Wednesday, September 21, 2022

Kernan v. Regents (Cal. Ct. App. - Sept. 21, 2022)

You're 39 weeks pregnant. Your baby's in a breech position, so you go to the hospital to get the baby turned around -- what's called an ECV (External Cephalic Version). Although today's opinion doesn't explain the procedure, it's basically having the doctor put her hands on your baby from outside your stomach and physically forcing the baby around. (Not a fun process, I might add -- not having gone through it myself, obviously, but having seen it performed.)

Immediately after the procedure, they monitor your baby's heartbeat for 40 minutes, and everything seems fine. So you go home. But after you leave the hospital, you no longer feel the baby move. Ever. So the next day, concerned, you go back to the hospital. At which point they perform an ultrasound and tell you that your baby's dead.

You ultimately file suit, claiming that the version negligently caused the baby's death the next day. You didn't file your lawsuit all that promptly, so the defendant raises the statute of limitations as a defense. The key question on summary judgment is this:

Would a reasonable person have "suspected" -- that's the standard -- that the version the doctor performed on you and your baby was potentially the cause of the baby's confirmed death the very next day?

Plaintiff says no; defendant says yes.

The trial court agrees with defendant and grants summary judgment.

The Court of Appeal reverses, holding that a reasonable factfinder might well conclude that someone had no reason to suspect that the baby's death was caused by the ECV performed on the baby the previous day.

When related issues come up in other lawsuits as to what a reasonable person might suspect, this opinion is one that I imagine lots of plaintiffs will elect to cite. Because if I were the mother -- or father, or nurse, or doctor -- I suspect that given the close proximity in time, I'd definitely have at least suspected that the ECV might potentially have been the cause of the baby's death.

Still do, I might add.