83 Cal.App.5th 675
Cal. Ct. App.2022Background
- Nov 4, 2016: Plaintiff underwent an apparently successful External Cephalic Version (ECV) with 40 minutes of “reassuring” fetal monitoring.
- That night she felt no fetal movement; Nov 5, 2016 ultrasound revealed intrauterine fetal demise (IUFD). Doctors said etiology was unknown and noted literature did not link ECV to fetal death.
- Plaintiff arranged for an autopsy; the autopsy report (Nov 8, 2016) did not identify a definitive cause. Plaintiff alleges she did not become subjectively suspicious of negligence until meeting Dr. Kerns on July 10, 2017.
- Plaintiff served a §364 notice of intent to sue on Nov 6, 2017 and filed suit within 90 days (Feb 2, 2018). Defendant moved for summary judgment asserting the one-year statute under Cal. Civ. Proc. §340.5 began on Nov 5, 2016.
- Trial court granted summary judgment, holding plaintiff was on inquiry notice as a matter of law on Nov 5, 2016. The Court of Appeal reversed, finding triable issues about when the limitations period began.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §340.5 statute of limitations was triggered on Nov 5, 2016 under the subjective discovery test | Kernan did not subjectively suspect negligence until July 10, 2017; she was too distraught Nov 5 to form suspicion and did not request an autopsy then | Kernan ordered an autopsy Nov 5 and thus subjectively suspected wrongdoing that day | Court: disputed facts about whether she ordered an autopsy and whether she subjectively suspected negligence; triable issue exists, summary judgment improper |
| Whether §340.5 was triggered on Nov 5, 2016 under the objective/inquiry-notice test | A reasonable person would not have suspected negligence on Nov 5 because ECV appeared uncomplicated, doctors did not identify a cause, and medical records showed no known ECV–stillbirth link | A reasonable person should have been put on inquiry notice upon learning of an unexplained IUFD and seeking an autopsy | Court: reasonable minds could differ given the reassuring monitoring, medical uncertainty, and lack of professional suspicion; triable issue exists, summary judgment improper |
Key Cases Cited
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (defines summary judgment burden and triable-issue standard)
- Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 (Cal. 1988) (discovery rule: limitations begins when plaintiff suspects injury was caused by wrongdoing)
- Kitzig v. Nordquist, 81 Cal.App.4th 1384 (Cal. Ct. App. 2000) (recognizes subjective and objective tests for triggering §340.5)
- Gutierrez v. Mofid, 39 Cal.3d 892 (Cal. 1985) (§340.5 ‘injury’ includes physical condition and negligent cause)
- Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797 (Cal. 2005) (plaintiffs charged with knowledge discoverable by reasonable investigation)
- Enfield v. Hunt, 91 Cal.App.3d 417 (Cal. Ct. App. 1979) (reasonable diligence is generally a factual question for jury)