SAN FRANCISCO (Legal Newsline) - A hospital that argued a woman was a day late in suing over the death of her fetus lost on appeal, as a California court ruled a judge or jury might decide she didn’t suspect medical malpractice until later.
Charlotte Kernan sued the University of California after she delivered a stillborn baby at Zuckerberg San Francisco General Hospital on Nov. 7, 2016. Doctors had performed an External Cephalic Version (ECV) procedure on the 39-week-old fetus on Nov. 4 to rotate it away from a breech birth position. The procedure appeared to be successful, but after she was discharged from the hospital Kernan noticed there was no fetal movement and the following day an ultrasound revealed the baby was dead.
Kernan delivered the stillborn child after 30 hours of labor on Nov. 7. On Nov. 6, 2017 she served notice of her plans to sue for malpractice. The hospital moved to dismiss, citing California’s statute of limitations, which starts to run when a patient knows or should have known an injury had occurred. The hospital argued Kernan suspected wrongdoing on Nov. 5, because she asked doctors why the fetus died and whether she could get an autopsy.
A trial court agreed and dismissed the case. But California’s First Appellate District, Division Four, reversed in a decision published Sept. 20. The law requires defendants to prove the plaintiff had a subjective belief wrongdoing occurred, and that a reasonable observer would agree, the appeals court ruled. In this case, a finder of fact could disagree with the hospital over when Kernan first suspected malpractice, the court said.
While the medical notes state Kernan was “intersted [sic] in an autopsy and any additional blood tests that might elucide [sic] the underlying cause” of the fetal death, she was still undecided about whether to order an autopsy because it might delay her child’s Muslim burial, the court said. Kernan later denied even discussing an autopsy on Nov. 5, the court went on.
“Plaintiff stated that on the day she learned of her baby’s death, she was in no shape to talk to anyone about anything, nor was she thinking far enough ahead to order an autopsy,” the court wrote. “Whether plaintiff in fact ordered an autopsy on November 5, 2016, was therefore very much in dispute.”
Finally, doctors told her that day the cause of death was unknown. So even assuming she asked for an autopsy on Nov. 5, reasonable jurors might conclude she did so “to seek closure, not because she subjectively suspected defendant’s wrongdoing,” the court concluded.