dissenting.
Apparently, Dortch v. A.H. Robins, Inc., 59 Or App 310, 650 P2d 1046 (1982), is not to be the last attempt by this court to turn the discovery principle on its head, if not eliminate it entirely. The majority finds that from an admixture of facts and hypotheses known in 1971, plaintiff could have fashioned a complaint for malpractice and holds *260that, therefore, discovery of her cause of action occurred then and that the present action is barred, notwithstanding the following:
(1) the act of defendant that would have been alleged in 1971 to be the cause of plaintiffs injury was not in fact the cause;
(2) the negligent act that caused the injury would not have been revealed by pretrial discovery procedures had a complaint been filed in 1971;
(3) the negligent act that caused the injury was not and could not have been discovered before 1975; and
(4) this action was commenced within two years of the discovery of that act and the misleading representation of defendant alleged to have delayed the discovery.
It simply makes no sense to require, in effect, that a plaintiff bring an action for damages on a theory of negligence that later is discovered to be factually wrong and to bar the plaintiff from bringing an action on the correct theory. As the court stated in Berry v. Branner, 245 Or 307, 312, 421 P2d 996 (1966):
“* * * 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. * * * “ (Emphasis supplied.)
That is precisely what the majority is telling plaintiff here. Therefore, I respectfully dissent.
The facts make this a unique and difficult case. Usually, the cause of action said to be barred and the tort a defendant claims was discovered beyond the period of limitation are one and the same. That is not the case here. In 1968, defendant removed plaintiffs appendix during a gall bladder operation. Plaintiff suffered pain and discomfort in her abdomen following the surgery. She was examined and treated by defendant for several weeks after the operation, but the symptoms continued. In plaintiffs second amended complaint she alleges that, during post-operative treatment, defendant told her that he had taken out the entire appendix and that the ills that she was suffering were not due “in any manner, to any difficulty or complication as a result of the [1968] surgery”; that these representations “continued to be made” until plaintiff had left defendant’s care and *261that “said representations * * * were false and misleading.” Plaintiff testified that the statements alleged had been made and stated that, during one of her post-operative visits to defendant’s office, defendant told her that:
“* * * he had taken my gall bladder out, that the surgery had proceeded real well until he came to the appendix and it was in an abnormal position or something, but he said he finally got it all out.” (Emphasis supplied.)
In May, 1971, Dr. Watson and Dr. Rutter performed exploratory surgery to relieve a bowel obstruction and in the process found stitches in a large abscess where the appendix had been. Both Dr. Watson and Dr. Rutter believed that the abscess was the result of the 1968 surgery, and they hypothesized at the time that it was caused by “leakage from the [appendix] stump.” The malpractice action contemplated following the discovery of the abscess was not filed, because plaintiffs attorney, after discussions with Dr. Rutter and Dr. Watson and a review of the medical records, concluded that “the stitching that came apart from that operation could occur in the absence of negligence.”
Plaintiff’s abdominal pain continued, and in August, 1975, during further exploratory surgery, Dr. Watson and Dr. Meyerding discovered a piece of tissue that a pathologist identified as appendix tissue and that Drs. Watson and Meyerding concluded was the distal end or tip of the appendix. Both doctors testified that the abdominal problems plaintiff experienced from 1968 to 1975 resulted from bacterial contamination coming from this fragment of her appendix.
As the majority observes, the threshold issue is “when the injury [was] first discovered or in the exercise of reasonable care should have been discovered.” ORS 12.110(4). The majority correctly states:
“* * * ORS 12.110(4) codifies the discovery principle developed by case law, beginning with Berry v. Branner, 245 Or 307, 421 P2d 996 (1966). In Berry, the court held that the cause of action “accrued [and the statute of limitation began to run] at the time plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by defendant.” 245 *262Or at 315-16. In Hoffman v. Rockey, 55 Or App 658, 663, 639 P2d 1284 (1982) (involving medical malpractice and applying ORS 12.110(4)), we explained that:
“A plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured, (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent. * * * “
“Application of the rationale is an objective matter and contemplates that the facts known and those that would be disclosed through a diligent inquiry undertaken by a reasonable person in possession of those facts are to be considered together in determining when a plaintiff discovered a cause of action.” (Emphasis supplied.)
Conversely, even though the facts known would cause a reasonable person to attempt to determine the nature or cause of an injury, if for some reason those facts and the results of reasonable inquiry taken together do not or should not reveal the injury or the negligent conduct of defendant causing the injury, there is no discovery and the statute does not begin to run. See Frohs v. Greene, 253 Or 1, 452 P2d 564 (1969).
Until “the tort” is discovered, i.e., until “the [negligent] act” is known, the statute does not begin to run. Hoffman v. Rockey, supra. The majority asserts:
“* * * Plaintiff should have known in 1971 that she had a cause of action; she should have discovered facts from which a reasonable person could find that her abdominal pain was caused by an infection, that the infection was a complication from her 1968 surgery, that the complication resulted from defendant’s act of removing the appendix through the gall bladder incision, and that defendant’s decision to remove the appendix through that incision or his decision to operate at all were negligent.”
This information does not constitute knowledge of defendant’s negligent conduct. The fact of defendant’s removing the appendix through the gall bladder incision had no significance with respect to the discovery of the tort alleged until the discovery of the piece of appendix tissue in 1975. Indeed, that fact had no more significance in 1971 than the information that defendant had performed the surgery. Discovery requires more than knowledge of a bad result. *263Plaintiffs claim for damages rests on the allegation that her injury was caused by defendant’s negligent act of leaving the distal portion of her appendix in her body. The appropriate inquiry is when that act should have been discovered.
There is no question that, following the 1975 surgery, plaintiff knew she had a cause of action; i.e., she knew that she had been injured, that the injury, according to her physicians, was caused by defendant’s failure to remove all of her appendix and that such an omission was probably negligent. See Hoffman v. Rockey, supra, 55 Or App at 663. The question whether discovery occurred before the 1975 surgery is resolved by determining whether, before that event, the facts known to plaintiff and those facts that would have been disclosed through reasonable and diligent inquiry would have revealed the existence of the cause of action alleged, and in particular, the failure of defendant to remove all of plaintiffs appendix.
Dr. Watson testified that there was “no safe way of discovering” the appendix tissue during the 1971 surgery. He explained that he did not expect to find such tissue, because he’d “never heard of it not being totally removed” and that, because of the existence of the abscess cavity and the risk of spreading the infection further, exploration would have been “poor surgical judgment.” Immediately after the 1971 surgery, plaintiff, through her physicians and attorney, began an inquiry into the cause of the infection disclosed by the surgery. The inquiry, which included a review of plaintiffs medical records from the 1968 surgery, did not, in fact, reveal the incomplete removal of the appendix. The pathologist who examined the appendix taken from plaintiff in 1968 testified that it was “complete with the distal tip portion intact” and that, if the appendix had not been complete, that fact would have been noted in his report. Plaintiff alleges that she continued to rely on defendant’s representation that he had removed her entire appendix until the 1975 surgery revealed otherwise. She testified that, after the discovery of the infection during the 1971 surgery, she continued to believe defendant’s statement that her post-operative problems were not related to the surgery that defendant had performed.
*264On the other hand, plaintiff suspected even before the 1971 surgery that her continuing abdominal problems “had to be related” to the 1968 surgery. Dr. Rutter explained in his affidavit that when he discovered the abscess, he “knew it was a complication secondary to the removal of the patient’s appendix.” In a 1971 letter to Ferguson, Dr. Watson stated that “some difficult questions * * * should be answered,” among them whether there was “adequate surgical exposure to facilitate the incidental removal of the appendix.” The 1968 hospital records reviewed by Dr. Rutter, Dr. Watson and Ferguson included defendant’s surgical dictation, which contained the following description: “The appendix was elongated, retrocecal in location [i.e. lying behind the cecum and therefore difficult to visualize], bound down by dense adhesions * * *.” Dr. Watson testified that “if you haul a retrocecal appendix into view, it would be easy accidentally to separate it [and that] it might have been missed when it came apart in freeing it up.”
Under these circumstances, I believe that genuine issues of fact exist as to whether the inquiry undertaken following the 1971 surgery by plaintiff, her physicians and her attorney was reasonable and diligent and, if not, whether the facts known and those that a reasonble inquiry would have disclosed would have revealed the existence of the cause of action more than two years before plaintiffs claim was filed. For the same reason, it cannot be said that, following the 1971 surgery, the alleged continued reliance by plaintiff and her physicians on the representation that defendant had removed “all” of the appendix was entirely unreasonable or misplaced, although, presumably, it was obvious that her infection was connected with the 1968 surgery. An issue of fact therefore exists as to when the falsity of that representation was discovered.
Thus, although the majority’s statement of what plaintiff knew or should have known in 1971 is correct, its assessment of the implications of such knowledge is not. The suspected cause of plaintiffs injury in 1971 is fundamentally different from the causative act alleged. The action contemplated in 1971 was based on the conclusion that the infection was caused by leakage from the stump or *265“sloughing off” of the stump tissue itself. Assuming arguendo that the actual cause of the infection was a piece of appendix tissue found in 1975, that conclusion was wrong. The fact that there may have been a discovery of a “hypothetical” cause of action in 1971 is immaterial to the question when this cause of action was discovered.
While it is certainly true, as the majority suggests, that all details of a defendant’s negligent conduct need not be known before the statute begins to run, that principle, given the critical character of the fact not known in 1971, does not apply here. First, the 1975 discovery of the piece of plaintiffs appendix completely changed the physicians’ conclusion as to the cause of the abdominal injury she had suffered from 1968 until 1971 and explained the problems that continued following the 1971 surgery. That discovery identified “the [negligent] act” and, as stated above, made significant defendant’s act of removing the appendix through the gall bladder incision. Second, unless the majority is willing to assume that exploratory surgery would have been part of the pretrial discovery procedure had a complaint been filed in 1971, the quoted language from Sculace v. Rogers, 49 Or App 433, 619 P2d 1316 (1980), is completely inapplicable to this case. Plaintiff did not, in fact, know between 1971 and 1975 that defendant had not removed her entire appendix. There is no question that she should have inquired into the cause of the infection discovered in 1971; however, whether that inquiry should have revealed the incomplete removal of her appendix or made unreasonable further reliance on defendant’s statement that he had gotten “it all out” is a question of material fact.