(dissenting):
In my view the majority opinion results in a retroactive application of the 1971 amendment to the statute of limitations which the legislature did not intend. This results from the overliteral interpretation which the majority have taken of the language from Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964), that “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 [or in the case of Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970), the misdiagnosis].” In my view when the Court stated in those cases that the cause of action does not accrue until the patient learns of the negligence it was just a way of saying that the two year statutory period does not begin to run until the negligence is discovered. I don’t believe the Court meant to say that the patient did not have a cause of action prior to the time of the discovery. The majority opinion seems to recognize this when it states:
“[In Billings and Renner] [t]his Court held that, under the statute prior to amendment, the limitation commenced to run either from the occurrence of the wrongful act, or from discovery of a foreign object or misdiagnosis or from the time when such foreign object or misdiagnosis should have been discovered [whichever was later], (Citations omitted). Thus, in essence, the statute of limitations for a malpractice action, prior to the 1971 amendment, was two years from the wrong or from notice, actual or implied, of the presence of a foreign object or of a misdiagnosis [whichever occurred later].”
To state in this case that the plaintiff appellant’s cause of action did not accrue until she discovered the foreign object left in her body, which was after the amendment in 1971, and therefore conclude that the application of the 1971 amendment to this case is not a retroactive application of the statute, is to miss entirely what the court was doing in Billings and Renner. The Court was not saying in those cases that the patient did not have a cause of action for the negligent conduct at the time that the negligence occurred. What it was saying was that the statute of limitations on that cause of action would not begin to run *645until the patient was aware of the negligence; otherwise, an unjust result would occur.
The majority’s reliance on the recent case of Arnold v. Woolley, 95 Idaho 604, 514 P.2d 599 (1973), seems misplaced. In that case the Court held that a law is retroactive when it operates “. . . upon rights which have been acquired . . .” That is precisely the situation here. At the time that the surgical needle was allegedly left in Mrs. Stoner’s abdomen on March 9, 1971, she then had a right under the existing statute to bring her action within two years after she discovered the needle. That was a right which she had acquired at that time. The subsequent amendment of the statute changed the right which she had acquired on March 9, 1971, and thus clearly comes within the language in Arnold v. Woolley, supra, defining a retroactive statute.
The retroactive effect of the action which the majority has taken would be even more apparent in cases other than foreign object cases. Thus, for example, if the plaintiff appellant’s alleged cause of action had been for misdiagnosis as in the Renner case rather than the leaving of a foreign object in her body, and the misdiagnosis had been discovered on the same date, July 31, 1973, under the rule announced by the majority opinion she would never have had a cause of action. This necessarily follows from the majority’s conclusion that she never had a cause of action until the discovery on July 31, 1973, and then the 1971 amendment is applicable. But, the 1971 amendment to I.C. § 5-219 purports to limit the discovery rule to foreign object and fraudulent concealment cases. It does not extend the discovery rule to misdiagnosis situations like the Renner case did. Thus, if this were a misdiagnosis case, then according to the majority the plaintiff would have had no cause of action under the law at the time of such a March 9, 1971, misdiagnosis, which would have been prior to the effective date of the 1971 amendment, because the cause of action did not accrue until she discovered the misdiagnosis on July 31, 1973. However, when you then apply the 1971 amendment to such a misdiagnosis case, there is no discovery rule and the cause of action accrues at the time of the occurrence on March 9, 1971. Thus, by applying the pre-1971 amendment version of I.C. § 5-219 to determine that plaintiff’s cause of action, if it had been a misdiagnosis claim, accrued on July 31, 1973, and then using the post-1971 law to determine when the statute of limitations begins to run, i. e., in a misdiagnosis case at the time of the occurrence, on March 9, 1971, the effect of the majority opinion results in the statute of limitations running on a misdiagnosis cause of action four months before it accrues. This incongruity results if, as the majority has done, you apply the 1971 amendment to negligent conduct which occurred prior to the 1971 amendment. While it is questionable whether the Billings discovery rule should ever have been extended to misdiagnosis cases as was done in the Renner case, a retroactive application of the amendment to I.C. § 5-219, where none was indicated by the amendment, only serves to further complicate this area of the law.
The legislature has stated, “No part of these compiled laws is retroactive, unless expressly so declared,” I.C. § 73-101, and this Court has said that such an intention must clearly appear. Edwards v. Walker, 95 Idaho 289, 507 P.2d 486 (1973). The majority’s conclusion results in an unjustified retroactive application of the 1971 amendment.
The plaintiff appellant’s complaint should be judged by I.C. § 5-219 as it existed at the time of the alleged negligence of the defendant. Judged in that way, the plaintiff’s complaint was filed within two years of the discovery of the foreign object, and under the ruling of the Billings case the complaint should not have been dismissed.
The plaintiff has not raised, and the majority has not addressed itself to the question of the constitutionality of the 1971 amendment to I.C. § 5-219, which is therefore not at issue here.
DONALDSON, J., concurs.