Court Reinstates Stillborn Malpractice Case: On November 4, 2016, Plaintiff Charlotte Kernan was 39 weeks pregnant when she went to the hospital for an External Cephalic Version (ECV), a procedure to rotate her healthy fetus from a breech position to a head-first position. Doctors recorded the ECV as successful and monitored the fetal heartbeat for 40 minutes following the procedure. There was no indication of any problem and the post-procedure fetal monitoring was considered “reassuring.”
Later that night, following her discharge from the hospital, plaintiff could not detect any fetal movement. The next day, November 5, 2016, plaintiff returned to the hospital because she continued not to detect any fetal movement.
Upon performing an ultrasound, doctors informed plaintiff that there was no fetal heartbeat and that she had suffered an intrauterine fetal demise (IUFD). The doctors told plaintiff and noted in the medical records that they could not determine the etiology of the fetal death. They also noted in plaintiff’s records that nothing in the literature indicated an association between ECV procedures and fetal demise.
The doctors induced labor on November 5, 2016, and after 30 hours of labor, plaintiff delivered a stillborn baby on November 7, 2016. The delivery doctor, Dr. Juan Vargas, told plaintiff that upon initial inspection, the baby, placenta, and cord all appeared healthy and he could not see any indicators as to why plaintiff’s baby died.
At some point, plaintiff decided to order an autopsy, and she worked with the hospital to find a mortuary that would accommodate her needs. Dr. Vargas offered to discuss the autopsy report with plaintiff after it was completed. After some months of delay due to Dr. Vargas not responding to plaintiff’s requests to review the autopsy report with her, plaintiff met with a different doctor, Dr. Kerns, on July 10, 2017, to review the baby’s autopsy results. During that meeting, plaintiff learned that various doctors had reviewed and discussed her case during a morbidity and mortality conference at the hospital, but Dr. Kerns refused to answer plaintiff’s questions about what had been said during the conference. According to plaintiff, she first became subjectively suspicious that medical negligence had caused her baby’s death during her July 10, 2017, meeting with Dr. Kerns.
On November 6, 2017, plaintiff served notice of her intention to commence an action against defendant pursuant to section 364. Within 90 days, on February 2, 2018, she filed her complaint alleging that defendant’s medical negligence caused her fetal demise. Defendant moved for summary judgment, arguing that the action was time-barred under section 340.5’s one-year statute of limitations because the limitations period commenced on November 5, 2016 when plaintiff was informed of the IUFD, inquired into the etiology of the fetal death, and requested an autopsy. The trial court granted defendant’s summary judgment motion on the basis that plaintiff was on inquiry notice as a matter of law when she learned of the fetal death on November 5, 2016, one day after the ECV procedure. Plaintiff appealed.
California Appellate Court Opinion
Section 340.5 provides in relevant part: “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”
Discovery Rule
The discovery rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. The first to occur under these two tests begins the limitations period.
The Court of Appeal of the State of California First Appellate District Division Four held in its published opinion dated September 20, 2022: “The hospital’s records demonstrate that reasonable minds could differ as to whether plaintiff should have suspected negligent performance of the ECV on November 5, 2016, the day she learned she had suffered an IUFD. The November 4, 2016 ECV initially appeared uncomplicated and successful. On November 5, 2016, plaintiff’s doctors did not know the cause of the IUFD, and as of November 6, 2016, they remained unaware of any association between ECV procedures and fetal demise. Given that medical professionals did not suspect wrongdoing, and given that defendant’s autopsy report corroborates plaintiff’s understanding that fetuses sometimes die in utero for unknown reasons, we cannot say that reasonable minds could draw only one conclusion—that plaintiff should have suspected defendant’s wrongdoing on November 5, 2016. In sum, defendant’s evidence does not establish as a matter of law that the limitations period commenced on November 5, 2016.”
Source Kernan v. The Regents of the University of California, A162750.
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