Malpractice suit against UCSF reinstated by court

A state appeals court says a woman who had a stillborn child in 2016, three days after undergoing pregnancy-related treatment at Zuckerberg San Francisco General Hospital, can sue the hospital for alleged medical malpractice, overruling a judge’s decision that she had waited too long to sue.

Charlotte Kernan was 39 weeks pregnant with her first child in November 2016 when she went to the hospital for a treatment called External Cephalic Version, or ECV, to rotate her healthy fetus from a bottom-first breech position to headfirst for future delivery. She said doctors told her the treatment was successful and they detected a steady heartbeat.

But after returning home, Kernan said, she could no longer detect fetal movement, and the next day the doctors told her she had suffered an intrauterine fetal death. The stillborn girl was delivered two days later. Kernan said hospital personnel told her the cause of death was unknown but that medical studies had found no connection between ECV and stillbirths.

After speaking with another doctor in July 2017, however, Kernan said she requested an autopsy of the fetus, then filed notice of an intent to sue in November 2017, just over a year after she had gone to the hospital. The suit was filed against the University of California, whose San Francisco campus is a partner in owning and operating the public hospital.

While denying malpractice, the university also argued that the case should be dismissed under a state law requiring medical negligence suits to be filed within a year of the time the plaintiff discovers the injury, or should have discovered it with “reasonable diligence.”

Superior Court Judge Ethan Schulman agreed, saying there was evidence Kernan suspected mistreatment after she returned home, detected no fetal movement, then was told the fetus had died. “The tragic death of a child in childbirth ... was sufficient to put (Kernan) on notice of the cause of that death” in the absence of evidence of another cause, the judge said in his ruling.

But the First District Court of Appeal in San Francisco said the first clear-cut evidence that Kernan believed she had been mistreated, or had reason to believe so, was when she requested an autopsy in mid-2017, only a few months before she filed notice of legal action.

While UC lawyers claimed Kernan was discussing a possible autopsy at the time of the stillbirth, she said in a sworn declaration that at the time of the events “she was in no shape to talk to anyone about anything, nor was she thinking far enough ahead to order an autopsy,” Justice Tracie Brown said in a 3-0 ruling reinstating Kernan’s suit. The court certified the ruling Monday as a precedent for future cases.

Kernan went to the hospital for the delivery and continued cooperating with the medical staff, which contradicts the hospital’s contention that she had already suspected wrongdoing, Brown said. She also said doctors had told Kernan an autopsy could help her gain peace of mind but might not establish the cause of death, further evidence that she did not yet suspect possible wrongdoing.

“A bad result does not automatically put a reasonable person on notice that there was negligence,” attorney Benjamin Ikuta said in a filing asking the court to certify the ruling as a precedent. Ikuta said the case has a personal meaning to him, as his first child died three days after birth.

Kernan is now 37 and, since the stillbirth, has had two children she is raising with her husband in San Francisco. An immigrant from England, she has worked as an instructor of other women in the fists-andkickboxing sport known as Muay Thai, but after representing herself in early portions of the court case, has enrolled in law school.

The ruling “affirms that what we’ve been fighting for is a valid cause,” she said Tuesday. “I’m sure I’m not the only person that this has happened to.”

A lawyer for the university could not be reached for comment.