(dissenting).
I respectfully dissent.
I will attempt to briefly summarize my reasons therefor. This court stated in the first appeal (Owens v. White, 9 Cir., 342 F.2d 817 at 819) as follows:
“Whether plaintiff’s claim has accrued is a question of law [Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904)], and like all issues of law must be resolved by the court even though this will require evidence.”
My examination of the Chemung case convinces me that this case is not authority for the above statement. Chemung was concerned with two things: (1) Whether the court abused its discretion in refusing to permit the filing of an amended complaint, and (2) whether it was proper to grant a judgment on the pleadings in favor of the defendant where the defendant’s answer had set up a defense of the bar of the statute of limitations. The court held that it was not an abuse of discretion to refuse to permit the amendment to the complaint but that it was error to grant judgment on the pleadings, because “the facts constituting that bar (of the statute of limitations) must be proven the same as any other facts of the case.” (p. 228). That the special defense of the statute of limitations can be tried by a jury is indicated in the discussion in Calvin v. Thayer, 150 Cal.App.2d 610, 310 P.2d 59.
Upon the first appeal this court pointed out that the Idaho court in the Billings case had invoked the discovery rule. It pointed out that the Billings case dealt with a malpractice claim concerning the presence of a sponge alleged to have been carelessly left in the patient’s body during a surgical operation, while the instant case is based upon a claimed negligent diagnosis. The court stated, “It is perhaps also true that the claim in a suit involving a foreign object as in Billings is more apt to be bona fide than one which will undoubtedly depend upon testimony or other indirect elements for proof. But this factual difference is not controlling. It merely relates to the manner of proof.”
The opinion in the first appeal, while indicating that Idaho would invoke the discovery rule after the decision in Billings then went on to suggest that in invoking that rule “the Idaho courts would apply a concept akin to the equitable doctrine of laches to limit the discovery rule * * The opinion cites no authority for this statement and we have been unable to discover any.
I find nothing in the Billings case that supports this suggestion. While the facts in the Billings case show that it was a foreign object case I do not believe that the Idaho Supreme Court limited its findings to such a case. After discussing various rules, the court stated—
“We will, therefore, adhere to the following rule: where a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.”
The above rule shows when the accrual of the action occurs. Nowhere does that case state' that such rule only applies to foreign object cases, or that it does not apply to negligent diagnosis cases. At another place in the decision in the Billings case (389 P.2d p. 231) the court states, “If one is unaware that he has any rights, it cannot be said that he is ‘sitting’ on them.”
In California, where the discovery rule was adopted many years ago, many decisions have applied that rule to negligent diagnosis cases. Costa v. Regents of the University of California, 116 Cal.App.2d 445, 254 P.2d 85; Hemingway v. Waxier, 128 Cal.App.2d 68, 274 P.2d 699; Calvin v. Thayer, 150 Cal.App.2d 610, 310 P.2d 59.
*318I think that the opinion in the instant case is in error in holding in effect that the discovery rule would apply in Idaho in “foreign object” cases but not in negligent diagnosis cases. To me, there is no basis for such a distinction. One may be more difficult of proof than the other. In each case, however, the injury, if any, is a result of the negligence of the doctor, and the patient should have a right of action if he files such action within the proper time after the cause of action accrues.
After the reversal upon the former appeal, the district court decided the ease upon a “balance of equities” doctrine which had not been mentioned in the opinion in the former appeal, and then decided that the “discovery rule” should not be applied in the case. In general, my reasons for dissenting in this case are as follows:
(1) I think the question of when the claim accrued should be determined as a fact in the case like other facts that are required to be established;
(2) I think there is no authority for applying the doctrine of laches in determining when the cause of action accrued;
(3) I think the proper rule is as stated in Billings as follows: “The cause of action does not accrue until the patient learns of or in the exercise of reasonable care and diligence should have learned” of the physician’s negligence. In this connection I note that the district court in the judgment which is before us now found “that plaintiff could have by the exercise of due diligence discovered the alleged malpractice at any time after the surgery and treatment complained of.” To me, the question is not when the plaintiff could have, by the exercise of diligence, learned of the alleged malpractice, but when the plaintiff “in the exercise of reasonable care and diligence should have learned” of it.1
(4) I think the district court was wrong in “balancing the equities”;
(5) I think the trier of fact should determine whether, assuming the doctor’s diagnosis in 1951 as to the malignant character of the tissue was in error, the making of an erroneous diagnosis was negligence in the light of the standard of the medical knowledge on this subject at that time and in that locality.
I would reverse and remand the action to the trier of fact to determine, inter alia, (1) when the cause of action accrued under the discovery rule as stated in Billings; (2) whether the action was brought within two years thereafter; (3) whether the doctor’s diagnosis was incorrect; and (4) if so, whether such incorrect diagnosis was negligent according to the standard of the then medical knowledge in the locality where the physician practiced his profession.
. In a federal tort claims action for negligent medical treatment this court stated:
“There is no dispute that the claim accrued when the claimant knew or in the exercise of reasonable diligence should have known of the acts constituting the alleged malpractice.” Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962).