concurring specially on denial of petition for rehearing:
The Court is now correct when it concludes that it is the filing of the claim with the State Board of Medicine, not the commencement of the hearings as stated in the Court’s original opinion, which tolls the running of the statute of limitations and commences the proceedings before the prelitigation hearing panel.
As to when the tolling of the statute of limitations ends, and the statute begins to run again, there is ambiguity in the statutes. I.C. § 6-1005 provides that “the applicable statute of limitations shall be tolled and not be deemed to run during the time that such claim is pending before such panel and for thirty days thereafter.” When the panel finally rendered its decision, the plaintiff filed her complaint within thirty days thereafter. Accordingly, if I.C. § 6-1005 were the only statute involved, plaintiff’s complaint would have been unquestionably timely.
The question in this case is what effect is to be given to the provisions of I.C. § 6-1011, which provides:
“6-1011. Limit on duration of proceedings — Panel’s jurisdiction. — There shall be no repeat or reopening of panel proceedings. In no case shall a panel retain jurisdiction of any such claim in excess of ninety (90) days from date of commencement of proceedings. If at the end of such ninety (90) day period the panel is unable to decide the issues before it, it shall summarily conclude the proceedings and the members may informally, by written communication, express to the parties their joint and several impressions and conclusions, if any, albeit the same may be tentative or based upon admittedly incomplete consideration; provided, by written agreement of all parties the jurisdiction of the panel, if it concurs therein, may be extended and the proceeding carried on for additional periods of thirty (30) days.” (Emphasis added.)
There is no question that the claim in this case was pending before the panel longer than ninety days. The trial court concluded, with some justification, that since the panel's jurisdiction terminated at the end of ninety days from the filing of the pre-litigation hearing claim, thereafter the “claim [was no longer] pending before such a panel,” within the meaning of 6-1005, and accordingly the statute of limitations began to run again. However, that interpretation would tend to frustrate the legislative intent, in cases like this one, that the parties have the benefit of the pre-litigation panel’s determination for thirty days so that they can attempt an out-of-court settlement before the tolling period ends and the litigation period commences. If I were convinced that the legislature had intended the tolling period to end at the end of one hundred and twenty days regardless of the status of the pre-litigation panel’s deliberations, I would vote to affirm the dismissal in this proceeding. Streib v. Veigel, 109 Idaho 174, 706 P.2d 63 (1985) (Bakes, J., dissenting). However, there is some doubt on this issue and, accordingly, the Court’s decision today, which is weighted in favor of the proceedings of the pre-litigation panel, is supportable.
If today’s decision does not accurately carry out the intention of the legislature, it should be very easy for an amendment to I.C. § 6-1005 to be made clearly pointing out that the statute is tolled during the time that “such claim is pending before *714such panel and for thirty days thereafter,” but in no event longer than one hundred and twenty days from the filing of said claim.