[488]*488McQUADE, Justice.
Appellants’ amended complaint states that on July 10, 1946, Mrs. Billings was operated upon by Dr. O. F. Call in the Sisters of Mercy Hospital in Pocatello. Shortly after the operation Mrs. Billings began to suffer considerable pain. Subsequently she went to Dr. Harmes in American Falls. She continued under his care through 1947, but apparently he was unable to determine the cause of her difficulties.
From 1948 up into 1958 she consulted various physicians in different parts of the United States in which her husband was employed as a construction superintendent. From the early part of 1958 until May, 1961, she consulted a succession of doctors: Dr. Huron of Iron Mountain, Michigan, Dr. Walton of Concord, California, Dr. Staffer of Antioch, California, Dr. Sandlin of Antioch, California, and Dr. Bruno of Pittsburg, California. None of the above physicians successfully diagnosed the nature of Mrs. Billings’ affliction.
Finally, in May, 1961, Mrs. Billings was examined by Dr. Brinton of Oakland, California, who concluded that an exploratory operation was necessary. This operation disclosed a gauze sponge in the area where surgery had been performed by Dr. Call on July 10, 1946. She and her husband brought this suit in May, 1962.
Appellants’ amended complaint states that Mrs. Billings has suffered constant pain, infection, and sexual depression as a result of the negligent leaving of the sponge in her body. It is also alleged that the negligence of the respondents precipitated a surgical menopause causing Mrs. Billings to suffer “hot flashes” requiring extensive hormonal treatment.
Respondents moved to dismiss the amended complaint on two grounds: 1. The complaint failed to state a claim upon which relief could be granted, and 2. The appellants’ claim is barred by the statute of limitations. The trial court did not rule on the first ground, but rendered a judgment of dismissal on the second ground alone. Appellants appeal from the judgment of dismissal. The only question presented on appeal is whether appellants’ claim is barred by the statute of limitations.
The applicable statutes are I.C. § 5-201 and § 5-219, which read as follows:
§ 5-201 “Civil actions can only be commenced within the periods prescribed in this chapter after the cause of action shall have accrued, * * § 5-219 “Within two years: * * *
“4. An action to recover damages for an injury to the person, or for the death of one caused by the wrongful act or neglect of another.”
Based on these two statutes a civil action to recover damages for injury to the person, caused by the wrongful act or neglect of another, can only be commenced [489]*489within two years after the cause of action shall have accrued. Respondents insist that the cause of action accrued on the day that the sponge was left in Mrs. Billings’ body. Appellants contend that the cause of action did not accrue until the sponge was discovered during the exploratory operation. The focal point of this case is to determine when the cause of action accrued.
In this case counsel have cited many cases precisely on the legal point in question. The underlying theme in all of the cases represents a conflict between two basic policies of the law: 1. The policy of discouraging the fostering of stale claims, and 2. The policy of allowing meritorious claimants an opportunity to present their claims.
Mrs. Billings alleges she has been in almost continuous pain since the time of the 1946 operation by Dr. Call and has attempted to find out what caused her so much agony. There is a great deal of difference between her case and the typical plaintiff in this area of cases as she does not appear to have been “sitting on her rights;” and yet, fifteen years passed between the operation and the filing of her complaint. The doctor accused of negligence is dead. (Neither has urged the application of I.C. § 5-327 or § 5-231). His executors, Lloyd and Dean Call, are defendants in this cause.
The earlier cases on this subject were mostly decided in favor of defendants. See Annot., 74 A.L.R. 1317 (1931). Capucci v. Barone, 266 Mass. 578, 165 N.E. 653 (1919), is typical of the earlier cases. As in the instant case, the negligence consisted of leaving a sponge in the surgical wound; the major issue was the statute of limitations. As that court said:
“Upon this branch of the defense the single question is, When did the cause of action accrue? The defendant as a surgeon, on May 11, 1924, impliedly undertook to use care in the operation he was about to perform. Any act of misconduct or negligence on his part in the service undertaken was a breach of his contract, which gave rise to a right of action in contract or tort, and the statutory period began to run at that time, and not when the actual damage results or is ascertained, as the plaintiff contends. The damage sustained by the wrong done is not the cause of action; and the statute is a bar to the original cause of action although the damages may be nominal, and to all the consequential damages resulting from it though such damages may be substantial and not foreseen.”
It was also held to be well established that the bare fact that a plaintiff was unable to discover the cause of his suffering was [490]*490immaterial. In Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), plaintiff, after having been operated upon in 1923, did not discover that a sponge was left in her body until 1929. The court therein stated:
“The plaintiff argues that the right of action did not accrue until the fact that the gauze had not been removed was discovered, and that, consequently, the statutory period of limitation did not begin to run until that time. But the right of action accrued when the negligent act upon which the action is based took place, and not when the consequential damage became known. This principle has been applied in numerous cases wherein the facts were very similar to those in the case before us.”
In those earlier cases there were only three possible exceptions to the rule that the cause of action accrues on the day the foreign object is closed in the wound. The first one, the continuing negligence exception, is usually stated as follows: when a doctor leaves a foreign object in the body of a patient and continues to treat him thereafter, the doctor is said to be not only negligent in his initial action, but also negligent in allowing the object to remain while the patient is still under his care. Sly v. Van Lengen, 120 Misc. 420, 198 N.Y.S. 608 (1923).. The second exception then recognized was called the contract theory. Plaintiffs in this area have successfully avoided the tort statute of limitations by couching their complaints in terms of contract for the longer period of limitation, instead of the tort statute of limitations. In Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), a needle was left in plaintiff’s body. He alleged a breach of contract and successfully avoided the earlier commencement of the limitations period. In the third exception, the fraudulent concealment theory, the statute of limitations is held not to begin to run until the cause of action is discovered or could have been discovered by reasonable diligence on the part of the injured party. This is based upon the rationale that a wrongdoer is not permitted to profit from his fraudulent conduct. At the time of the 74 A.L.R. annotation most courts that recognized this rule placed a high burden of proof on the plaintiff. A plaintiff was required to show some affirmative act of concealment on the part of the defendant. In Tulloch v. Haselo, 218 App.Div. 313, 218 N.Y.S. 139 (1926), plaintiff alleged that the defendant negligently extracted a tooth and let it fall into her throat from whence it entered the lung. She further alleged hp had fraudulently concealed from her the fact that he had let the tooth fall down her throat. The court held that she had not successfully alleged fraud. “ * * * There is nothing alleged from which we may infer any intentional fraudulent misrepresentation of fact as to the [491]*491presence of a tooth in the lung * * In Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928), plaintiff alleged that the defendant negligently left a broken tooth in her gum and that he carelessly and negligently failed to disclose the fact. The court held that the averment was insufficient to make out fraud. It further stated that it could not assume fraud in order to toll the statute of limitations. In Brown v. Grinsted, 212 Mo.App. 533, 252 S.W. 973 (1923), under facts similar to those at hand, the court held that the surgeon must know of the presence of the sponge in plaintiff’s body before he could be held to be guilty of fraud.
Annot., 144 A.L.R. 209 (1943), presents the second A.L.R. effort on this topic. In 1943 it was still stated as a general rule that the cause of action accrues on the day that the foreign object is left in the surgical wound. Two jurisdictions by that time took exception to the rule. In Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908 (1936), the defendant surgeon failed to remove a rubber tube from the wound of an operation. The defense was the statute of limitations. Inter alia the court held, reasoning from a workman’s compensation case, that the plaintiff’s cause of action did not accrue until she could have, through reasonable care, ascertained the cause of her physical distress. In Louisiana, a similar result had been reached two years earlier in Perrin v. Rodriguez, La.App., 153 So. 555 (1934). In the Perrin case, however, the rule was not so clearly expressed as it was in Huysman v. Kirsch, supra.
The contract rule and the continuing negligence rule were still recognized exceptions in 1943, as was the fraudulent concealment rule. In so far as fraudulent concealment is concerned it appeared to be still very much the rule that a plaintiff had to prove some affirmative act of concealment on the part of the defendant. Silvertooth v. Shallenberger, 49 Ga.App. 133, 174 S.E. 365 (1934). There are, however, scattered cases lessening this necessity by putting emphasis on the fiduciary relationship between doctor and patient. Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934), Thompson v. Barnard, (Tex.Civ.App.) 142 S.W.2d 238 (1940). These cases reduced a plaintiff’s burden considerably.
Annot., 80 A.L.R.2d 368 (1961), discusses some of the more recent changes in judicial thinking. In the first place, the contract rule has fallen into virtual disuse. Secondly, the continuing negligence rule has been accepted in a majority of jurisdictions. Thirdly, the discovery rule is no longer limited to California and Louisiana, but has also been accepted in the following jurisdictions : Pennsylvania, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); New Jersey, Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961) ; Oklahoma, Seitz v. Jones, Okla., 370 P.2d 300 (1961); Nebraska, [492]*492Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962) ; Missouri, (by statute) Mo.Rev.Stat. § 516.140, cited in Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943) ; Florida, City of Miami v. Brooks, Fla., 70 So.2d 306 (1954) ; and possibly Texas, McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486 (1952).
The fraudulent concealment exception has been extensively liberalized and is now receiving greater emphasis. As was stated in Note, 32 Ind.L.J. 528 at 536 (1957), “ * * * In early cases a strict adherence to a requirement of affirmative misrepresentations as to the existence of an injury prechided relief in situations where the physician utilized his most effective weapon of concealment: that of mere silence. Only affirmative conduct, it was thought, involved that degree of moral turpitude deemed essential to invocation of the doctrine. Later cases have abandoned the requirement of affirmative conduct, and it is now generally held that the fiduciary relationship between physician and patient imposes a duty of disclosure, breach of which constitutes fraudulent concealment. * * * ”
At least six jurisdictions have accepted the more liberalized version of the fraudulent concealment rule. In Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953), steel wire was left in the plaintiff’s abdomen. The court was asked to rule whether or not plaintiff’s cause of action was barred by the statute of limitations. Despite the fact that no specific facts constituting concealment are stated in the opinion, the court held that fraudulent concealment existed and that plaintiff’s action was not barred. In Baker v. Hendrix, 126 W. Va. 37, 27 S.E.2d 275 (1943), a sponge was left in plaintiff’s abdomen. She made very general allegations of fraud which seemed to establish merely that the defendant had remained silent. The court held that such allegations, if true, were sufficient to toll the statute of limitations. In Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891 (1956), metal was left in plaintiff’s leg. No allegations of fraud were contained in the complaint. Nevertheless, the court refused to bar plaintiff’s cause of action. They held that the statute would be tolled if the plaintiff could prove that defendant’s conduct was fraudulent. In Hinkle v. Hargens, 76 S. D. 520, 81 N.W.2d 888 (1957), a needle was left in plaintiff’s back. The plaintiff did little more than allege silence on the part of the defendant. The court held that if plaintiff could prove this allegation, then the statute of limitations would be tolled. They felt that silence combined with the existing fiduciary relationship was .sufficient to constitute fraud on the part of the defendant. In Arizona and Colorado the liberalization of the fraudulent concealment rule is indicated by the courts’ use of the term “constructive fraud.” In essence, these two jurisdictions have dispensed with [493]*493the requirement of scienter. In Morrison v. Acton, 68 Ariz. 27, 198 P.2d 590 (1948), a dentist left parts of broken equipment in his patient’s jaw. The Arizona court reasoned that, by the exercise of reasonable diligence, the defendant should have known that his equipment had broken off. Good medical practice would have required him to locate and remove this equipment. His failure to remove or at least inform plaintiff, constituted constructive fraud, tolling the statute of limitations. In Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944), surgical gauze was left in plaintiff’s body. The court held that this fact alone was sufficient to constitute constructive fraud. They reasoned that constructive fraud should be applied in any situation where defendant’s negligence is concealed from the plaintiff, no matter how innocently; therefore, plaintiff’s action was held not to be barred by the statute of limitations.
It is obvious that the above mentioned jurisdictions, through liberal use of the fraudulent concealment exception, achieve the same result as do those jurisdictions which accept the discovery rule. In both types of jurisdictions plaintiffs who would formerly have lost their cases on the pleadings are allowed entrance into court to try their actions.
Thus far we have considered the development of four exceptions to the general rule. Appellant asks us to consider yet another, the inherently unknowable harm exception. So far as we can tell, this exception has never been used in the foreign object cases. Its application had been restricted to cases in the workman’s compensation area dealing with industrial disease. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), is typical of the cases in this area. That plaintiff contracted silicosis. He did not bring suit until 1941. Thompson argued that since Urie had been exposed to silica dust since 1910, his cause of action must have accrued long before he instituted the action. The Supreme Court, however, held for the plaintiff. It was their opinion that plaintiff’s cause of action did not accrue until after he had received notice of the invasion of his legal rights. As the Court stated:
“If Urie were held barred from prosecuting this action because he must be said, as a matter of law, to have contracted silicosis prior to November 25, 1938, * * *. It would mean that at some past moment in time, unknown and inherently unknowable even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of his lungs; under this view Urie’s failure to diagnose within the applicable statute of limitations a disease whose symptoms ■ had not yet obtruded on his consciousness would constitute waiver of his right to com[494]*494pensation at the ultimate day of discovery and disability.”
From the 1930’s on, we have seen the courts retreat from an almost uniform position to one which often permits the trial of these actions. This change has been pointed out by a Note in 32 Ind.L.J. 528 (1957) at page 529:
“At a very early period the courts did not share the enthusiasm of the legislature for the statute of limitations ; it was considered an unconscionable defense, strictly construed against the party seeking to bring himself within the statute’s provisions. After the courts came to consider such statutes beneficial, it was generally recognized that inflexible application would result in the sacrifice of legitimate claims along with the spurious, and numerous exceptions were always implied. Limitations applicable to malpractice suits presented a singular exception to the general lenient attitude, however, and it is only since the early ’30s that devices used for removing the statutory bar in other cases have been employed extensively in malpractice actions.”
Appellants also ask us to accept continuing negligence as one of the exceptions to what has been termed the general rule. Annot., 74 A.L.R. 1317 (1931), Annot., 144 A.L.R. 209 (1943), Annot., 80 A.L.R.2d 368 (1961) Appellants terminated their relationship with the defendant doctor shortly after the operation. As this is not an issue, we do not feel justified in ruling whether Idaho would accept such a doctrine. Appellants also ask us to accept an extension to the continuing negligence rule; that the physician’s breach of duty continues until the foreign object is removed, and the period of limitations, therefore, does not begin to run while the foreign object unknowingly remains within the patient’s body. This rule was apparently first announced in Ohio in Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865 (1902). The doctrine has since been rejected by Ohio and other courts and is now acknowledged only in California, Huysman v. Kirsch, supra, and possibly in Pennsylvania. Ayers v. Morgan, supra. In view of the conclusion we reach herein, we need not discuss this doctrine further.
We also find it impossible, in this context, to accept the inherently unknowable harm exception as stated in Urie v. Thompson, supra. Although that case has its similarities to the case at hand, this exception has never been more than briefly mentioned in the medical malpractice foreign object cases. Because of this, and the obvious dissimilarities (the legislative background and the difficulty of ascertaining when the injury occurred) we find it unwise to attempt to use it in the instant case.
[495]*495Use of the contract rule has been attempted in Idaho, Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932). In that case we rejected its use and held that the gist of a malpractice action is negligence and not a breach of the contract of employment. While the contract rule is still used occasionally, Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955), it is generally recognized as being more of a device than a valid rule of law. Note, 64 W.Va.L.Rev. 412 (1962).
Appellants contend that we should accept the liberalized version of the fraudulent concealment rule. This we are unable to do. As was stated in Trimming v. Howard, supra, 52 Idaho at page 416, 16 P.2d at page 662, when plaintiff attempted to invoke the fraud statute of limitations, “ * * * [Fjraud or mistake must be the substantial causes of action: the action must rest solely upon them, and their proof.be primarily essential to any relief. * * * ”
It is clear that we are not precluded from adhering to the discovery doctrine1 because of our decision in Trimming v. Howard, supra. In that case, the defendant, in attempting to treat the plaintiff, broke off a portion of a hypodermic needle in the plaintiff’s back. The defendant told plaintiff of this, and performed an operation to remove the needle. The defendant advised the plaintiff the needle fragment had been removed ; however, four years later the plaintiff learned that the needle fragment was still in his back. Plaintiff presented two causes of action to the court; the first was based upon the unsuccessful operation, and the second was based upon the physician’s failure to disclose that he had not removed the needle fragment. This court, however, in its decision, treated the case as if it were based upon the original act of breaking the needle and not the operation. It is stated at page 416 of the Idaho Reports [at page 416 of 52 Idaho, at page 662 of 16 P.2d] ; “ * * * The original injury, be it caused by carelessness, negligence, misconduct, or whatnot, remains the sole cause of action; * * The question of discovery never entered into this court’s decision as the plaintiff knew of the presence of the needle fragment in his back on the day it was broken off therein. Relying upon representations which had been made by the defendant-physician, Trimming alleged that he believed the needle had been removed by the operation. Furthermore, that plaintiff did not present the discovery doctrine to the [496]*496court as he based his case solely upon the contract for surgei'y and fraudulent concealment. Thus the question of the application of the discovery doctrine is one of first impression in Idaho.
Respondents’ position is illustrated by the case of De Long v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177 (1952). It was held therein that plaintiff’s cause of action accrued at the time of the operation and not upon the discovery of the foreign object. The court reasoned that the plaintiff’s right to sue accrued at the time the foreign object was left in his body. This reasoning has been subjected to much criticism. Indeed, it appears that most of the courts which adhere to the rule as adopted in the De Long case have merely transferred the rule that applies to ordinary torts without noticing the fact that they are dealing with an entirely different situation. Of course, when a plaintiff is run down by an automobile, it is clear that his cause of action will accrue on that date. This is not only because he has a right to sue, but also because he can use judicial process to secure enforcement of that right. Where a surgeon negligently leaves a sponge in the body of a plaintiff, while the plaintiff might possess some potential right to sue, he has no means of developing that right, or acting upon it until he is able to discover the negligence of the surgeon. It is more logical to follow the reasoning stated in Note, Developments in the Law: Statutes of Limitations, 63 Har.L.Rev. 1177 at 1205 (1950), as follows, “ * * * the ‘cause of action’ which commences the limitations period should not refer to the ‘technical’ breach of duty which determines whether the plaintiff has any legal right, but to the existence of a practical remedy.”
Relative to legislative intent, respondents suggest that the legislature clearly intended to preclude adherence to the discovery doctrine by mentioning discovery in the fraud section of the statute of limitations and not mentioning it anywhere else. These are two distinct causes of action and their application is upon entirely different theories and proof.
In one context or another, it has been stated that statutes of limitations are statutes of repose, the object of which is to prevent fraudulent and stale actions from springing up after a great lapse of time. 53 C.J.S. Limitations of Actions, § 1 (1948). These considerations are not present in a foreign object case. First of all, the existence of a sponge, or gauze, or pin in the body of a plaintiff negatives fraud. Secondly, we do not often encounter a plaintiff who is guilty of “sitting on his rights.” If one is unaware that he has any rights, it cannot be said that he is “sitting” on them. As was stated in Fernandi v. Strully, supra, 173 A.2d at 286, a case involving the exact considerations as are present here :
“It must be borne in mind that Mrs.
Fernandi’s claim does not raise questions as to her credibility nor does it [497]*497rest on matters of professional diagnosis, judgment or discretion. It rests on the presence of a foreign object within her abdofnen following an operation performed upon her 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 but, 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. If, as is to be hoped, the resulting jeopardy to defendants produces a greater measure of care in connection with surgical operations, so much the better.”
Respondents assert strenuously that the discovery doctrine is a minority rule. Respondents also argue that only eight, or at the most, nine jurisdictions have accepted this rule. Respondents fail to point out, however, that the discovery doctrine is only one of many exceptions to the so-called “general rule” that they would have us accept. As noted earlier, at least six jurisdictions accept the liberalized version of the fraudulent concealment doctrine. Continuing negligence is accepted by a majority of the jurisdictions. Annot., 80 A.L.R.2d, supra, at 380. The reasoning behind Urie v. Thompson, supra, has created yet another exception in the workman’s compensation area. Even Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963), one of respondents’ strongest cases, recognizes the hardships created by a strict adherence to the “general rule” and suggests that were fraud pleaded the result would be entirely different. Indeed, it appears that most jurisdictions, when faced with the set of facts we have presented herein would, on one theory or another, allow appellants to come into court and present their claims. To apply the label of “general rule” to respondents’ position and minority rule to the discovery doctrine is not only misleading but erroneous. If, however, it is necessary to apply labels, it appears that the so-called “general rule” as stated in A.L.R. is in fact the minority rule.
In reality, the “general rule” has little to recommend it. It is neither the position of a majority of the jurisdictions nor is it firmly based on considerations of reason or justice. 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 [498]*498of 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. Seitz v. Jones, supra.
Respondents have filed a motion to strike from the transcript on appeal certain instruments on the grounds that they are immaterial, superseded and are a nullity. The contested instruments fall into two categories. The first group consists of the original complaint and the instruments filed in favor of, or in opposition to it. These were superseded by the filing of the amended complaint. When an amended complaint is filed, it takes the place of the original, and all subsequent proceedings in the case are based upon the amended pleading. Ryan v. Old Veteran Mining Co., 35 Idaho 637, 207 P. 1076 (1922), Armstrong v. Henderson, 16 Idaho 566, 102 P. 361 (1909).
The second category consists of instruments filed relative to the discovery procedure on production of documents. These instruments are immaterial to the ruling of the trial court and no error is predicated thereon. The only issue involved in the appeal of this case is the action of the trial judge in respect to the amended complaint. Respondents’ motion to strike is therefore granted. Where papers are included in the transcript which are not properly an esential part thereof, the party inserting such papers will be required to pay the additional expense of transcribing the same. Taylor v. McCormick, 8 Idaho 37, 66 P. 805 (1901).
Reversed and remanded for further proceedings.
Costs to appellants, less the transcript costs mentioned herein.
KNUDSON, C. J., and McFADDEN and TAYLOR, JJ., concur.