dissenting. Murray v. Allen, 103 Vt. 373, 154 A. 678, was decided in 1931. Its unjust and incompassionate holding was that a plaintiff injured by the negligence of his physician must go remediless if he is unable to detect his malady within three years of the physician’s tortious act. That holding was then and still is unsupported by rhyme, reason or logic.
Forty-eight years later this Court in Capron v. Romeyn, 137 Vt. 553, 409 A.2d 565 (1979), had the opportunity to overrule Murray v. Allen. Unfortunately, it reaffirmed that regrettable holding in blind allegiance to stare decisis. Usually, it is the Court which tries to goad the legislature into action, or is accused of judicially legislating. When Capron v. Romeyn was decided, however, the legislature had already outstripped the court’s holding in Murray v. Allen. Effective July 1, 1976, 12 V.S.A. § 512(4) was amended to adopt the discovery rule. That rule makes a cause of action for medical *254malpractice accrue upon the date the victim discovers his injury, not on the date that the physician inflicts it.
1 V.S.A. § 214(b) prohibits us only from retroactively applying 12 V.S.A. § 512(4), effective July 1, 1976, to the plaintiff’s discovery of her injury in March 1976. There is nothing in justice or in equity, however, to prevent us from now overruling Murray v. Allen. That outmoded decision was for all intents and purposes killed by legislative action in 1976. Now all that is left for us to do is give it a decent burial.
I dissent, and join with Justice Billings in voting to overrule Murray v. Allen and reverse and remand this case to give the parties their chance to fairly litigate the merits of plaintiffs’ claim.