In Kernan v. Regents of the University of California, ordered published September 20, 2022, the First District Court of Appeal, Division 4 reversed summary judgment for the defendant Regents. On November 4, 2016, the plaintiff went to the defendants' hospital for a procedure to rotate her healthy fetus to a head-first position. There was no indication of any problem. Later that night, after discharge, the plaintiff could not feel any fetal movement. The next day, she returned to the hospital. Doctors informed her that day that there was no fetal heartbeat, and she had suffered an interuterine fetal demise. They told the plaintiff they could not determine the etiology of the death, and that nothing in the literature indicated an association between the procedure performed and fetal demise. Per medical records, the plaintiff debated that day whether to have an autopsy performed. Her doctors explained that autopsies are often unsuccessful in establishing the underlying cause of the fetal death, although they can provide peace of mind. The plaintiff denied discussing an autopsy that day. That day, the doctors induced labor. The plaintiff delivered a stillborn baby on November 7, 2016. A doctor told the plaintiff an initial examination of the delivered baby, placenta, and did not show indicators as to why the baby died. At some point after the delivery, the plaintiff ordered an autopsy. A doctor met with the mother on July 10, 2017 to discuss the autopsy results. The doctor told the plaintiff her case had been discussed during a mortality and morbidity conference at the hospital, but the doctor refused to answer the plaintiff's questions about what was said. The plaintiff states that during this meeting, she first suspected medical negligence caused the death. She served notice of intention to sue on November 6, 2017, and filed suit on February 2, 2018. The trial court granted summary judgment on the ground that the lawsuit was filed outside the one-year statute of limitations under Code of Civil Procedure section 340.5.
The appellate court ruled that the date of accrual of the medical malpractice action was an issue of fact. The statute of limitations began running when the plaintiff suspected or should have suspected that her injury was caused by wrongdoing. Based on the notice of intent she served, which extended the statute of limitations 90 days, the plaintiff's action was timely if accrual was on or after November 6, 2016. The defendants contended that the cause of action accrued on November 5, 2016, when the plaintiff learned of the fetus's death and records indicated she discussed an autopsy. The evidence did not establish without dispute that the plaintiff subjectively suspected negligence that day. The records state that the plaintiff was interested in an autopsy but was undecided. The plaintiff herself denied discussing an autopsy that day. Further, in light of the doctors' discussion with the plaintiff, a reasonable trier of fact could conclude the plaintiff discussed an autopsy to seek closure and obtain information, not because she subjectively suspected wrongdoing. Further, the plaintiff remained under the doctors' care until she delivered the fetus on November 7. A fact trier could conclude that the plaintiff had not lost trust in her doctors at that point. On the objective prong, reasonable minds could differ on whether the events of November 5 the plaintiff should have suspected the defendants' wrongdoing on November 5, given that the doctors did not suspect wrongdoing, and the autopsy report corroborates the plaintiff's understanding that fetuses sometimes die in utero for unknown reasons.