specially concurring.
[¶ 19] I agree with the result reached by the majority. I write separately because I disagree with the rationale provided by the majority for dismissal of the Jaureguis’ claim against the Hospital.
[¶20] The majority dismisses the claim against the Hospital for failure to comply with the certification requirements of Article 16, § 7 of the Wyoming Constitution. This defense was not asserted by the Hospital. Such defense was waived. See my dissent in Wooster v. Carbon Co. School Dist. No. 1, 2005 WY 47, 109 P.3d 893 (Wyo.2005).
[¶ 21] I would affirm dismissal of the Jau-reguis’ claim against the Hospital because it was untimely. It is undisputed that the Jau-reguis’ claim was not filed within two years of the original surgery performed at the Hospital on January 11,1999. The Jaureguis did not file their Notice of Claim against the Hospital until February 26, 2001. The complaint does not allege facts which, if interpreted in the light most favorable to the Jaureguis, would warrant application of the continuous treatment doctrine to the claim against the Hospital. The Jaureguis’ claim against the Hospital is barred by their failure to comply with the two year time limitation for filing a claim as required by Wyo. Stat. Ann. § 1-39-113.