248, 482 Pac. 2d 497; Stafford v. Shultz (1954), 42 Cal. 2d 767, 270 Pac. 2d 1; City of Miami v. Brooks (Pla. 1954), 70 So. 2d 306; Yoshizaki v. Hilo Hospital (1967), 50 Haw. 150, 433 Pac. 2d 220; Tomlinson v. Siehl (Ky. 1970), 459 S. W. 2d 166; Johnson v. Caldwell (1963), 371 Mich. 368, 123 N. W. 2d 785; Wilkinson v. Harrington, supra, footnote 7.
See: Ala. Code Title 7, sec. 25 (1) (Supp. 1955); 9 Conn. Gen. .Stat., ch. 926, sec. 52-584 (rev. 1958); 2 Ill. Rev. Stat., ch. 83, sec. 22.1 (1965); Or. Rev. Stat., sec. 12.110 (4) (1967).
41 Wis. 2d at 656, 657.
(1969), 43 Wis. 2d 445, 168 N. W. 2d 559.
(1970), 48 Wis. 2d 528, 180 N. W. 2d 521.
Peppas v. Marshall & Ilsley Bank (1957), 2 Wis. 2d 144, 86 N. W. 2d 27.
For good discussions of these conflicting policies, with recommendations for adopting the “discovery rule,” see Comment, Opening Pandora’s Box? An Extension of the Discovery Buie to Negligent Diagnosis in Idaho, 8 Idaho L. Rev. (1972), 370; Com*7ment, Medical Malpractice Statute of Limitations — Adoption, of the Discovery Buie, 59 Ky. L. J. (1971), 990.