On October 14, 1963, plaintiff filed her complaint in the district court, seeking to recover judgment against defendants for damages resulting from their alleged malpractice. Jurisdiction was based upon diversity of citizenship of thе parties. The court granted defendants’ motions to dismiss plaintiff’s several claims on the ground that, under the governing Idaho law, plaintiff’s right to prosecute them was barred by the statute of limitations. The court did not rule on thе part of the defendant doctors’ motion, which attacked the complaint for failing to state “any fact or facts sufficient to grant the relief prayed for * * Plaintiff has appealed.
The sole questiоn presented is whether suit was commenced within two years after plaintiff’s malpractice claim “accrued,” that being the time prescribed by the applicable Idaho statute of limitations for the commencement of such suits. Idaho Code 5-201, 5-219, Par. 4 (1948); Billings v. Sisters of Mercy of Idaho,
It appears from plaintiff’s complaint that in August, 1951, plaintiff consulted the three defendant doctors concerning a lump in her left breast. Then аfter a series of examinations, including a pathological test, participated in by the defendant hospital, the doctors negligently diagnosed the condition as cancerous and recommended surgеry. That, “thereafter,” they operated on plaintiff, removing the breast and surrounding tissue; treatments continued until December, 1959, when plaintiff was released and the professional relationship ceased. That m thе “fall” of 1962 plaintiff learned for the first time that the lump was benign and had not been a carcinoma, that is, a cancerous tumor. Plaintiff further alleges that she “could not have discovered such fact (i. e., the erroneous and negligent diagnosis) at any earlier date through due and reasonable diligence.”
Plaintiff contends that the statute of limitations does not begin to run on a claim for malpractice until the injured party knоws, or in the exercise of due diligence should know, of the injury and its cause. Under this theory, sometimes referred to as the “discovery” doctrine, if as she alleges, she was not chargeable with knowledge of the defеndants’ negligent diagnosis until sometime during 1962, her right to prosecute the suit was not barred.
Defendants argue that a claim accrues and hence the statute starts to run when the malpractice is committed or, at the latest, when the treatment is terminated and that, in this case, since both events occurred more than two years before the complaint was filed, the suit is barred.
A considerable difference of opinion exists among the various jurisdictions as to when the statute begins to run on a claim for malpractice. Idaho has no statute defining the meaning of the term “accrue” appearing in its statute of limitations and, at the time this сase- was before the court below, the Supreme Court of that State had not had occasion to consider the question.
Shortly after this appeal was taken, however, the Idaho court, in the cаse of Billings v. Sisters of Mercy, supra, aligned itself with those jurisdictions which follow the so-called “discovery doctrine,” and declined to adopt the contention urged upon it by the defendant that such a claim accrues at the time of the negligent act, regardless of the injured party’s notice or lack of notice of that fact. 1
*819
The Idaho court criticized as ill-considered the view that a malpractice claim invariably comes into existence contemporaneously with the wrongful act. Such a rule, said the court, is valid when applied to “ordinary torts” because in those instances the injured party, being aware of the nature and quality of the act, “can use judicial process to secure enforcement of [his] right” and is at fault if he fails to do so. But an undiscovered malpractice claim involves “an entirely different situаtion.” In the latter type of case it is more logical to follow the reasoning “ ‘ * * * [that] the “cause of action” which commences the limitations period should not refer to the “technical” breach оf duty which determines whether the plaintiff has any legal right, but to the existence of a practical remedy.’ ” Billings v. Sisters of Mercy, supra,
It is important to note that the court’s inquiry was directed to the question whether the cause had accrued and the statute had commenced to run, and not to whether the statute had run or was tolled. Nevertheless, the court examined the policy underlying statutes of limitation and found it not inconsistent with adoption of the discovery rule. The court elaborated that “statutes of limitations are statutes of repose, the object of which is to prevent fraudulent and stale claims from springing up after a great lapse of time,” and pointed out that absent those considerations there would be no occasion to apply such statutes. From this the court reasoned that to rigidly apply the principle of statutes of limitation in the situation at bar was inequitable because it would unjustly penalize the injured party who was not guilty of “sitting on his rights” and whose claim was not likely fraudulent.
It is true that Billings does differ in one respect from the case before us; there, the court was dealing with a malpractice claim which rested upon the presence of a sponge alleged to have been carelessly left in plaintiff’s body during a surgical oрeration, while here, the malpractice claim is based upon a negligent diagnosis. It is perhaps also true that the claim in a suit involving a foreign object as in Billings is more apt to be bona fide than one which will undoubtedly depend upon testimony or other indirect evidence for proof. But this factual difference is not controlling. It merely relates to the manner of proof. Grant, that the possibility of fraud is increasеd in the latter instance. But plainly, the possibility does not remotely approach the point where possibility becomes probability and hence a decisive reason for cutting off the claim. The usual рresumption is that a person submits a claim in good faith. To conclude otherwise requires a resort to speculation and reliance upon suspicion. In addition, the burden of establishing a claim rests upon thе plaintiff, and the stale nature of the evidence cuts two ways, militating against him as well as the defendant.
Whether plaintiff’s claim has accrued is a question of law [Chemung Mining Co. v. Hanley,
Factors whiсh might be considered in making such a determination would be illustrated by but not limited to: the nature of the alleged injury, 2 the relative difficulty of proving the wrong as contrasted with rebutting that proof, 3 the availability of witnesses and reсords, the existence of a continuing relationship between doctor and patient, 4 and the inherent difficulty of discovering certain wrongs. 5
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Notes
. Prior to Billings, this court was obligеd to construe the Idaho statute of limitations applicable to malpractice suits. In Summers v. Wallace Hospital, 276 F.2d *819 831 (9th Cir. 1960), we observed that the rule postponing the commencement of the statute until the malpractice has been discovered “has much to recommend it,” but predicted that the Idaho courts would probably not follow it. However, that forecast of the state law must yield to Billings, which constitutes the definitive decision by the highest court of Idaho.
. Relevant here is whether the case involves a foreign object, carrying its independent indicia of negligence.
. As the Oregon court has observed, “[t]he physician аnd' surgeon often are handicapped in their defense, because of the mute appeal that is made to the sympathies of jurors by the pitiable condition of plaintiffs in many malpractice cases.” Wilder v. Haworth,
. For example, see Costa v. Regents of University of California,
. For example, see Agnew v. Larson,