Government Liability Update

Officer's Unreasonable Mistake as to Whether Arrestee Requires Medical Care Not Subject to Qualified Immunity

In D'Braunstein v. California Highway Patrol, published March 12, 2025, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment for the defendant officer.  The officer arrived at the scene of a single-vehicle auto accident, in which the plaintiff crashed his car into a concrete wall along a freeway onramp.  The plaintiff was standing next to the car.  The plaintiff displayed symptoms of disorientation and poor balance.  He did not smell of alcohol, and passed a breathalyzer test, but could not perform field sobriety tests.  The officer decided the plaintiff was under the influence of drugs.  She arrested the plaintiff and took him to jail.  The jail nurse denied the plaintiff admission to the jail and directed he be taken to a hospital. The officer drove the plaintiff to a hospital, without using her siren or flashing lights.  The plaintiff arrived at the hospital over three and a half hours after the officer first encountered him.  The plaintiff was diagnosed with a stroke, and suffered incapacitating brain damage.  There was conflicting evidence of whether earlier treatment would have mitigated his stroke symptoms.  The plaintiff sued the officer, alleging deprivation of medical care.  The district court granted summary judgment, finding that the constitutional violation was not clearly established and the officer was entitled to qualified immunity.

The panel majority disagreed.  Under both the 4th Amendment, which applies to arrests, and the 14th Amendment, which applies to pretrial detainees, the question is whether the officer's provision or deprivation of medical care was objectively unreasonable.  Here, construing the facts in the light most favorable to the plaintiff, a reasonable jury could find that the officer's failure to summon prompt medical treatment for the plaintiff was objectively unreasonable, and that the officer acted with reckless disregard for the plaintiff's safety, given the serious nature of the accident and the plaintiff's symptoms.  The officer's subjective belief that the suspect was on drugs does not change matters, considering the plaintiff had emerged from a violent car crash and was exhibiting physical and cognitive abnormalities.  The majority further ruled that it is clearly established that officers must seek to provide an injured detainee or arrestee with objectively reasonable medical care in the face of medical necessity, and may not act with objective deliberate indifference to such a medical need.  Case law further established this duty is not limited to situations where the officer's conduct causes the injury warranting medical attention.  The majority rejected the argument that there was no case law that would have put the officer on notice in the specific circumstances she encountered of the duty to summon prompt medical care.  Although an officer may be entitled to qualified immunity for a reasonable mistake, if the law is otherwise clearly established, an officer is not entitled to qualified immunity for a mistake of fact or judgment that is itself unreasonable.  Although specificity is required to clearly establish the law, a past case dealing with strokes or auto accident victims is not necessary.

A dissenting judge opined that the officer was entitled to qualified immunity, because the existing law did not place beyond debate that the officer, who was not a medical professional, was violating the plaintiff's constitutional rights by perceiving he was under the influence of drugs rather than injured.

Public Entity Cannot Be Sued for Retaliation under California False Claims Act, but May Be Sued under Statute for Retaliation by a Health Care Facility

In Ryan v. County, published February 28, 2025, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a judgment after jury trial.  A surgeon on the staff of a county hospital was terminated after his medical staff privileges lapsed and were not renewed.  He alleged he was terminated for whistle-blowing about unnecessary surgeries.  He sued under causes of action that included Government Code section 12653, the whistleblower-protection provision of the California False Claims Act; and Health & Safety Code Section 1278.5, which bars heath facilities from retaliating against members of the medical staff for filing complaints or participating in investigations.  The trial court sustained a demurrer without leave to amend as to the section 1278.5 cause of action, but allowed the section 12653 cause of action to go to trial, and declined to grant judgment notwithstanding the verdict as to that cause of action.

The appellate court reversed both rulings.  Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164 held that California False Claims Act suits cannot be brought against public entities, but did not address whether the anti-retaliation provision in the act, Government Code section 12653, applied to public entity defendants.  The court concluded that under section 12653's language, a retaliation claim is not available where a viable false claim case cannot be brought against the defendant.  The retaliation cause of action therefore does not lie against a public entity defendant.  Further, Wells established that the punitive damages provisions of the Act should not be brought against public entities.  As for Health & Safety Code Section 1278.5, the court interpreted the language of the statute--which discusses state facilities as well as county and city facilities--to show a legislative intent that the action could be brought against public entities.

Paramedics Did Not Owe Duty to Perform Adequate Medical Examination of Person Who Refused Treatment

In Murphy v. City of Petaluma, published November 25, 2024, the First District Court of Appeal, Division 1 affirmed summary judgment in favor of the defendant city and two of its paramedics.  The plaintiff was involved in a head-on collision.  The defendant paramedics responded to the scene.  They asked the plaintiff questions to determine her involvement in the collision and whether she was hurt or needed medical assistance.  She stated she was not hurt and did not want or need medical assistance.   The paramedics did not observe any signs of injury, any signs the plaintiff was in pain, or any signs of cognitive impairment. One of the paramedics explained to the plaintiff that it was possible she had suffered an injury of which she was unaware, that the injury could manifest later, and that the injury could be life-threatening.  He recommended that she accept transportation to a hospital where she could be examined as a precautionary measure.  The plaintiff responded she was aware of the risks, but again declined transportation to the hospital.  The paramedic advised the plaintiff of the potential signs of serious injury of which she should be aware.  After attending to the other driver, the paramedic returned to the plaintiff to ask if she had developed a headache or required medical assistance.  She again refused medical assistance, and still did not display objective signs of injury or cognitive impairment.  Before the paramedics left, one of the paramedics again obtained confirmation from the plaintiff that she did not want or need medical assistance.  Based on their observation of the plaintiff, the paramedics concluded she was alert and oriented, had capacity, and had expressly exercised her right to refuse medical treatment.  After leaving the scene, the plaintiff suffered a stroke in her sleep, due to a hypertensive crisis caused by the collision.  The plaintiff sued the city and paramedics, alleging the paramedics were grossly negligent in their medical examination, evaluation, and treatment of her, including failing to take her blood pressure and failing to transport her to a medical facility.  The trial court granted the defendants' motion for summary judgment, concluding that no medical care was initiated and that the paramedics did not take any action that created a duty to perform a full assessment of the plaintiff's medical condition.

The appellate court agreed.  The plaintiff contended the paramedics owed her a duty of care to provide medical assistance in accordance with Health and Safety Code section 1799.106 under the negligent undertaking doctrine.  Emergency rescue personnel, like other persons, have no general duty to protect others from the conduct of third parties.  The negligent undertaking rule is an exception.  Where one undertakes to aid another, the person is under a duty to exercise due care in acting, and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.  The plaintiff contended that by virtue of the paramedics interactions with her at the scene they assumed a duty to provide her with adequate medical care.  She maintained her refusal to of medical care was irrelevant to the duty issue.  She did not claim that the paramedics were negligent in their assessment that she had the cognitive capacity to exercise her right to refuse medical assistance.  The court rejected the plaintiff's argument. As with other first responders, the scope of the duty the paramedics assumed must be measured by the particular level of service they provided.  That level of service was dictated by the plaintiff's repeated refusal of medical assistance and transport.  After she made these statements, the paramedics did not undertake a medical examination.  Therefore, they did not assume a duty to conduct such an examination meeting the applicable standard of care.  Further, there is no evidence that the paramedics' conduct increased the harm or risk of harm inflicted by the third party.  The paramedics left the plaintiff in exactly the position she occupied before they arrived.  They therefore did not have a duty to render medical assistance to the plaintiff in accordance with the standard of care.

Because Law Did Not Clearly Establish That Prison Policy on Prioritizing Medication of Hepatitis C Patients Was Unconstitutional, State Official Entitled to Qualified Immunity

In Carley v. Aranas, the 9th Circuit Court of Appeals reversed a district court order denying a motion for summary judgment based on qualified immunity.  The plaintiff was an inmate in state prison.  She was diagnosed with Hepatitis C in 2013.  In 2013, the FDA began approving direct acting antivirals as a new treatment that cured Hep C in 95 to 995 of cases.  The drugs were often costly, and were not recommended for all Hep C patients until 2015.  The price of the drugs gradually lowered.  2014 National Hep C policy recommended immediate treatment be prioritized for the most advanced patients; in 2015 the policy changed to recommending treatment for all chronic Hep C patients except those with short life expectancies.  The policy recognized that state prisons and jails may not have the financial leverage to obtain cost effective treatment.  The plaintiff's expert contended this policy set the standard of care for Hep C treatment.  Federal prison guidelines between 2014 and 2018 recommended prioritizing patients according to how advanced the disease was.  The state department of correction guidelines at issue reflected the prioritization guidelines of the federal prison guidelines.  The plaintiff's condition from 2013 and 2018 was never advanced enough to qualify for DAA treatment under the department of correction guidelines, but met the prioritization guidelines of the national policy.  After exhausting grievances, the plaintiff sued the former medical director of the state department of corrections, who signed off on the department of corrections policy, as well as other prison officials, alleging deliberate indifference in her treatment in violation of the 8th Amendment.  The district court granted summary judgment to all defendants  except the former director.  The court concluded that the former director had personally participated in the alleged violation, and there was an issue of fact on whether he was deliberately indifferent to the plaintiff's serious medical needs.

The 9th Circuit ruled that the district court had erred in failing to address the second prong of qualified immunity:  Whether the alleged misconduct had violated clearly-established law.  Even assuming that the defendant violated the plaintiff's constitutional rights, he was entitled to qualified immunity unless the plaintiff could demonstrate that the defendant knew or should have known that he was violating the plaintiff's 8th Amendment rights.  The constitutional question must be beyond debate.  Case law establishing the general rule that prison officials are deliberately indifferent when they know of and disregard an excessive risk to inmate health is too broad to put officials on fair notice of their constitutional obligations.  Similarly, case law establishing that prison doctors are deliberately indifferent when they fail to provide or delay providing necessary medical treatment is too broad to establish a particular constitutional violation.  The question was whether a prison medical director between August 2013 and May 2018 would have been on notice that the department of corrections Hep C policy was
unconstitutional at the time. The appropriate inquiry is not whether evolving medical standards prescribed a course of best treatment and practice, but whether the medical standard was so well established that the failure to prescribe the course of treatment could only be considered deliberate indifference within the meaning of the 8th Amendment. The courts addressing the 8th Amendment standard for treating Hep C positive inmates had reached different conclusions.  The standard therefore could not be beyond debate.  The former director was therefore entitled to qualified immunity.

Police Officers Entitled to Qualified Immunity for Following Paramedic's Advice in Restraining Suspect; Paramedic Entitled to Qualified Immunity Due to Unclear Law

In Perez v. City of Fresno, published April 15, 2024, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for the defendant city, police officers, and paramedic.  The sheriff’s office received a call of a man acting erratically, including sprinting through the street.  City officers encountered the plaintiffs’ decedent before deputies could respond. The defendant officers encountered the plaintiffs’ decedent acting erratically, and determined he was under the influence of a controlled substance.  According to the officers, to prevent him from darting into traffic or charging the officers, they seated him on the curb and placed him in handcuffs.  The dispatched deputies found the suspect in handcuffs and surrounded by city officers.  A city officer called emergency medical services to facilitate an involuntary psychiatric detention of the suspect.  While awaiting an ambulance, the decedent stood up and refused to comply with officers’ instructions.  Several officers took the suspect to the ground to prevent him from running into traffic.  The suspect’s face repeatedly hit the ground. An officer lifted the suspect’s head off the ground with a towel, while another confirmed the suspect could breathe.  While the suspect was lying on his stomach, he kicked.  The officers restrained the suspect’s legs, then removed the restraint 30-60 seconds later when the ambulance arrived.  The EMS paramedics brought out a backboard.  The officers removed the towel and assisted the paramedics in applying the backboard.  The suspect yelled he could not breathe.  A defendant paramedic nevertheless told one of the officers to sit on the backboard.  The officer sat on the backboard for 90 seconds while other officers applied pressure.  After the seated officer stood up, the paramedics continued securing the suspect to the backboard then turned him over.  Once the suspect was on his back, the paramedics discovered he did not have a pulse.  The suspect passed away.  The coroner attributed the death to compression asphyxia during restraint with methamphetamine toxicity as a significant contributor.  The suspect’s family sued the officers and paramedic under 42 U.S.C. section 1983 for violations of the 4th and 14th Amendments, and the city and county for Monell liability based on failure to train.  The district court granted the defendants summary judgment, finding the individuals entitled to qualified immunity, and finding insufficient evidence of deliberate indifference in training.

The panel ruled that the officer defendants were entitled to qualified immunity.  The only use of force the plaintiffs challenged was that taking place after the paramedics arrived, including the paramedics’ determination that the suspect needed to be placed on a backboard to facilitate transport to the hospital, and the paramedic instructing the officers to assist in securing the suspect to the backboard by sitting on him while he was prone.  The officers testified that they defer to medical personnel that respond to an emergency scene on medically-related matters.  Existing case law holding that pressing down an erratically-behaving suspect who protests he cannot breathe does not address officers acting at the direction of medical personnel.  Existing law did not clearly establish the officers were required to second guess the paramedics on medical care.  The majority also rejected the argument that the officers’ constitutional violation was obvious.  It was not obvious that applying the backboard in this manner, as directed by a medical professional trained to respond in emergency situations, would violate the Constitution. The court also rejected the argument that the officers were not entitled to qualified immunity because they departed from their training.  Case law does not establish that any violation of police policy or guidance is, in and of itself, sufficient to deny qualified immunity.  Official training and guidance can influence the qualified-immunity analysis, but they are not determinative.  Even if the officers contravened their training, that would not defeat qualified immunity in this case.  The paramedic was also entitled to qualified immunity.  The law did not clearly establish at the time that a paramedic a paramedic restraining a person to secure the person for medical transport could be held liable for a constitutional violation under either the 4th or 14th Amendment.  There is no Supreme Court or 9th Circuit precedent establishing constitutional liability under similar circumstances.  Authority from other circuits looks to whether paramedics are acting in a law-enforcement capacity (which can give rise to a section 1983 claim) or a medical capacity (which is analyzed for medical malpractice).  There was no evidence from which a reasonable jury could conclude that the paramedic was acting in a law-enforcement capacity during his interaction with the suspect.  The evidence was that the suspect was being restrained so that he could be transported for treatment, not so that he could be arrested or punished.  Due to the lack of precedent imposing constitutional tort liability on a paramedic in this situation, the paramedic is entitled to qualified immunity.  Finally, absent a pattern of excessive-force incidents by untrained officers that resulted in the outcome here, the plaintiffs could not establish Monell liability for failure to train.  Further, there was evidence the agencies at issue maintained policies to prevent restraint and positional asphyxia.  While two officers testified they were not trained on prone-restraint asphyxia, the possible inadequate training of two officers is insufficient to support a Monell claim.

One judge concurred in the grant of qualified immunity to the paramedic, and to the affirmance of summary judgment on Monell liability, but disagreed that the officers were entitled to qualified immunity.  The judge opined that federal case law, departmental guidance, and common sense gave officers fair warning that applying continuous force to the back of a prone person who claims he cannot breathe is constitutionally excessive.

School District Did Not Violate Confidentiality of Medical Information Act by Requiring Employee to Provide Verification of COVID-19 Vaccination Status or Undergo Weekly Testing

In Rossi v. Sequoia Union Elementary School District, published August 25, 2023, the Fifth Appellate District affirmed dismissal after demurrer was sustained in this case and in two other related appeals arising out of similar circumstances.  During the State of Emergency declared due to COVID-19, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID-19 vaccination status of all school workers.  The plaintiff was providing in-person classroom assistance when the order issued.  The plaintiff repeatedly refused to disclose her vaccination status or undergo weekly testing.  After attempts to accommodate her with at-home employment, the district eventually terminated her employment.  The plaintiff sued the school district under the Confidentiality of Medical Information Act, Civil Code section 56 et seq.  She alleged causes of action for discrimination due to the plaintiff's refusal to authorize a release of her medical information (Civil Code section 56.20(b)) and for unauthorized use of her medical information, in violation of section 56.20(c).  The trial court sustained the district's demurrer without leave to amend.

The appellate court held that the section 56.20(b) claim was properly resolved by demurrer.    Section 56.20(b) provides that nothing in the section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee's refusal to sign an authorization permitting a health care provider to release information to others.  Where an employer demonstrates that it acted out of a legal necessity to comply with a lawful order, the exception's application can be determined as a matter of law, because it turns on interpretation of the order.  Here, there was no room for factual debate on how the district could have complied with the health order's requirements other than directing her to stay home, and terminating her when it was clear she was never going to test.  As for the section 56.20(c) cause of action, the trial court properly sustained the demurrer because the plaintiff failed to plead a prima facie case that her medical information was "disclosed."  It did not appear she could save her complaint by amendment, so the trial court properly sustained the demurrer without leave to amend.

14th Amendment Claim for Failure to Protect Pretrial Detainee Mental Patient from Fellow Patient Requires Showing of More than Negligence

In Alexander v. Nguyen, published August 25, 2023, the 9th Circuit affirmed a district court's grant of summary judgment in a 42 U.S.C. section 1983 case.  The plaintiff was a pretrial detainee who was being treated at a state mental hospital until he was competent to stand trial on a criminal charge.  While he was there, a fellow patient struck his head with a fist.  The staff considered multiple factors, and determined that the plaintiff should not be moved out of the unit.  Instead, they took other measures in an attempt to prevent a further attack.  Less than two weeks later, the patient attacked the plaintiff again.  The staff then decided to transfer the plaintiff to another unit.  There was no further violence toward the plaintiff while he was at the hospital.  The plaintiff sued the psychiatrist in charge of his unit, alleging a violation of his 14th Amendment right to substantive due process.  The psychiatrist moved for summary judgment, arguing that he had not violated the plaintiff's rights, and that he was entitled to qualified immunity.  He supported the motion with an expert affidavit that the psychiatrist had acted within the standard of care.  The plaintiff did not offer any evidence disputing the affidavit.  The district court granted the psychiatrist summary judgment on the second prong of qualified immunity:  That it was not clearly established that his actions violated the Constitution.

The 9th Circuit affirmed on a different ground, the first prong of qualified immunity:  That the plaintiff could not establish denial of appropriate medical care in violation of the 14th Amendment.  Pretrial detainees' 14th Amendment claims for violation of the right to adequate medical care are determined under an objective deliberate indifference standard.  Under that standard, mere lack of due care is not enough to show a constitutional violation.  The plaintiff must prove someting more than negligence but less than subjective itnent--something akin to reckless disregard.  Similarly, a patient involuntarily committed to a state hospital alleging a violation of the constitutional right to safe conditions, decisions made by appropriate professionals are presumptively valid, and liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.  Liability requires a finding of conscious indifference amounting to gross negligence.  Here, there is no evidence that the psychiatrist failed to act reasonably in response to the first attack on the plaintiff.  The benefit of hindsight from the fact that the plaintiff was attacked a second time does not show the psychiatrist's original decision was unreasonable.  There was therefore no violation of the plaintiff's constitutional rights.

Government Code Section 815 Does Not Bar Quantum Meruit Actions for Statutory Reimbursement

In County of Santa Clara v. Superior Court (Doctors Medical Center of Modesto), published July 10, 2023, the California Supreme Court reversed a lower appellate court decision directing a trial court to sustain a demurrer.  Under the Knox-Keene Health Care Service Plan Act of 1975, Health & Safety Code section 1304 et seq., if a medical provider provides emergency medical services to a patient enrolled in a health care service plan, the plan must reimburse the provider. (Health & Safety Code, § 1371.4, subd. (b).)  If the plan does not have a contract with the provider addressing the reimbursement rate, the plan must pay the provide the reasonable and customary value of the care provided, under Cal. Code Regs., tit. 28, § 1300.71, subd. (a)(3)(B). Under case law, if the plan fails to pay the reasonable and customary value of the services, the provider may sue the plan for reimbursement under a quantum meruit theory.  Real party hospitals provided emergency services to persons enrolled in a health care services plan operated by the petitioner county.  The  hospitals submitted reimbursement claims to the county.  The county paid only a portion of the amount claimed.  The hospitals sued the county for the remaining amounts, based on the Knox-Keene reimbursement provisions.  The trial court found that the hospitals could state a quantum meruit claim against the county.  On a writ petition by the county, the appellate court ruled that the cause of action was barred by Government Code section 815, which immunizes public entities from nonstatutory causes of action seeking damages.

The Supreme Court reversed.  The liability and immunity provisions of the Government Claims Act, such as section 815, are directed toward tort claims.  Government Code section 814 provides that nothing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or employee.  The Government Claims Act's liability and immunity provisions do not bar quantum meruit actions seeking statutory reimbursement, such as the ones in this case.  The legislative history of the Act, and appellate decisions interpreting the Act, establish that the Act's immunity provisions are intended to limit public entities' exposure to liability for money damages in tort cases, not every conceivable claim that might be pressed against a public entity.  That the hospitals must present claims to seek damages does not subject their causes of action to the Act's liability or immunity provisions.  The claims presentation requirements of the Government Claims Act are broader in scope than the Act's public entity immunity or liability provisions.  The court also distinguished cases holding that private parties who fail to enter into legal contracts with public entities may not use quantum meruit or promissory estoppel theories to recover damages from the entities.  Those cases do not apply to quantum meruit claims seeking damages based on statute, not contract.

 

 

Individual School Districts May Not Require COVID-19 Vaccination

In Let Them Choose v. San Diego Unified School District, published November 22, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court judgment determining that the defendant school district's COVID-19 requirements were preempted by state law.  The district adopted a "Vaccination Roadmap" requiring students 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities.  Unvaccinated students in this group were involuntarily placed on independent study.  A nonprofit corporation and the parent of a 16-year-old student filed complaints challenging the Roadmap.  The cases were consolidated.  On a motion for judgment, the trial court ruled the district's COVID-19 immunization requirements preempted.

The appellate court agreed.  Health and Safety Code section 120335 provides that a school shall not unconditionally admit students who have not been vaccinated for 10 listed diseases.  It also requires vaccination for any other disease deemed appropriate by the State Department of Public Health, after taking into consideration the recommendations of several medical groups.  In 2015, the Legislature considered whether vaccination should be mandated on a school district by school district basis.  A bill analysis explained that a statewide standard was preferred.  Cal. Code Regs., tit. 17, section 6025 provides that a school shall unconditionally admit or allow continued attendance to any pupil who has provided documentation for each immunization for listed diseases.  The Roadmap is preempted by these provisions because it both contradicts state law (conflict preemption) and enters a field already occupied by state law (field preemption).  By creating a comprehensive state procedure to determine the compulsory vaccinations for school attendance, the statute by negative-but-necessary implication provides that students who comply with state immunization requirements (and other eligibility rules) are entitled to attend schools, and that districts are not allowed to add their own vaccine mandates.  The Department of Public Health interprets the statute the same way in regulation 6025.  The court deferred to this agency interpretation.  The regulation enters a field the state has fully occupied, because the Legislature has covered the matter fully and completely, defining the who, what, when, and where of compulsory student vaccination, leaving districts no discretion in the matter.  The court rejected the multiple arguments the district made otherwise.

Whether Mother's Knowledge of Baby's Death and Request for Autopsy Established Accrual of Medical Malpractice Claim Is Issue of Fact

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.