(dissenting)-
The law is firmly established that the statute of limitations begins to run from the time that the cause of action has accrued. See 51 Am.Jur.2d Limitations of Actions, § 107, p. 679. See also Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932). The key question, then, is when has a cause of action accrued for the purpose of applying the statute of limitations ? The general rule, which is supported by the weight of authority, is that the cause of action accrues at the time of the commission of the negligence which is the basis for the actions. It is stated in 1 Am.Jur. 2d Actions, § 88, p. 617, that
“ * * * A cause of action accrues when the person in whose favor it arises is first entitled to institute a judicial proceeding for the enforcement of his rights. In the case of a tort, the cause of action accrues when the wrongful act is committed; * * *.
Generally, it may be said that a cause of action accrues at the moment of a wrong, default, or delict by the defendant and the injury of the plaintiff, although the actual damage resulting *844therefrom may not be discovered until some time afterward, if the injury however slight, is complete at the time of the act.”
This is the rule adopted by this court in Pridgeon v. Greathouse, 1 Idaho 359 (1871). In that case this court stated that the statute of limitations begins to run from the time that the plaintiff might first have commenced his action. In the present case the alleged negligent acts took place on March 21, 1961, and it is from this date that the two year statute of limitations began to run.
In Trimming v. Howard, supra, which also was a medical malpractice case, this court considered issues somewhat similar to those here involved. In that case, while a physician was injecting serum into the' spinal column, the hypodermic needle broke off and the needle remained in the plaintiff's back. Later surgery was performed to remove the needle, and the plaintiff was lead to believe- it had been removed when in fact it had not. Following discovery of the needle, the plaintiff instituted the action for damages from the physician. This court held that the cause of action arose at the time the broken needle was left in the patient’s back and that the action was therefore barred by the statute of limitations. Trimming v. Howard, supra, was discussed at length in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964), but was not overruled.
Appellants rely heavily upon this court’s decision in Billings v. Sisters of Mercy of Idaho, supra, which adopted the so-called “discovery rule” in cases in which a foreign object is left in a patient’s body ditring surgery. It is my conclusion that that case, however, is an exception to the general rule that the statute of limitations commences to run from the time of the occurrence of the negligence. This court in Billings v. Sisters of Mercy of Idaho limited its decision to foreign object cases, stating:
“We will, therefore, adhere to the following rule: where a foreign object is negligently left in a patient’s body-by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.” 86 Idaho at 497, 498, 389 P.2d at 232.
This court’s decision in Billings v. Sisters of Mercy of Idaho, supra, was considered by the Ninth Circuit Court of Appeals in Owens v. White, 380 F.2d 310 (9th Cir. 1967), which, on the basis of the language of Billings, reached the same conclusion that I reach here that the rationale of that case is limited to foreign object cases.
“Had the Idaho Supreme Court not harbored the intent to limit sharply the application of the discovery rule in malpractice cases, it would have been unnecessary for it to emphasize that the purpose of statutes of limitations ‘is to prevent fraudulent and stale actions from springing up after a great lapse of time * * *.’ It employed language which must be significant and clearly implies a limitation, namely, ‘These considerations are not present in a foreign object case.’ 389 P.2d at 231 (Emphasis supplied). Moreover, as we have seen, the Idaho court chose, in supporting its decision in BiUings, to quote language from a New Jersey opinion, wherein the court, concerned with a situation involving surgical malpractice of the ‘foreign object’ variety, carefully distinguished such case from one which would ‘raise questions as to * * * credibility [or] rest on matters of professional diagnosis, judgment, or discretion. * * * ’ 173 A.2d at 286. (Emphasis supplied.) The New Jersey court limited its holding expressly as- the Idaho court is believed by us to have done impliedly, to ‘this [foreign object] ■highly confined type of case.’ Ibid” 380 F.2d at 315.
*845There are sound reasons for distinguishing between foreign object cases and cases resting upon allegations of misdiagnosis. Some of these reasons were stated in Billings v. Sisters of Mercy, supra, in a quotation from Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961):
“It must be borne in mind that Mrs. Fernandi’s claim does not raise questions as to her credibility nor does it rest on matters of professional diagnosis, judgment or discretion. It rests on the presence of a foreign object within her abdomen following an operation performed upon her body by the defendant-doctors. Here the lapse of time does not entail the danger of a false or frivolous claim nor the danger of a speculative or uncertain claim. The circumstances do not permit the suggestion that Mrs. Fernandi may have knowingly slept on her rights hut, on the contrary, establish that the cause of action was unknown and unknowable to her until shortly before she instituted suit. Justice cries out that she fairly be afforded a day in court and it appears evident to us that this may be done, at least in this highly confined type of case, without any undue impairment of the, two-year limitation or the considerations of repose which underlie it.” 173 A.2d at 286. (Emphasis supplied.)
I.C. § 5-218(4) specifically states that in actions for relief on the ground of fraud or mistake, “The cause of action * * * [is] not to he deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” It is clear, then, that the legislature has in some instances chosen to adopt the discovery rule. Applying the well established rule of statutory construction, ex-pressio unius est exclusio alterius (the expression of one thing is the exclusion of another), it should he equally clear that the legislature did not intend to apply the discovery rule to the statute of limitations governing personal injuries. Had it so intended, it would have clearly said so as it did in I.C. § 5-218(4). See dissent in Billings v. Sisters of Mercy of Idaho, supra; Summers v. Wallace Hospital, 276 F.2d 831 (9th Cir. 1960) ; Roybal v. White, 72 N.M. 285, 383 P.2d 250 (N.M.1963); Peppas v. Marshall & Ilsley Bank, 2 Wis. 2d 144, 86 N.W.2d 27 (1957).
Moreover, whether the discovery rule should he applied to the statute of limitations governing personal injuries is a question of policy more appropriately within the competence of the legislature. As was stated in the dissent in Billings v. Sisters of Mercy of Idaho, supra,
“As heretofore pointed out, the legislature at sundry times has amended sections of the statute of limitations, and has left others unchanged from the time of original adoption in 1881. The legislature, however, has not as yet' imposed a discovery date as the deemed date of accrual of a cause of action grounded upon personal injury. Such represents the continuing policy on the part of the legislature which policy should not he altered by judicial fiat simply because in the particulars under consideration, it may be considered harsh in its application to malpractice cases.
* * * The judiciary could not enter into the field of determining policy reserved to the legislative branch of government. Oneida County Fair Board v. Smylie, 86 Idaho 341, 386 P.2d 374 (1963).” 86 Idaho at 505, 506, 389 P.2d at 238.
Justice Donaldson in his special concurring opinion cites and relies on Samuelson v. Freeman, 454 P.2d 406 (Wash.1969), and Frohs v. Greene, 452 P.2d 564 (Or. 1969), as authority for the position he takes.
The Washington Supreme Court in Samuelson v. Freeman, supra, (decided in May, 1969) cited the case of Ruth v. Dight, 453 P.2d 631 (April 10, 1969), for the proposition that in a “foreign object” type of case the statute of limitations did not commence to run until such time as discovery of the foreign object was made or reasonably should have been made. In Samuelson v. *846Freeman, supra, the Washington court extended the so-called discovery rule in a novel fashion to medical malpractice cases of diagnosis and treatment, holding, in effect, that if malpractice is claimed during a continuous and substantially uninterrupted course of treatment the statute of limitations does not commence to run at least until the treatment of the particular illness or condition has terminated. The court also held, however, that the statute of limitations ordinarily begins to run either from the occurrence of the negligent act or omission if the injuries therefrom are manifest, or if not apparent, from the time the patient could or should have discovered the injury.
In the instant case there are no allegations of fact that would bring it within the scope of the ruling in the Washington case of Samuelson v. Freeman, supra.
As concerns the Oregon case, Frohs v. Greene, supra, that court dealt with the issue (as in the instant case) of whether the “discovery rule” as promulgated in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), a foreign objects case, should be extended to a medical malpractice case of diagnosis and treatment. In Frohs v. Greene, supra, the court applied the discovery rule. It is of interest to note that subsequent to the decision in Berry v. Branner, supra, decided December 28, 1966, the legislature in Oregon amended their statute of limitations to encompass the “discovery rule” as applied to foreign object cases. Ch. 406 Oregon Laws 1967, p. 823. It is also noteworthy that in Frohs v. Greene, supra, decided April 2, 1969, the court took note of the amendment of the Oregon statute of limitations, and further that in 1969 the Oregon legislature again amended their statute of limitations to apply the discovery rule to “An action to recover damages for injuries to the person arising from any medical, surgical or mental treatment, omission or operation.” Ch. 642 Oregon Laws 1969, p. 1586.
It is my firm conviction that the so-called “discovery rule” should not be employed to toll the running of the statute of limitations, I. C. § 5-218(4), which the legislature enacted, as is being done in the majority opinion in this case. There is nothing to be gained by belaboring the reader with the purposes for the enactment of statutes of limitation and the objects to be resolved by such legislative enactments. Suffice it to say that every time a doctor makes a diagnosis for his patient, his contingent exposure to a claim of malpractice for misdiagnosis or improper diagnosis is unlimited as to time.
The same “discovery rule” logically could be applied to the professional decisions-made by engineers, architects, dentists, attorneys and other professions. Presently, at least insofar as attorneys are concerned, it is generally held that in the absence of fraudulent concealment, the statute of limitations begins to run at the time of the neglect or misconduct and not from the time when the wrong is discovered or the consequential damages are felt. Annot: 118 A.L.R. 215.
Any expansion of liability should properly be reserved for legislative action, not accomplished by judicial fiat. See dissent in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 505, 389 P.2d 224. See also Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969).
It is my conclusion that the cause of action accrued at the time of the alleged negligent act, i. e., 1961. The complaint not being filed until 1966, it is my opinion that the action is barred by the provisions of I.C. § 5-218(4), and that the judgment of the district court dismissing the action should be affirmed.
SPEAR, J., concurs in this dissent.