“I didn’t bring my son up to be killed by a falling cow.” So said the mother of Joao Maria de Souza, a Brazilian man who died a few days ago from injuries sustained after a 3000-pound cow fell through his roof onto him as he slept. However, it does not appear that the immediate impact from the bovine boulder brought about this unfortunate man’s demise. According to Mr. Maria de Souza’s family members, he died from internal bleeding while enduring a long wait for treatment that never arrived after he had been admitted to the hospital.
While the circumstances surrounding Mr. Maria de Souza’s death were unusual, injuries resulting from a “failure to receive timely treatment” are shockingly common. In 2011, Malyia Jeffers, a two-year old Sacramento girl, was taken to the hospital by her parents after they noticed their daughter was running a high fever coupled with bruising. After the Jefferses arrived, they waited for five hours in the emergency room for Malyia to be seen by a physician; during that time they watched helplessly as her condition, a septic infection, worsened. Ultimately, Malyia required several amputations to save her young life, a heart-wrenching result that her parents believe could have been avoided had she been seen by a doctor sooner.
In both of the above cases, the health care providers involved may be liable for professional negligence. In California, professional negligence in this context is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death…” California Civil Code §3333.2(c)(2). The statute of limitations for professional negligence is the shorter of three years or one year after the plaintiff discovered, or reasonably should have discovered, the injury giving rise to the claim, subject to a few exceptions. California Code of Civil Procedure §340.5.
If the person who would otherwise be the plaintiff in a professional negligence action is killed or rendered incapacitated as a result of the injury, the person with legal standing to commence litigation may be a fiduciary such as a personal representative or a conservator. These fiduciaries may find themselves faced with an urgent duty to investigate the merits of the professional negligence claim, and a difficult choice as to whether or not to invest resources under their management and control towards litigation.