As an expecting parent, one of the worst things that can happen to you is the stillbirth of your child. It’s enough of a tragedy if the stillbirth was unavoidable due to a genetic or developmental abnormality. If the stillbirth was caused by medical malpractice, it’s even worse. That’s what the California mother of a baby stillborn at 39 weeks alleges occurred in her recently-reinstated case against Zuckerberg San Francisco General Hospital.
The reinstatement of her case sets a valuable precedent for California malpractice victims. Here’s what you need to know about the case and what it may mean for your claim.
Tragic Stillbirth Case Leads to Malpractice Claim
Charlotte Kernan filed her malpractice claim against Zuckerberg San Francisco General Hospital after her daughter was stillborn in November 2016. Kernan was 39 weeks pregnant with her daughter when she went to San Francisco General for a relatively routine treatment known as External Cephalic Version (ECV). This treatment was intended to turn the fetus from a bottom-first breech position to a safer, head-first position for the delivery.
At the time of the ECV, the medical professionals informed Kernan that her baby had a steady heartbeat and that the procedure was a success. All previous testing had indicated that the fetus was in good health. However, after she returned home, Kernan noted that the baby was not moving, and she returned for testing the next day, November 5th, 2016. That was when she was told that she had suffered “intrauterine fetal death.” The hospital personnel allegedly told Kernan that there was no known cause of death and no known correlation between ECVs and fetal mortality.
In July 2017, months later, Kernan requested an autopsy of her deceased daughter’s body after talking to another doctor regarding her case. This doctor informed her that her situation had been discussed at a hospital morbidity and mortality conference, which typically occur in response to unusual deaths, but did not give further details. While the autopsy did not clarify the cause of death, Kernan remained suspicious and chose to file a medical malpractice lawsuit against the hospital on November 6th, 2017.
However, the hospital initially had her lawsuit dismissed because she had exceeded the statute of limitations for these claims. The hospital argued that the limitations period began on the date when Kernan was informed of the death, which meant that she filed her lawsuit exactly one day too late. The original judge overseeing the case agreed and dismissed the claim.
It took several years, but Kernan finally had her case reinstated. In a 3-0 decision, the First District Court of Appeal in San Francisco found that the limitations period did not begin until she sought an autopsy. The court found no subjective or objective grounds to support the claim that Kernan believed something had gone wrong with her pregnancy until July 2017. According to this interpretation, the limitations period began in July, and her case was filed well within the allotted time. Her case can now move forward, and she may be able to hold San Francisco General Hospital accountable if it’s found that her child died due to malpractice.
Medical Malpractice and the Statute of Limitations
California sets two potential end dates for the statute of limitations on medical malpractice claims. According to the California Code of Civil Procedure section 340.5, the limitations period lasts for “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”
In many cases, people harmed by medical malpractice have one year to file their claim. When an injury is easy to spot, such as accidentally overdosing a patient in the hospital, the date of discovery is usually the day the incident occurred. However, in situations like Kernan’s stillbirth or other birth injuries, the date of discovery can be months or years later.
That’s how Kernan was able to move her case reinstated. By arguing that she didn’t suspect negligence until July, she convinced the court that the one-year period didn’t begin until July 2017 and wouldn’t end until July 2018. This was still within the overarching three-year period, so the court found she had every right to pursue her claim further.
This isn’t the only exception, though. In rare cases, the three-year limit can be exceeded by the one-year limit if there is proof of fraud, intentional concealment, or the presence of a foreign body. In each of these situations, the victim receives one year to file their claim after discovering the injury, regardless of how long it has been since the incident.
What to Do If You Suspect Malpractice
If you suspect you’re the victim of medical malpractice, the statute of limitations means you have limited time to take action. Here’s what to do to avoid running out of time to file your claim.
- Talk to a medical malpractice attorney. The first thing you should do after realizing you’ve been harmed is to consult with an experienced malpractice lawyer. They will help you build your case and accomplish the necessary legal tasks before the limitations period runs out.
- Get copies of your medical records. Your attorney will help you acquire copies of your medical records about the incident. These records are invaluable evidence of what occurred.
- Get an independent examination. Have an independent medical professional examine you, document your current health, and provide their opinion about how negligent healthcare harmed you.
- File your claim. Finally, your attorney will work with you to file your claim against the negligent healthcare worker or institution before the deadline.
The sooner you reach out to a qualified medical malpractice attorney, the more time you’ll have to file your claim. Don’t risk having your case dismissed like Kernan. Instead, get in touch with the experts at the Law Offices of Michael Oran, APC. We will listen to your story, discuss your options, and help you hold negligent medical workers accountable for harming your health. Call 213-624-1177 or message us online to learn more.
