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Gen Lo v. Honda Motor Co.3/28/1994
Petitioners Northwest Hospital and Drs. Ou and Neighbor sought and were granted discretionary review of the trial court's denial of their motions for summary
judgment. The hospital, speaking for all the Petitioners, contends that the medical negligence claims of the Respondents Lo are time-barred in that Elizabeth Lo (Lo), the mother of the minor child Brian Lo (Brian), and her attorney-representative reasonably should have discovered all of the facts giving rise to Brian's claim for injuries occurring during birth, within 3 years after his date of birth.
Finding genuine issues of material fact concerning due diligence in discovering medical omissions alleged to have caused Brian's afflictions, we affirm and remand for trial.
Facts
On January 14, 1988, when Elizabeth Lo was 5 1/2 months pregnant with her son Brian, she got into her Honda automobile and started the engine. The vehicle suddenly accelerated uncontrollably. Unable to stop the automobile with her brakes alone, Lo thrust the gear-shift lever backward and forward in an effort to kill the engine. Before the engine died, Lo's body was thrashed about violently by the forward and backward jerking of the vehicle. Within 24 hours of this incident Lo experienced vaginal bleeding and premature uterine contractions. She was admitted to the hospital, held overnight and discharged the following day. She was counseled to remain in bed.
One month later, February 15, 1988, Lo returned to the hospital in premature labor. She arrived at the emergency room at about 1 a.m., where she remained for over an hour. Dr. Neighbor examined her while she was in the emergency room. At 2:15 a.m. Lo, whose cervix was fully dilated, was admitted to the delivery room. At 2:38 a.m. her membranes ruptured and she lost the amniotic fluid. Brian presented in a footling breach position with a prolapsed umbilical cord, meaning that the cord had become compressed during labor, cutting off the baby's blood (oxygen) supply. Lo, who had had two previous Caesarean section deliveries, was then rushed into an operating room for an emergency Caesarien delivery. Lo's obstetrician, Dr. Ou, who had arrived at the hospital 8 minutes before Lo's water broke, performed the surgery.
Brian's APGAR scores were low and his blood pressure was very low. Brian was in serious respiratory distress at his birth and he immediately was placed in the care of a high-risk team. He was stabilized before being transferred to Children's Orthopedic Hospital, where he subsequently was diagnosed as a spastic quadriplegic with cerebral palsy.
Lo maintains that, following Brian's birth, she repeatedly asked Brian's pediatricians how Brian came to be so severely afflicted. In an affidavit filed in opposition to the summary judgment motions Lo stated that she was consistently told, in response to these inquiries, that "there really is no explanation for such an occurrence, . . . in a small percentage of cases these things just happen."
Lo became convinced in her own mind that Brian's afflictions were related to his premature birth, which she in turn believed to have been caused by the thrashing about she received in her Honda automobile a month before Brian's premature birth. In November 1989, Lo retained attorney George Kargianis and asked him to pursue the possibility that the automobile incident caused or contributed to Brian's premature birth. Kargianis commenced gathering medical records.
In September 1990, the Kargianis firm sent letters to several of Brian's physicians, enclosing various medical records and seeking their opinions about what caused Brian's afflictions. The following letter is re
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