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Brenner v. Universal Health Services of Rancho Springs, Inc.

California Court of Appeals, Fourth District, First Division

June 7, 2017

NANCY BRENNER, Individually and as Executor, etc., et al., Plaintiffs and Appellants,
UNIVERSAL HEALTH SERVICES OF RANCHO SPRINGS, INC., et al., Defendants and Respondents.


         APPEAL from judgments of the Superior Court of Riverside County No. MCC 1300776, Sharon J. Waters, Judge. Affirmed.

          Bohm 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.

          Schmid & Voiles, Denise H. Greer, Sidney J. Martin and Michael C. Ting for Defendant and Respondent Young H. Lee., M.D.

          AARON, J.



         Plaintiffs Nancy Brenner, individually and in her representative capacity as representative of the estate of Dale Brenner, and Zach Brenner, individually, [1] 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).

         Dale 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.

         On appeal, the plaintiffs contend that the trial court erroneously granted summary judgment in favor of UHS and Lee. We affirm the court's judgments.



         A. Factual background

         On May 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 (2007).

         Several 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 (BiPAP).

         On June 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.

         Brenner's 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.

         Brenner 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.

         On June 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.

         An 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.

         Later 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 vein.

         According 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.

         According 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.

         The 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).

         Later 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.

         Also on 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.

         Brenner 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.

         Prior 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.

         After 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.

         An MRI 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."

         B. Procedural background

         Approximately a year after Brenner died, the plaintiffs filed a complaint against UHS, Lee, Dr. Nizar Salek, and Dr. Timothy Killeen.[2] 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 UHS, alone.

         Lee 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.

         The 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.

         In late 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.

         On March 16, 2015, the court entered an order denying the motion for leave to amend to add a request for punitive damages.

         The 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 1278.5.

         The 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.

         The trial court entered judgment in favor of Lee on May 29, 2015. The trial court entered judgment in favor of UHS on June 5, 2015.

         On 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.[3]



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