(specially concurring) .
I .concur with the majority’s opinion that in cases of negligent misdiagnosis the Statute of Limitations begins to run. from the time the wrongful act was discovered or the date that the plaintiff, by 'the exercise of reasonable diligence, should have discovered it. The Court has previously adopted this rule as to foreign objects left within the body in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964) and I can see no rational basis for a distinction between one kind of malpractice and the other. It is manifestly inconsistent and unfair to bar a negligently injured party’s cause of action before he *843even had an opportunity to discover that it existed. This is as true where it consists of negligent misdiagnosis or treatment as when a foreign object is left within the body. The application of the “discovery rule” to all medical malpractice cases seems to be the modern trend. The courts in both Oregon and Washington have recently extended the “discovery rule” to cases of misdiagnosis. See Samuelson v. Freeman, 75 Wash.2d 894, 454 P.2d 406 (1969) and Frohs v. Greene, 452 P.2d 564 (Or.1969). However, because of the possible danger of fraudulent and stale claims in cases of this nature, I feel that the plaintiff should be required to affirmatively allege and prove facts as to when and under what circumstances the dscovery was made; facts to show that the plaintiff is not at fault for not having made an earlier discovery; and furthermore, prove that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry. Hurlimann v. Bank of America Nat. Trust and Sav. Ass’n, 141 Cal.App.2d 801, 297 P.2d 682 (1956) ; Wohlgemuth v. Meyer, 139 Cal.App.2d 326, 293 P.2d 816 (1956); Myers v. Stevenson, 125 Cal.App.2d 399, 270 P.2d 885 (1954). In this case the plaintiffs alleged that immediately after the operation and for a period of more than three years Zella Renner continued to suffer pain and the added embarrassment and discomfort of not being able to control her bodily functions. Thus in the instant case the facts alleged are insufficient to meet these requirements and in fact tend to affirmatively show that the appellant had knowledge of the injury. However the issue as to when the plaintiff discovered the wrongful act or should have discovered it by the exercise of reasonable care is for the trier of the facts. Costa v. Regents of University of California, 116 Cal.App.2d 445, 254 P.2d 85 (1953); Hemingway v. Waxler, 128 Cal.App.2d 68, 274 P.2d 699 (1954) ; Bowers v. Olch, 120 Cal. App.2d 108, 260 P.2d 997 (1953). I, therefore, feel that the case should be reversed with leave for appellants to amend their complaint to meet these requirements if they can do so. In the event the case comes to trial, it is emphatically pointed out that the plaintiff in this type of lawsuit has the burden of proving:
(1) that the doctor’s diagnosis was incorrect ;
(2) that the error was not a failure of judgment but negligence as judged by the standard of care required by a physician at the time of the injury;
(3) the causal relationship between the negligent act and the plaintiff’s injury;
(4) when and under what circumstances the discovery was made;
(5) that he was not at fault for not making an earlier discovery;
(6) that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry.