California Court of Appeals, Fourth District, First Division
NANCY BRENNER, Individually and as Executor, etc., et al., Plaintiffs and Appellants,
UNIVERSAL HEALTH SERVICES OF RANCHO SPRINGS, INC., et al., Defendants and Respondents.
FOR PARTIAL PUBLICATION [*]
from judgments of the Superior Court of Riverside County No.
MCC 1300776, Sharon J. Waters, Judge. Affirmed.
Law Group, Lawrance A. Bohm, Bradley J. Mancusco and Maria E.
Minney for Plaintiffs and Appellants.
Dummit, Buchholz & Trapp, Scott D. Buchholz and Moira S.
Brennan for Defendant and Respondent Universal Health
Services of Rancho Springs, Inc.
& Voiles, Denise H. Greer, Sidney J. Martin and Michael
C. Ting for Defendant and Respondent Young H. Lee., M.D.
Nancy Brenner, individually and in her representative
capacity as representative of the estate of Dale Brenner, and
Zach Brenner, individually,  appeal judgments entered
in favor of defendants Universal Health Services of Rancho
Springs, Inc., doing business as Southwest Healthcare System
- Inland Valley Medical Center (UHS) and Dr. Young H. Lee,
M.D. (Dr. Lee or Lee).
Brenner, Nancy's husband and Zach's father, was a
patient at the Inland Valley Medical Center for approximately
23 days after he suffered a stroke a few hours after arriving
at the emergency department of the hospital. He was
eventually transferred to another medical facility, where he
later died. Approximately a year after Dale Brenner's
death, the plaintiffs sued UHS, Lee, and additional
defendants, asserting causes of action for wrongful death
based on medical negligence; retaliation, in violation of
Health and Safety Code section 1278.5; and elder abuse, in
violation of Welfare and Institutions Code sections 15610, et
seq. Lee and UHS moved for summary judgment, which the trial
court granted. The trial court thereafter entered judgments
in favor of UHS and Lee.
appeal, the plaintiffs contend that the trial court
erroneously granted summary judgment in favor of UHS and Lee.
We affirm the court's judgments.
AND PROCEDURAL BACKGROUND
31, 2012, Dale Brenner (Brenner), who was 71 years old at the
time, was brought to the emergency department at the Inland
Valley Medical Center, accompanied by his wife, Nancy, who
had been a nurse for over 30 years. Brenner was complaining
about severe shortness of breath, and his blood pressure upon
admission to the facility was 198/100. Brenner's medical
history included diagnoses of a previous heart attack,
cardiac disease, insulin dependent diabetes, chronic
obstructive pulmonary disease, a previous stroke (2007), high
cholesterol, hypertension, sleep apnea, renal insufficiency,
deep venous thrombosis requiring anti-coagulation medication,
and congestive heart failure, as well as two coronary artery
bypass graft surgeries (1990 and 1991) and a tracheostomy
hours after Brenner arrived at the emergency department, he
suffered a stroke. He was thereafter admitted to the
hospital's Intensive Care Unit (ICU). Brenner was placed
on tube feedings and bi-level positive airway pressure
3, 2012, Nancy attempted to reach the Director of Nursing and
the CEO of the hospital to express her concerns regarding the
sufficiency of Brenner's care in the IC U.She also
contacted the hospital's case manager office to complain.
condition began to improve, and on June 4, 2012, he was
transferred to the Progressive Care Unit (PCU), which
provides a lower level of care than the ICU. That same day,
Nancy made a request at the nurse's station to speak to
the nursing supervisor regarding Brenner's positioning
and feeding tube issues that had occurred during the transfer
process. The following day, Nancy left messages with a
physician, who she contends failed to return her calls. She
also asked to speak with the nursing supervisor that evening.
was transferred back to the ICU on June 7, 2012. Dr. Timothy
Killeen informed Nancy that Brenner was in septic shock and
was demonstrating signs of kidney failure.
9, Dr. Lee, who specializes in critical care and pulmonology,
first saw Brenner. Lee was covering for Dr. Killeen over the
weekend. Dr. Lee noted that Brenner was in no acute distress
and that his vital signs were stable. By June 10, at
approximately noon, however, Dr. Lee noted that Brenner's
condition had "significantly deteriorated." Brenner
was short of breath and more "obtunded" (i.e., less
alert). Brenner required continuous BiPAP. Dr. Lee planned to
intubate Brenner. Dr. Lee's notes include the fact that
he had been informed by Nancy that Brenner had a history of
prior difficult intubation and had previously undergone an
"emergent cricothyroidotomy." Dr. Lee requested an
anesthesiologist to assist with the intubation.
anesthesiologist arrived to perform the intubation, but
encountered difficulty in performing the procedure. A surgeon
arrived to perform a possible emergency tracheostomy. Nancy
refused to leave the room, even after having been asked to do
so multiple times and being told that a sterile environment
was required. The anesthesiologist was ultimately able to
successfully intubate Brenner. He noted that he believed
Brenner may have aspirated prior to intubation.
that afternoon, Brenner's diastolic blood pressure
dropped. Dr. Lee ordered that a "PICC" line be
placed in order to administer medication to regulate
Brenner's blood pressure. After a radiologist
unsuccessfully attempted to place a "PICC" line in
Brenner's arm, a central line was recommended instead. At
approximately 3:30 p.m., Dr. Lee began a procedure to insert
a central line into Brenner's right internal jugular
to Nancy, she asked Dr. Lee why he was not using an
ultrasound to determine the appropriate placement of the
central line. Dr. Lee replied that it was " 'not
necessary.' " He refused to perform the procedure
unless Nancy waited outside of the room. Nancy left the room.
Approximately 30 minutes into the procedure, Nancy asked a
nurse whether something had gone wrong. She was told that
there had been some problems during the procedure but that
everything was fine.
to the nursing notes, Nancy was permitted back in
Brenner's room at approximately 3:50 p.m. There was a
dressing over the site of the central line insertion. No
bleeding was indicated from the dressing. According to Nancy,
when she returned to the room, there was blood all over the
bedding and she saw the beginning signs of bruising and
swelling around Brenner's neck.
following morning, June 11, a nurse noticed a lump on
Brenner's neck, and she checked the central line
insertion site. The nurse noted the presence of a hematoma.
She paged Dr. Lee. Dr. Lee then ordered a chest x-ray, which
demonstrated that the right central line catheter was located
in the superior vena cava, which, according to an expert, was
the "appropriate position, " and that Brenner had
not suffered a pneumothorax (i.e., a punctured lung).
that morning, a nurse informed Lee that Brenner's
hematoma appeared to be increasing in size. Lee told the
nurse to put a pressure dressing over it. The nurse also told
Lee that Nancy wanted to speak with him. He informed the
nurse that he was no longer on call for Dr. Killeen. The
nurse called Dr. Killeen, who told the nurse that he would
call Nancy as soon as he could.
June 11, 2012, a vascular surgeon evaluated Brennan's
neck hematoma. A CT scan of the area showed the existence of
a soft tissue hematoma along the sternocleidomastoid muscle.
The CT scan demonstrated that the hematoma had no
demonstrable effect on the carotid arteries and showed no
indication that the carotid artery had been injured. The
surgeon believed that any active bleeding in the area had
stopped, and noted that he would consider operating to drain
the hematoma if it continued to grow or began to impose
pressure on Brenner's airway.
was treated by Dr. Killeen for another 11 days. At some
point, Nancy requested that Brenner be transferred to Scripps
Green Hospital. He was transferred there on June 22, 2012.
to Brenner's transfer to Scripps Green Hospital, during
the final week he remained at Inland Valley Medical Center,
Nancy met with the hospital's CEO and others regarding
her concerns about Brenner's medical treatment.
the transfer to Scripps Green Hospital, a cardiothoracic
surgeon evaluated Brenner for a potential tracheostomy, given
Brenner's respiratory failure due to severe pulmonary
disease. Without a tracheostomy, Brenner was facing the
potential of being intubated for a prolonged period. Later,
however, the surgeon noted that if Brenner's family
wanted him to undergo aggressive care, he would have to be
evaluated for laser therapy at UCSD for treatment of
subglottic stenosis (narrowing of the windpipe) before a
tracheostomy could be performed.
revealed that a significant portion of Brenner's brain
tissue had died. Any surgical intervention as to an occlusion
in his left carotid artery, even if successful, would not
have provided Brenner with a decent quality of life.
Brenner's treating physicians recommended to Nancy and
Zach that they remove Brenner from life support. They agreed
to do so and to have Brenner transferred to hospice care.
Brenner died on June 29, 2012. Brenner's death
certificate identifies "ACUTE RESPIRATORY FAILURE"
as the primary cause of death. The death certificate also
lists as contributing causes "NON TRAUMATIC RIGHT NECK
HEMATOMA" and "CEREBROVASCULAR ACCIDENT."
a year after Brenner died, the plaintiffs filed a complaint
against UHS, Lee, Dr. Nizar Salek, and Dr. Timothy
Killeen. In the original complaint, the
plaintiffs asserted causes of action for (1) elder abuse, in
violation of Welfare and Institutions Code section 15610, et
seq., as to all defendants; (2) retaliation, in violation of
Health and Safety Code section 1278.5, as to all defendants;
and (3) "[w]rongful [d]eath/[m]edical [n]egligence,
" as to all defendants. In response to a demurrer filed
by Lee, the plaintiffs amended the complaint to allege the
same causes of action, but to limit the elder abuse claim to
filed a second demurrer and a motion to strike the
plaintiffs' requests for predeath pain and suffering and
punitive damages. UHS also moved to strike the request for
punitive damages from the first amended complaint. The trial
court overruled Lee's second demurrer, but struck from
the complaint the plaintiffs' request for damages in the
form of predeath pain and suffering, as well as the request
for punitive damages.
plaintiffs filed a motion for leave to file a second amended
complaint in order to add a request for punitive damages,
pursuant to Code of Civil Procedure section 425.13.
January, 2015, during the time period during which the
parties were briefing the plaintiffs' motion for leave to
file a second amended complaint, Lee filed a motion for
summary judgment. The same day, UHS filed a motion for
summary judgment. The motions were set for separate hearings
to occur in mid-to-late April 2015.
March 16, 2015, the court entered an order denying the motion
for leave to amend to add a request for punitive damages.
court held a hearing on Lee's motion for summary judgment
in April 2015. The trial court overruled all of the
plaintiffs' evidentiary objections. The trial court
concluded that summary adjudication in favor of Lee was
appropriate with respect to the retaliation claim. The court
also determined that the plaintiffs' expert's
declaration was legally insufficient to establish a triable
issue of material fact with respect to causation as to the
wrongful death claim. In addition, the court concluded that
Lee was entitled to summary adjudication with respect to the
claim for retaliation under Health and Safety Code section
court held a hearing on UHS's motion for summary judgment
the following week. The court overruled all of the
parties' evidentiary objections, and then turned to the
merits of the summary judgment motion. The court took the
matter under submission at the conclusion of the hearing and
ultimately granted the motion in full.
trial court entered judgment in favor of Lee on May 29, 2015.
The trial court entered judgment in favor of UHS on June 5,
September 4, 2015, the Court of Appeal, Fourth District,
Division Two, entered an order deeming Nancy's premature
notice of appeal to have been a notice of appeal filed
following the entry of judgments. The court also construed
the notice to include Zach, individually, as an appellant and
to indicate Nancy's status in appealing both as an
individual, as well as in her representative capacity as
representative of Brenner's estate. The case was
subsequently transferred to the Court of Appeal, Fourth
District, Division One on September 13, 2016, per an order of
the Supreme Court.