(dissenting).
The majority allows Appellees to escape liability for injuries sustained by Appellant Sharlene Hall.1 Instead of performing a Caesarian section in delivering her first child in April 1969, Appellees delivered the baby by a breech birth causing a hole to develop in Mrs. Hall’s bladder. Soon after the delivery, Mrs. Hall was unable to “hold her water,” and urine uncontrollably leaked from her body. She suffered severe pain and distress for over a year, when corrective surgery was performed by another doctor. She was not told by either Appellee that their negligence might have caused her problem, though they continued to treat her. Rather, Appellee Musgrave remarked; “Maybe it’s because you had so many stitches,” and referred her to another doctor. The second doctor referred her to a third, who informed her that “it wasn’t uncommon for her to get where she couldn’t make water or hold her water” following childbirth. In May 1969 this third doctor informed her that she had a hole in her bladder and that corrective surgery was required. He did not suggest that the problem might have been caused by Appellees’ negligence. As far as she knew or should have known, she had suffered an unfortunate but natural injury.
In April 1970, she visited a fourth physician, Dr. Shelley. From him she discovered for the first time that her difficulty was related to Appellees’ negligent handling of the delivery a year earlier. This action was filed within a year of the discovery.
The majority affirms the District Court’s ruling that Appellants may recover nothing from Appellees for the damages inflicted by their malpractice. It does so on the basis that Kentucky law bars malpractice actions filed more than a year after “the harmful effect of the complained of negligence first manifests itself.” Since Mrs. Hall knew of her difficulty in May 1969, her February 1971 action was filed too late.
Were this a correct expression of Kentucky law, I would apply it, under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). No Kentucky court has announced such a rule, however, and I believe none would do so. Kentucky law is that a plaintiff has one year to file a malpractice action from the time she discovers or in the exercise of reasonable diligence should have discovered that a defendant injured her. This rule entails knowledge that she has a basis for a claim before the statute of limitations begins to run. Since Mrs. Hall did not know and had no reason to know that her problem was the result of Appellees’ negligence until informed of this in April 1970, her action was timely filed.
The difference between the majority and myself rests on the distinction between “discovery of harm” and “discovery of injury.”2 A classic “sponge” case serves to illuminate this distinction.
*1169In Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), the defendants negligently left a sponge in the plaintiff’s abdomen during a 1948 operation. He was aware of the “harm” from this negligence in 1948, as he felt abdominal pain immediately after the operation and for nine years thereafter. He did not discover the cause of the pain until 1957, when surgery revealed the sponge. Only then did he discover that he had been “injured” during the 1948 operation.
The Ayers Court held that his malpractice claim was not barred by Pennsylvania’s two-year statute of limitations. His cause of action accrued not in 1948, when he discovered the “harmful effect” of the malpractice, but in 1957, when he discovered the fact of “injury.” As the Ayers Court states,
[T]o hold that the statute begins to run at the date of the [original operation] is in most cases to take away the remedy of the injured party before he can show that an injury has been done him. A result so absurd and so unjust ought not to be possible.
The statute will run against a claim for compensation from the time the existence of the claim was, or might have been known to the plaintiff 3
The majority cites no support for its holding that the Kentucky Court of Appeals would not follow the Ayers reasoning but would instead adopt a “discovery' of the harm” rule. In fact, Kentucky’s supreme tribunal relied on Ayers when it adopted a “discovery of injury” rule in 1970.
Before 1970 the Kentucky courts had construed the malpractice statute of limitations' as barring actions brought more than one year after the date of the medical mistreatment. See Jones v. Furnell, 406 S.W.2d 154 (Ky.1966); Guess v. Linton, 236 Ky. 89, 32 S.W.2d 719 (1930). The Kentucky statute reads simply that “an action against a physician or surgeon for negligence or malpractice” must be brought “within one (1) year after the cause of action accrued.”
In Tomlinson v. Siehl, 459 S.W.2d 166 (Ky.1970), the Kentucky Court of Appeals reversed its construction of the statute, stating:
Appellants frankly admit that the foregoing cases represent the law up to now, but they earnestly insist that these cases should be overruled and that the statute of limitations should not begin to run until the discovery of the cause of action.. (Emphasis added.)
We are inclined to agree.4
Phrasing its holding another way the court held, “[t]he cause of action does not accrue under the statute until the discovery of the injury.”5
The new Kentucky rule was refined a year later in Hackworth v. Hart, 474 S.W.2d 377 (Ky.1971). There the Kentucky Court of Appeals stated its rule in two similar ways:
[T]he statute begins to run on the date of discovery of the injury, or from the date it should, in the exercise of ordinary care and diligence, have been discovered. (emphasis in original)
*1170Appellants’ cause of action commenced to run at the time he discovered or should have discovered that the operation was not successful.6
Nowhere does Tomlinson, Hackworth, or any other post-1970 Kentucky opinion refer to “discovery of the harmful effect” as the time which starts the one-year limitations period running. Every formulation of the Kentucky rule in Tomlinson and Hackworth — “discovery of the cause of action,” “discovery of the injury,” constructive “discovery of the injury,” and actual or constructive discovery “that the operation was not successful” embodies the concern that the plaintiff be aware or have a reasonable basis for recognizing that he has a cause of action before the statute of limitations begins to run.
Indeed, every “discovery” jurisdiction which has had occasion to consider the “harm” — “injury” distinction has concluded that the majority’s test is wrong.
All three opinions quoted by the Tomlinson Court reject the majority’s test. One of the three is Ayers. Layton v. Allen, 246 A.2d 794 (Del.1968), also requires that a plaintiff have actual or constructive knowledge of the fact of injury. As the Layton Court stated:
“Where choice must be made between the defendants’ problems of lost evidence, faded memories, and missing witnesses, on the one hand, and a deprivation to the plaintiff of any and all remedy for the wrong done her, on the other, the law must be construed in favor of the blamelessly ignorant plaintiff and against the interests and convenience of the wrongdoer.7
The third opinion relied on by the Tomlinson Court is Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 327 P.2d 131 (1958). There a California .appellate court required knowledge of both the “negligent cause and its deleterious effect” 8 to begin the running of the limitations period before the physician-patient relationship ended.9
The Tomlinson Court sought to join the reasoning in these opinions, not to reject it. Furthermore, it noted the “mass exodus” from its former rule and joined the jurisdictions adopting the “discovery of injury” test.
A survey of the law in the “discovery” jurisdictions Tomlinson sought to follow reveals not a single decision in favor of a “harmful effect” test.
The formulation of the Michigan Supreme Court in Johnson v. Caldwell; 371 Mich. 368, 379, 123 N.W.2d 785, 791 (1963), could not be more clear that it is the actual or constructive discovery of the physician’s malpractice, not the recognition of “harmful effect,” which begins the limitations period:
Simply and clearly stated the discovery rule is: The limitation statute or statutes in malpractice cases do not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act.
This formulation has been adopted verbatim in Kansas and Iowa. Hecht v. *1171First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649, 657 (1971); Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94 (1967).10
States phrasing their rule in terms of actual or constructive discovery of “the wrongful act,” “the defendant’s negligence,” “the defendant’s conduct,” or “the act of malpractice” are Florida,11 Texas,12 Arizona,13 Colorado,14 Idaho,15 Illinois,16 Washington, 17 Nebraska,18 Rhode Island,19 North Dakota,20 Hawaii,21 Louisiana,22 Oklahoma,23 North Carolina,24 and California.25
*1172Several other states require that a plaintiff know that he has “a basis for an actionable claim” (New Jersey),26 that he has “a cause of action” (Oregon and Maryland),27 or that he has a “claim” (Pennsylvania).28
The remaining “discovery” jurisdictions start the running of their statutes of limitations upon the discovery of foreign objects left in plaintiffs’ bodies, not upon earlier feelings of pain in the affected areas 29
Like every “discovery” jurisdiction surveyed, federal law requires discovery of more than “harmful effect.”30 In Jordan v. United States, 503 F.2d 620 (6th Cir. 1974), we squarely rejected a “harmful effect” rule, stating:
Implicit in the federal cases applying this “discovery” rule is the requirement that the claimant must have received some information, either by virtue of acts he has witnessed or something he has heard, or a combination of both, which should indicate to him, when reasonably interpreted in light of all the circumstances, that his injury was the result of an act which could constitute malpractice.31
I believe, after extensive survey, that the majority’s test is a totally inaccurate expression of the discovery rule adopted by the Kentucky Court of Appeals in Tomlinson and Haekworth. Just as Kentucky looked to other jurisdictions to reverse its prior rule, it is reasonable to assume it would adopt the unanimous view of these jurisdictions that Appellants’ claim is not time-barred. The majority’s test violates the basic principle of the discovery rule — that a plaintiff be aware of the right to bring an action before that right is taken away. As the Oregon Supreme Court stated:
To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, ‘You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,’ makes a mockery of the law.32
Appellants did not know and could not reasonably have known of the wrong in*1173flicted upon them until April 1970, when they were first informed of Appellees’ negligence. Their complaint was filed within a year of that discovery, and is not barred by Kentucky’s statute of limitations.
There is an alternative ground on which the District Court’s judgment should be reversed. Section 413.190, Ky. Rev.Stat., tolls the running of the limitations period for the time a defendant “by any . . . indirect means obstructs the prosecution of the action.” Appellants did not sue earlier because they were assured by Appellees and the doctors to which Appellees referred them that the problem was an unfortunate but natural result of childbirth, which could be corrected by surgery. Appellees thereby obstructed the prosecution of this action, and the limitations period should be tolled until the time Appellants learned that Appellees had misrepresented the cause of the medical problem. There is ample Kentucky case law barring persons such as Appellees from benefiting from their false statements. See Walter Bledsoe & Co. v. Elkhorn Land Co., 219 F.2d 556 (6th Cir. 1955); Adams v. Ison, 249 S.W.2d 791 (Ky.1952); St. Clair v. Bardstown Transfer Line, 310 Ky. 776, 221 S.W.2d 679 (1949); City of Louisa v. Horton, 263 Ky. 739, 93 S.W.2d 620 (1936); Chesapeake & N. Ry. v. Speakman, 114 Ky. 628, 71 S.W. 633 (1903); Metropolitan Life Ins. Co. v. Trende, 21 Ky.L.Rep. 909, 53 S.W. 412 (1899).
The majority has fashioned a unique and harsh rule of law that is followed in no jurisdiction I have found, and has thereby deprived Appellants of an award of damages intended to compensate for a year of anguish. It has done this despite express language of the Kentucky Court of Appeals that rejects the majority’s test in favor of a rule that gives plaintiffs an opportunity to vindicate their legal rights. In the belief that the Kentucky Court of Appeals would not perpetrate the injustice upon Appellants which the majority’s holding entails, I respectfully dissent.
. In reviewing the grant of summary judgment, we must construe the facts liberally in favor of Appellants. L’Orange v. Medical Protective Co., 394 F.2d 57, 59 (6th Cir. 1968).
. The Restatement (Second) of Torts § 7, Comment (1965), carefully distinguishes between “harm” and “injury”. “Harm” is defined as “the existence of loss or detriment in fact of any kind to a person resulting from any cause.” Thus, harm in a malpractice context consists of the loss of health or other physical state which might be expected to follow medical treatment.
“Injury,” on the other hand, is defined as “the invasion of any legally protected interest of another.” Injury in a malpractice context connotes the actual wrong done to a patient, the act of malpractice itself.
*1169“Harm” could result from a successful operation. This would be true where a communicated, calculated risk simply turns out poorly for the patient, although the medical treatment met the highest medical standards. There would be no “injury” in this case, despite the existence of “harm.”
The majority is wrong to equate “harmful effects” with “injury.” It is the date of actual or constructive discovery of injury — of the invasion of a legally protected interest, i.e., of a cause of action — that begins the running of the statute of limitations in a jurisdiction which has adopted the “discovery of injury” rule, as Kentucky has.
. 154 A.2d at 791, quoting Lewey v. H. C. Frick Coke Co., 166 Pa. 536, 548, 31 A. 261, 263 (1895). For other Pennsylvania decisions holding that the crucial time is the discovery that a patient “has a claim,” see infra n. 28.
. 459 S.W.2d at 167.
. 459 S.W.2d at 168.
. 474 S.W.2d 379.
. 246 A.2d at 79, quoted in Tomlinson, 459 S.W.2d at 167. This statement in Layton makes clear that the Delaware Supreme Court would not deprive a plaintiff of a malpractice claim before she had reason to know of its existence. In Layton the recognition that the basis for a claim existed coincided with the recognition of the “harmful effect” — when the foreign object was removed from the patient’s body.
. 327 P.2d at 135.
. In Hundley the plaintiff knew the “harm” done to her (unconsented-to removal of certain organs) well before she discovered that she had been the victim of malpractice (when she learned that the organs had been removed unnecessarily). The statute began to run at the later time, not upon the discovery of the harmful effect. For other California precedent see infra n. 25.
. Chrischilles applies the discovery rule to the professional malpractice of an architect. The rule was applied in the medical context in Flynn v. Lucas County Memorial Hospital, 203 N.W.2d 613 (Iowa 1973).
. Edwards v. Ford, 279 So.2d 851 (Fla. 1973) (when “act of negligence became known” in legal malpractice context). See also City of Miami v. Brooks, 70 So.2d 306, 309 (Fla.1954) (in medical context “the statute attaches when there has been notice of an invasion of the legal right of the plaintiff or he has been put on notice of his right to a cause of action.”).
. Hays v. Hall, 488 S.W.2d 412 (Tex. 1972) (upon “discovery of the true facts concerning the failure of the operation,” adopting Hack-worth). See also Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967).
. Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 252, 482 P.2d 497, 501 (1971) (“when the plaintiff knew or by the exercise of reasonable diligence should have known of the defendants’ conduct.”). See also Abernethy v. Smith, 17 Ariz.App. 363, 367, 498 P.2d 175 (1972).
. Owens v. Brochner, 172 Colo. 525, 474 P.2d 603, 607 (1970) (“when the patient discovers or, in the exercise of reasonable diligence, should have discovered the doctor’s negligence.”).
. Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970) (when “the plaintiff knew or should have known of the defendant’s negligence.”). See also Johnson v. Stoddard, 96 Idaho 230, 526 P.2d 835 (1974).
. Lipsey v. Michael Reese Hospital, 46 Ill.2d 32, 262 N.E.2d 450, 453 (1970) (when “plaintiff discovered her true condition or should have known of it and the defendants’ claimed negligence.”).
. Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631, 635 (1969) (plaintiff “should be accorded the right of asserting that she had no reasonable way of ascertaining that a wrong had been done her.”).
. Acker v. Sorensen, 183 Neb. 866, 165 N.W.2d 74, 77 (1969) when “the act of malpractice with resulting injury was, or by the use of reasonable diligence could have been, discovered.” See also Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581, 584 (1962) (“The mischief which statutes of limitations are intended to remedy is the general inconvenience resulting from delay in the assertion of a legal right which it is protectable to assert, [citation omitted] If an injured party is wholly unaware of the nature of his injury or the cause of it, it is difficult to see how he may be charged with a lack of diligence or sleeping on his rights.”).
. Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968). Wilkinson adopted “the ‘discovery rule’ which, briefly stated, declares that with reference to medical malpractice suits the statute of limitations does not commence until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered, that he has sustained an injury as a result of the physician’s negligent treatment.” 243 A.2d at 751. “To require a man to seek a remedy before he knows of his rights, is palpably unjust. . . . No statute should be construed to bring about a patently inane result.” 243 A.2d at 753.
. Iverson v. Lancaster, 158 N.W.2d 507, 510 (N.D.1968) (when “the act of malpractice with resulting injury is, or by reasonable diligence could be, discovered.”).
. Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220, 223 (1967) (when “plaintiff knew or should have known of the defendant’s negligence. . . . The injustice of barring the plaintiff’s action before she could reasonably have been aware that she had a claim is patent.”).
. Springer v. Aetna Casualty and Surety Co., 169 So.2d 171, 173 (La.App.1964) (when “plaintiff actually learned of the negligence,” i.e., upon “the patient’s discovery of the injury”).
. Seitz v. Jones, 370 P.2d 300 (Okl.1962) (upon discovery of the “negligence.”)
. Nowell v. Hamilton, 249 N.C. 523, 107 S.E.2d 112, 113 (1959) (upon “discovery of [the] defendant’s asserted wrongful act.”).
. “[T]he statute of limitations does not commence to run until the plaintiff discovered his injury, or through the use of reasonable diligence, should have discovered it. [citations omitted]. We must then determine whether the knowledge received by [the] plaintiff . put him on notice that defendants had been guilty of negligence . . ..” Stafford v. Shultz, 42 Cal.2d 795, 270 P.2d 1, 7 (1954).
. Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563, 565 (1973). See also Yerzy v. Levine, 57 N.J. 234, 271 A.2d 425, 426 (1970).
. Frohs v. Greene, 253 Or. 1, 452 P.2d 564, 565 (1969); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Jones v. Sugar, 18 Md.App. 99, 305 A.2d 219 (1973).
. Gemignani v. Philadelphia Phillies National League Baseball Club, 287 F.Supp. 465, 467 (E.D.Pa.1967); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 791 (Pa.1959). See also Smith v. Bell Telephone Co., 397 Pa. 134, 141-42, 153 A.2d 477, 481 (1959) (requiring that plaintiff recognize “the cause of the harm.”).
. Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 (N.Y.1969); Christiansen v. Rees, 20 Utah 2d 199, 436 P.2d 435 (1968); Johnson v. St. Patrick’s Hospital, 148 Mont. 125, 417 P.2d 469 (1966); Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965).
. The Circuits have been uniform in not cutting off the right to relief unless the plaintiff was aware or should have been aware of the existence of a cause of action for more than two years before bringing suit. See Hungerford v. United States, 307 F.2d 99, 102 (9th Cir. 1962) (“claim for malpractice accrues when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice”); Quinton v. United States, 304 F.2d 234, 235 (5th Cir. 1962) (“a malpractice action against the United States can be maintained within two years after the claimant discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based”), followed in Toal v. United States, 438 F.2d 222, 225 (2d Cir. 1971). See also Johnson v. United States, 271 F.Supp. 205, 210 (W.D.Ark. 1967).
. 503 F.2d at 622.
. Frohs v. Greene, 253 Or. 1, 452 P,2d 564, 565 (1969), quoting Berry v. Branner, 245 Or. 307, 312, 421 P.2d 996, 998 (1966).