`Discovery rule' Thwarts Dr.'s statute of limitations defense.

CASE ON POINT: Martinez v. Alinsod, 2002 WL 31693826 P.2d - CA

ISSUE: In most cases, the passing of a specific period known as the statute of limitations, which varies from state to state, can determine whether or not an alleged victim of medical malpractice is forever barred from pursuing a claim. That was just one of the aspects of a recent case, with which the California courts were confronted. In this case, a mother who gave birth to a child with a serious defect failed to bring a suit for alleged medical malpractice within the three-year statutory period applicable in California. It was clear that the mother had no reason to be subjected to the statute. She did not have knowledge of the alleged negligence until three years had passed. California law provides that in such cases, an aggrieved party has one year from the date that they knew or should have known of the alleged negligence. Was the patient required to sue before the expiration of the one-year period? Did the fact that the physician allegedly responsible for her complications reassured her that everything was okay make a difference?

CASE FACTS: On March 18, 1996, Molly Martinez was admitted to Northridge Hospital Medical Center for the purpose of inducing labor. The following day, under the care of the hospital's medical staff, Martinez gave birth to a girl, Yasmina. During delivery, Dr. Red Alinsod decided that it was necessary to rupture the patient's membranes. The rupture revealed meconium, a dark greenish mass that accumulates in the bowel of the fetus during its development and which is discharged shortly after birth. The patient saw the meconium and became worried. (A friend had previously told her that meconium is poisonous, and it could kill a baby if inhaled). When the patient saw the meconium, she asked Dr. Alinsod, "Well, don't we need a c-section?" Dr. Alinsod answered, "No. No. This happens all the time. Don't worry about it." The patient said, "I think we need to have it." Dr. Alinsod replied, "No way. You don't need to have that. It's normal. It's already out. We've already taken it out of her. It's okay." The patient replied, "Oh, okay." Later, during delivery, when Dr. Alinsod mentioned the possibility of a C-section, the patient wanted to wait a little longer, hoping to give birth by vaginal delivery. Dr. Alinsod agreed to wait another 15 minutes. All the while he was using fundal pressure, forceps, and vacuuming to assist in the delivery. The patient's husband, Manuel, was in the operating room a portion of the time. He described his wife as "out of it." Eventually, Dr. Alisnod performed a C-Section. Yasmina was placed in the neurological intensive care unit. Immediately after birth, Yasmina had seizures, and her kidneys began to fail. She had suffered an infarction in her brain. While the patient was in the recovery room, a woman came in and told her. "Your daughter has a 50/50 chance of living because she breathed in meconium." The woman said that Yasmina had died, and "we had to resuscitate her." The woman added, "We don't know what's wrong." One of the physicians, Dr. Aiken, told the patient that the infarctions could cause mental retardation or blindness. On April 1, 1996, Yasmina was discharged from the hospital. Based on what the physicians had said, Martinez knew that Yasmina would need continuing medical care. The hospital recommended that a physical therapist, a neurologist, and a pediatrician would be needed. Martinez did not question what, if anything, Dr. Alinsod had done wrong. In Martinez' own words: "I would blame myself for wanting to be a whole woman and deliver vaginally." On June 17, 1999, the patient and her husband brought suit against Dr. Alinsod, Dr. Aiken, and the hospital. They alleged a claim for medical malpractice on behalf of Yasmina and a claim for negligent infliction of emotional distress. The defendants' motion for summary judgment was granted on the grounds that the statute of limitations had run. The plaintiffs appealed.

COURT'S OPINION: The Court of Appeal of California reversed the judgment of the lower court and remanded the case for trial. The court held, inter alia, that the plaintiffs' claim was not barred by the statute of limitations. In California a medical malpractice suit must be brought within three years after the date of injury or one year after the plaintiff discovers or should have discovered the claim, whichever occurs first.

LEGAL COMMENTARY: The court noted that the `Discovery' exception applicable to malpractice cases is premised upon special circumstances surrounding a tort which diminishes the force of a defendant's argument that he is entitled to the early protection of a statutory bar. In many cases, harm caused by medical malpractice is not immediately apparent. The court was satisfied that the child's mother relied upon Dr. Alinsod's representation that there was nothing unusual about the delivery. The court found that the mother could have reasonably relied upon the defendants' opinion that the cause of Yasmina's health problems was "unknown."

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Reagan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as all attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.