Kernan v. Regents of the University of California (Aug. 29, 2022, A162750) __ Cal.App.5th __ [2022 WL 4363156], ordered published Sept. 20, 2022

Medical malpractice claim for a child’s still birth does not accrue when autopsy fails to determine cause of death.

Charlotte Kernan underwent an apparently successful prenatal procedure to rotate her fetus from the breach position. She returned to the hospital the next day because she could not detect fetal movement. Doctors determined she had suffered an intrauterine fetal demise (IUFD) and informed her that its cause is often unknown. At the time of her child’s still birth, no medical literature linked the prenatal procedure with IUFD and the delivery doctor could identify no cause of death. Kernan later ordered an autopsy. For months, Kernan’s delivery doctor failed to respond to her requests to review the autopsy report. She finally consulted a different doctor, who informed her that the hospital had initiated a morbidity and mortality conference regarding her case, but refused to tell her what was said at that conference. This triggered Kernan’s suspicion that medical negligence caused her baby’s death, and she filed suit against the hospital within one year. The hospital moved for summary judgment, arguing the action was time-barred under Code of Civil Procedure section 340.5(2) because it accrued when she was informed about the IUFD and ordered the autopsy. The trial court granted the motion and Kernan appealed.

The Court of Appeal reversed, holding there was a triable issue of fact whether Kernan subjectively and objectively suspected medical malpractice on the date she learned of the IUFD. Because doctors told Kernan that the cause of her IUFD was unknown, she continued seeking care and requested an autopsy. A reasonable trier of fact could conclude she did not, at that juncture, subjectively suspect medical negligence.  Likewise, reasonable minds could differ regarding whether Kernan objectively should have suspected malpractice when her doctors said they did not know the cause of death, there was no known association between her prenatal procedure and IUF, and the autopsy report found no specific cause of death.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, who are partners at the appellate firm Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.