Court of Appeal provides guidance on medical malpractice statute of limitations for infant death cases

On Tuesday, the First District Court of Appeal, Division Four, granted the publication request of Kernan v. Regents of the University of California, case number A162750, which was previously filed unpublished on Aug. 29, 2022. The case has important ramifications as to the timeliness of medical malpractice actions under Code of Civil Procedure section 340.5. This is particularly true in cases involving stillborn and newborn death cases as a result of malpractice.

Economically, such cases were near impossible to file due to the MICRA cap. However, given the new changes in MICRA's Civil Code section 3333.2 as to the general damage caps under AB-35 that will go in effect in 2023, such cases may become viable. Understanding the statute of limitations will be critical in determining whether such cases are timely.

The facts of the underlying case are tragic. On Nov. 4, 2016, the plaintiff was 39 weeks pregnant when she presented to Zuckerberg San Francisco General Hospital, where she was treated by Regents doctors and employees. There, she underwent a procedure to rotate her healthy fetus from a breech position to a head-first position. There was no indication of any concerns, and the post-procedure fetal monitoring was considered "reassuring."

The next day, Nov. 5, 2016, plaintiff returned to the hospital because she did not detect any fetal movement. An ultrasound showed that there was no fetal heartbeat and her child had died in utero. The doctors told plaintiff and charted that they could not determine the cause of the fetal death.

The doctors induced labor on Nov. 5, 2016 and, after 30 hours of labor, the plaintiff delivered a stillborn baby girl in the early morning of Nov. 7, 2016. Upon initial inspection, the baby, placenta, and cord all appeared healthy and there were no indicators as to how the child had died.

Despite religious-related concerns, after mulling it over, the plaintiff decided to order an autopsy. Even though the plaintiff asked her doctors several times about the cause of death, the doctors refused to discuss her child's death for several months. Finally, on July 10, 2017, a different OBGYN went over the results, where plaintiff learned that her child's death was the subject of peer review committees. The OBGYN and prior doctors all refused to answer the plaintiff's questions about what was discussed at the conference, presumably under Evidence Code section 1157 grounds. Plaintiff contends that it was on this date that she first became subjectively suspicious of malpractice.

Importantly, even after plaintiff learned of the fetal death on Nov. 5, 2016, she remained under the Regents' care until the July 10, 2017 meeting. She then retained an expert OBGYN, who explained that the aggressive external cephalic version performed on Nov. 4, 2016 caused her child's demise.

It is not surprising that the plaintiff started her action in propria persona as it is extremely difficult to retain a lawyer in child death cases due to the (previous) $250,000 MICRA cap. Even in the most egregious of cases, it is hard to find a medical malpractice lawyer. Just as in this case, defense firms and insurance carriers are known to aggressively and vigorously defend such cases knowing that damages cannot exceed $250,000 and to dissuade such firms from taking similar cases in the future.

In pro per, the plaintiff served her Code of Civil Procedure section 364 letter on Nov. 6, 2017. She did so most likely to "be safe" given that her deceased child was not born until November 7, 2016 and, thus, she was within the one-year MICRA statute under Code of Civil Procedure section 340.5. However, since her child was not born alive, the case was not one for wrongful death. Accordingly, the Regents argued in a Motion for Summary Judgment that the clock started on November 5, 2016.

In other words, the Regents attempted to kick the plaintiff's case out of court for being a single day late.

The trial court agreed with the Regents, relying on the horrifying event and outcome to find that the plaintiff's statute of limitations started on Nov. 5, 2016. As stated at oral argument, the trial court remarked: "So it seemed to me, on this record, that the tragic death of a child in child birth ... was sufficient to put the Plaintiff on inquiry notice as to the cause of that death absent some other reason, such as a preexisting medical condition that the mother may have been aware of prior to the birth."

The Court of Appeal reversed. Under section 340.5, a plaintiff only has a year to file a lawsuit from the time she learns of an injury and its negligent cause. Thus, the clock starts when a plaintiff suspects, or reasonably should suspect, that her injury was caused by wrongdoing.

As this Court aptly explained, under the objective test, a bad result does not automatically put a reasonable person on notice that there was negligence. Indeed, even as of Nov. 7, 2016 following delivery, it was still unclear as to what caused the baby's heart to stop beating. At a minimum, there was a triable issue of fact as to whether a reasonable person would have suspected negligence as of Nov. 5, 2016.

As for the subjective test, this Court noted that there was a factual dispute about whether the plaintiff requested an autopsy at all. Even if she had requested an autopsy, that is not conclusive evidence that she was aware of the negligence on Nov. 5, 2016. Instead, a juror could conclude that Appellant was seeking closure. This Court also noted the continued care that the plaintiff received, which was evidence that the plaintiff continued to trust the Regents.

Bad and tragic results are common in medical malpractice cases. And, as was the case here, grieving parents of a child's death will often wait months before seeking an attorney, sometimes beyond the year from the death. However, as this case shows, the bad result or death does not automatically start the clock on the statute of limitations.