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Bregman v. United States

United States District Court, C.D. California

October 2, 2014

MARILYN BREGMAN, as a representative of the ESTATE OF MORTON BREGMAN, MARILYN BREGMAN, as heir and beneficiary of the Estate, Plaintiff,




Plaintiff Marilyn Bregman was married to the decedent, Morton Bregman, who was 87 years old at the time of his death. Morton Bregman served the United States of America as a soldier during World War II. He sustained a serious injury and eventually, in April 2008, doctors amputated his left leg amputated below the knee. Given his military service, he received medical care from the Veteran's Affairs ("VA") Administration. For three years, Mr. Bregman resided at the VA nursing home. In December 24, 2010, Mr. Bregman was admitted to the VA Hospital Emergency Room. The care received by Mr. Bregman provides the centerpiece of this dispute. Mrs. Bregman, and Mr. Bregman's Estate, maintain that VA hospital personnel failed to provide adequate care to Mr. Bregman which resulted in his death. The government responds, saying that the care provided was adequate and Mr. Bregman died of natural causes.


On December 26, 2012, Mrs. Bregman filed a complaint for damages. (Dkt. No. 1.) The United States answered the complaint on March 30, 2013. (Dkt. No. 6.) On May 14, 2014, the Court dismissed Mrs. Bregman's third cause of action. (Dkt. No. 48.) On July 22, 2014, a bench trial in this matter commenced. (Dkt. No. 74.) The bench trial concluded on July 25, 2014. (Dkt. No. 76.) After consideration of the parties' post-trial briefs, the evidence presented at trial, and oral argument of counsel, the Court makes the following Findings of Fact and Conclusions of Law.[1]


This Court has subject matter jurisdiction over this case pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Plaintiffs also invoke this Court's jurisdiction under 28 U.S.C. §§ 1331, 1346(b). Further, venue is proper under 28 U.S.C. § 1402, as a substantial part of the events giving rise to these claims arose within the Central District of California.


Ninth Circuit Model Jury Instruction 1.11 provides guidance to jurors when assessing credibility. The factors include: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness's memory; (3) the witness's manner while testifying; (4) the witness's interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness's testimony; (6) the reasonableness of the witness's testimony in light of all the evidence; and, (7) any other factors that bear on believability. Ninth Cir. Model Jury Instr. (Civil) 1.11 (2007). The Court finds these factors helpful in assessing the credibility of the witnesses. After assessing these factors, the Court finds the testimony detailed below to be credible.


Exhibits 1, 2, 3, 4, 5, 6, 9, 10, 11, 101, 102, 103, 105, 107, and 108 were received into evidence, and the Court considered them in reaching its decision.

Mr. Bregman became largely bedridden in 2007, after suffering a broken leg related to a bone infection. Approximately six months later, in April 2008, doctors amputated Mr. Bregman's leg above the knee.[2] Mr. Bregman's albumin levels declined from 2008 to 2011, giving him a 20 percent mortality by virtue of his serum albumin levels alone. Declining albumin levels reflects long-term nutritional status. In August 2010, Mr. Bregman was admitted to the VA Hospital for an irregular heart rate, or atrial fibrillation, as well as pneumonia and sepsis. Doctors admitted Mr. Bregman and kept him in the Intensive Care Unit ("ICU"). After five days, doctors moved Mr. Bregman to the general medical floor ("GMED"). Dr. Gregory Brent[3] was his attending physician. On August 17, 2010, Mr. Bregman recovered and returned to the nursing home.

In October 2010, Mr. Bregman was again transported to the ER of the VA Hospital. Within two days, Mr. Bregman again improved and doctors transferred him to the GMED. On November 3, 2010, doctors discharged Mr. Bregman and he returned to the nursing facility. Although doctors determined it was appropriate to transfer Mr. Bregman to the nursing facility, he remained "way below his previous baseline, weak, confused, somnolent and... incomprehensible 90 per cent of the time."

Mr. Bregman returned to the ER on December 24, 2010. Doctors admitted Mr. Bregman into the ICU on December 24, 2010 for hypoxia (low levels of circulating oxygen), altered mental status (for example, somnolent) and hypothermia (low body temperature). In addition, Mr. Bregman was suffering from sepsis (an infection), [4] and methicillin-resistant staphylococcus aureus (MRSA)(a bacterial infection), probably caused from pneumonia. Mr. Bregman also suffered from sleep apnea. Mr. Bregman was given vasosuppressors, among other medications, a drug given to critically ill patients.

Dr. Saft served as Mr. Bregman's attending physician when Mr. Bregman was admitted to the ICU on December 24, 2010. As a result, Dr. Saft was ultimately responsible for Mr. Bregman's care in the ICU. Patients typically sleep poorly in the ICU, so there is an attempt to transfer them to another unit as soon as is safely possible to enable the patient to sleep more deeply. Because Dr. Saft believed that Mr. Bregman was improving clinically, he agreed to transfer Mr. Bregman out of the ICU.

On the morning of December 31, 2010, doctors transferred Mr. Bregman to the GMED. Mr. Bregman was physically transferred from ICU to the GMED ward at 9:00 a.m. on December 31, 2010. Doctors from the ICU ward continued to care and write orders for Mr. Bregman until his care was transferred to GMED doctors at 4:00 p.m. on December 31, 2010. Dr. Gregory Brent became the attending physician assigned to care for Mr. Bregman upon his transfer to GMED from ICU. He oversaw a team of doctors, including a resident, Dr. Tyralee Goo, and an intern, Dr. Rachel Winter. Dr. Brent knew Mr. Bregman because he had previously cared for Mr. Bregman during his August 2010 hospitalization. Dr. Brent concurs with the decision to transfer Mr. Bregman from the ICU ward to the GMED ward.

On December 31, 2010, Dr. Winter examined Mr. Bregman and spoke with him. Dr. Winter also spoke with Marilyn Bregman, who stated that Mr. Bregman had returned to his baseline. Dr. Winter met with Mr. Bregman in the afternoon on December 31, 2010. When Dr. Winter entered the room, Mr. Bregman was lying comfortably. Either Mrs. Bregman or Mr. Bregman's sister, Elsie Miller, informed Dr. Winter that Mr. Bregman was at his baseline. He required a BAIR Hugger on December 31, 2010, a device used to increase a patient's body temperature.

On December 31, 2010, respiratory therapist Gail Jensen worked from 7:00 p.m. to 7:30 a.m. On December 31, 2010 at 4:32 p.m., Mr. Bregman's medical records reflect that a respiratory therapist ordered a BiPAP.[5] It is her practice that, in response to that order, Ms. Jensen would give Mr. Bregman a BiPAP mask that fit him. Patients with nasogastric (NG) tubes can wear a BiPAP mask, using a full mask, one that is used for patients who have an NG tube. She has never had a situation where a BiPAP mask did not fit. It remains the choice of the patient, however, because a patient does not have to wear a BiPAP unless they want to do so.

Exhibit 1 reflects that, on December 31, 2010, Ms. Jensen visited Mr. Bregman. Exhibit 1 further details that she provided Mr. Bregman with a full face mask BiPAP mask. Based upon her practice, she would have given Mr. Bregman a BiPAP mask at night and charted that fact in the morning. A BiPAP machine is typically used by patients during the nighttime, when they are sleeping.[6] Ms. Jensen has never seen an order requiring the use of a BiPAP during the day. Although she does not remember Mr. Bregman, it was her practice to raise the head of Mr. Bregman's bed to speak with him. Ms. Jensen did not note this information in the chart. If Mr. Bregman were asleep when she entered, she would have noted it.

On December 31, 2010, Barbara Gosk, R.N., the night nurse, cared for Mr. Bregman. She took his vital signs. She recorded the vital signs in his medical record. At 12:44 a.m. on December 31, 2010, Nurse Gosk verified that she had read the order of the doctors ...

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