(dissenting). I cannot agree with the view expressed by my Brother T. G. Kavanagh.
In Price v Hopkin, 13 Mich 318 (1865), Mr. Justice Cooley was dealing with a situation wherein it was claimed that a reduction of limitation from 20 to 15 years had the effect of foreclosing all causes of action which had accrued more than 15 years prior to the effective date of the new statute of limitations.
This Court discussed the precise question in Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969), and concluded that the legislatively adopted last treatment rule did not have the effect of extinguishing any causes of action based upon malpractice occurring prior to January 1, 1963, that being the effective date of RJA § 5838; MCLA 600.5838; MSA 27A.5838. As to such causes of action, the Court held that the discovery rule remained in effect. Quinlan v Gudes, 2 Mich App 506; 140 NW2d 782 (1966) was to like import.
My Brother’s opinion goes considerably beyond Price, Winfrey and Quinlan, to elevate the discovery rule to constitutional status, concluding, in effect, that no statute of limitations can bar a *749cause of action until the same has been discovered, or, in the exercise of reasonable diligence, should have been discovered.
I believe that is an unwarranted interference with the power of the Legislature.
I believe that the Legislature does have the power to declare the time within which rights must be discovered, as well as asserted, and judicial disagreement with the wisdom of such policy does not justify nullification of the statute.
M. S. CpLEMAN, J., concurred with T. E. Brennan, J. M. S. Coleman, J.(to affirm). I agree with the opinion of Justice Brennan but I would add to it. I believe the majority decision fails on at least three grounds.
It is a clear case of judicial legislation. The statutes provide:
MCLA 600.5827; MSA 27A.5827:
"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
MCLA 600.5838; MSA 27A.5838:
"A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.” (Emphasis added.)
Although individuals may differ as to the wis*750dom of the legislation, it is not our function to rewrite it.
Even in the words of the majority opinion providing that an action in malpractice must be brought within two years after plaintiff discovers, "or in the exercise of reasonable diligence should have discovered, the asserted malpractice,” the instant plaintiff would fail.
It is beyond comprehension that plaintiff Mrs. Dyke could have been, since 1965, in such pain in the hip area as alleged and not have asked for X-rays and tests from one of the two doctors other than defendant who treated her after her emergency room admission to the hospital. Dr. Feller treated her in the emergency room after the automobile accident on August 25, 1965. His involvement in her treatment lasted only nine days. She did not discover the fractured acetabulum until February 14, 1966 and did not bring suit until February 9,1968.
Public policy is poorly served by this decision which would leave open forever the possibility of suit for real or imagined injuries. Memory might dim, and witnesses be lost to the defense. Records would have to be maintained until the death of the doctor or later. The purpose of the statutes of limitation are to provide some reasonable time within which parties must act. They provide a reasonable balance of equities between those who assert a cause of action and those who must defend themselves. Malpractice actions are provided legislatively and are limited legislatively.
Our extension can be expected to serve Michigan poorly. It is anticipated that this "open season” on doctors and hospitals will further discourage the medical practitioner from coming to or remaining in this state, to the detriment of the public.