dissenting.
I dissent. The majority is construing I.C. § 5-219(4) much too narrowly. The standard to be applied in regard to the granting of a motion for summary judgment by the trial court is that the trial court must examine the issues, for the purpose of determining the existence of any material fact issue. If no such material fact issue exists, a summary judgment should be granted. Disputed issues of fact, which if resolved in favor of the plaintiff would still fall short of establishing plaintiff’s claim, are not material issues of fact and, therefore, do not stand in the way of summary judgment. McNeil v. Gisler, 100 Idaho 693, 604 P.2d 707 (1979); Bandelin v. Pietsch, 98 Idaho 337, 563 P.2d 395 (1977). Applying this standard to the facts of this case shows there exists no dispute of any material fact and, therefore, the motion for summary judgment was properly granted. The statute of limitations for discovery of a foreign object in the body of the patient is set by I.C. § 5-219(4). This statute establishes a discovery rule for this specific type of case, and allows a one-year time after “injured party knows or in the exercise of reasonable care should have been put on inquiry regarding the condition” of a foreign object.
After looking at the X-ray and interpreting the mass to be a sponge, Dr. Abando testified that he discussed “this particular problem” with the patient on August 3, 1977. He informed her on this date that there was a foreign body left because of her previous surgery. Mrs. Reis testified that Dr. Abando discussed the necessity of an operation to remove what was there “[j]ust before I went into the hospital.” She testified that Dr. Abando stated “[h]e did not know what he expected to find. He knew that it was not the sutures. He did not have any idea of what it could be; but, whatever it was, it had to come out because it was causing me a great deal of pain and problems.” Mrs. Reis also stated that she assumed it came from Dr. Cox’s operation.
Dr. Abando did not testify that he discussed “this particular problem” on any date other than August 3, 1977, and even though Mrs. Reis could not remember the exact date that Dr. Abando told her it was not the sutures, their testimony taken as a whole, shows that Dr. Abando told Mrs. Reis on August 3, 1977, that it was not the sutures. Therefore, she had notice more than a year before the suit was filed.
The holding of the majority would seem to require knowledge of specific foreign object in the body. However, our statute only requires that a person be “put on inquiry regarding the condition or matter complained of . . .. ” This is an objective standard and does not require the precise knowledge of the type of foreign object. The majority is applying a subjective standard which would require actual knowledge and the statute does not so require.
Even if we were to strain the facts and assume that she was not put on inquiry notice until right before she entered the hospital on August 8, 1977, the record indicates that the State Board of Medicine did not receive the prelitigation request until August 9, 1978. I.C. § 6-1005 states that “the applicable statute of limitations shall be tolled ... during the time that such a claim is pending before such a panel ... . ” (Emphasis added.) Following this statute the proceeding will not toll the statute of limitations unless a claim is pending and a claim cannot be pending until it is received. Since there is no question of fact that the claim was not received by the State Board of Medicine until August 9, 1978, I.C. § 6-1005 did not toll the running of the statute of limitations on August 8, 1978. This rationale is consistent with I.C. § 5-228 that states an action in the courts commences “when the complaint is filed.”