AARON, J. —
Plaintiffs Nancy Brenner, individually and in her representative capacity as representative of the estate of Dale Brenner, and Zach Brenner, individually,
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, 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, plaintiffs contend that the trial court erroneously granted summary judgment in favor of UHS and Lee. We affirm the court's judgments.
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 anticoagulation 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 bilevel 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 ICU. 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
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
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 University of California San Diego 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
Approximately a year after Brenner died, plaintiffs filed a complaint against UHS, Lee, Dr. Nizar Salek, and Dr. Timothy Killeen.
Lee filed a second demurrer and a motion to strike 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 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.
In late January 2015, during the time period in which the parties were briefing 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 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 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.
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.
"Summary judgment and summary adjudication provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citations.] A defendant moving for summary judgment or summary adjudication may demonstrate that the plaintiff's cause of action has no merit by showing that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action." (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587 [176 Cal.Rptr.3d 279] (Collin).)
Generally, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if [that party] carries [this] burden of production, [the moving party] causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].) In moving for summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action — for example, that the plaintiff cannot prove element X." (Id. at p. 853.) "A defendant moving for summary judgment or summary adjudication need not conclusively negate an element of the plaintiff's cause of action. [Citations.] Instead, the defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence." (Collin, supra, 228 Cal.App.4th at p. 587.)
"After the defendant meets its threshold burden [to demonstrate that a cause of action has no merit], the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more material facts exists as to that cause of action or affirmative defense. [Citations.] The plaintiff may not simply rely on the allegations of its pleadings but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. [Citation.] A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the
"On appeal, the reviewing court makes `"an independent assessment of the correctness of the trial court's ruling [regarding summary judgment], applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law."'" (Hesperia Citizens for Responsible Development v. City of Hesperia (2007) 151 Cal.App.4th 653, 658 [60 Cal.Rptr.3d 124].) Our task is to determine whether a triable issue of material fact exists. (Collin, supra, 228 Cal.App.4th at p. 588.) In independently examining the record on appeal "to determine whether triable issues of material fact exist," we "`consider[ ] all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.'" (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530 [53 Cal.Rptr.3d 700].)
Plaintiffs contend that the trial court erred in granting summary adjudication in favor of defendants on the cause of action for retaliation, in violation of Health and Safety Code section 1278.5 (Section 1278.5). Section 1278.5 provides in relevant part:
According to plaintiffs, both defendant UHS and defendant Lee unlawfully retaliated against Brenner as a result of Nancy's complaints to staff at the hospital about the care her husband was receiving.
We next consider whether summary adjudication of plaintiffs' claim against UHS based on Section 1278.5 was appropriate. We conclude that it was, based on our interpretation of the statute as to those persons whose complaints and/or conduct with respect to an investigation of a facility fall within its purview.
The parties dispute whether a Section 1278.5 claim lies when the complaints or grievances made to hospital staff and/or administrators about patient care are made by someone other than the patient. UHS refers to the portion of the statute that creates the cause of action — i.e., Section 1278.5, subdivision (b) — to assert that only a patient who has made a complaint himself or herself may bring a claim pursuant to Section 1278.5. That provision does appear to limit the individuals for whom statutory protection has been granted, since it prohibits discrimination or retaliation against "against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has" either "[p]resented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity" or "initiated, participated, or cooperated in an investigation or administrative proceeding
However, plaintiffs point out that subdivision (c) of Section 1278.5, which creates an evidentiary presumption for purposes of asserting a claim pursuant to the statute, makes reference to a "grievance or complaint" that has been made on "behalf" of a patient. Specifically, Section 1278.5, subdivision (c) provides that a rebuttable presumption of retaliation is created anytime that there is "[a]ny type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint." (Italics added.) Plaintiffs assert that "[i]t ... follows that an individual making complaints on behalf of a patient has standing under the statute." (Italics added.)
The fact that Nancy may have standing to assert a claim on behalf of Brenner's estate pursuant to Section 1278.5 does not end our inquiry, however. We must determine whether UHS is nevertheless entitled to summary adjudication with respect to this claim. We conclude that the statute does not permit any survivor claim that Nancy may be bringing on behalf of Brenner's estate arising from an alleged violation of Section 1278.5.
Specifically, the question that we must address is whether the statute protects a patient from alleged "retaliation" resulting from complaints made
First, as explained above, subdivision (b) of Section 1278.5, when given its plain meaning, provides protection, and a cause of action, solely to the person who himself or herself has engaged in the protected whistleblowing activity (i.e., the patient, or employee or other staff member who presented a grievance complaint or report about patient care, or initiated, cooperated with, or participated in an investigation about patient care) and who suffered discriminatory or retaliatory acts by the health care facility as a result of that whistleblowing activity. The purpose of the statute, as described in subdivision (a) of Section 1278.5, supports this view of subdivision (b): "[I]t is the public policy of the State of California to encourage patients, nurses, members of the medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions." (Italics added.) In order to further the identified public policy, the Legislature has decided to afford protections to these particular individuals with respect to their conduct in notifying "government entities of suspected unsafe patient care and conditions," as well as in notifying the health care facilities, themselves, of suspected unsafe patient care and conditions. (§ 1278.5, subd. (a).) It is thus clear that Section 1278.5 has, as its primary focus, the protection of those who engage in what are considered "whistleblowing" activities. As so interpreted, the protections of subdivision (b) of Section 1278.5 are limited to protecting the identified individuals from discrimination or retaliation based on their own whistleblowing activity, and not from discrimination or retaliation based on another person's whistleblowing activity. The evidence presented on summary judgment demonstrates that the "complaints" on which the cause of action is based are complaints made by Nancy, who was not a "patient, employee, member of the medical staff, or any other health care worker of the health facility" (§ 1278.5, subd. (b)(1)).
However, as plaintiffs point out, a plain reading of subdivision (c) of Section 1278.5 demonstrates that a patient is entitled to an evidentiary presumption in favor of the existence of retaliation whenever there has been any discriminatory treatment of the patient undertaken within 180 days of the submission of a grievance or complaint to a governmental entity, or within 180 days of receipt of a grievance or complaint by a health facility administrator, when
In our view, however, the intersection of subdivisions (b) and (c) of Section 1278.5 is far from "clear." Rather, these subdivisions appear, on their face, to be contradictory. Subdivision (b) states that only when one of the identified individuals, including a patient, makes a complaint himself or herself is he or she protected from discrimination and/or retaliation from a health care facility. For example, subdivision (b) protects a patient from discrimination or retaliation by the health facility when that patient makes a complaint about patient care, and also protects an employee of the health facility from discrimination or retaliation by the health facility when that employee makes a complaint about patient care. Thus, under the plain text of subdivision (b), a patient or an employee who himself or herself complains about patient care and is discriminated or retaliated against as a result of making that complaint has a claim under Section 1278.5 against the health facility that engaged in the discriminatory or retaliatory act. Subdivision (b), by its plain terms however, does not appear to provide a patient with a claim for retaliation or discrimination as a result of an employee complaining about that patient's care. In other words, subdivision (b), by its terms, protects from discrimination or retaliation only the individual who complains or engages in other whistleblowing activity.
Despite the wording of subdivision (b), subdivision (c) of Section 1278.5 appears to contemplate that a patient may meet his or her evidentiary burden to prove an entitlement to recover under Section 1278.5 when that patient can show that he or she complained, or that someone else complained on his or her behalf, and that within 180 days of the making of the complaint, the patient suffered some discriminatory act. Given that subdivision (b) of the statute envisions that the person protected by the statute, and the person who is thus entitled to recover for discrimination or retaliation under the statute, is the person who made a complaint or engaged in other protected activity, subdivision (c)'s suggestion that a patient is entitled to an evidentiary presumption of retaliation under the statute even when the patient is not the person who made the complaint, appears to be in conflict with subdivision (b), at least with respect to the circumstances under which a patient, as
The judgments are affirmed as to defendants UHS and Lee.
Huffman, Acting P. J., and Haller, J., concurred.
UHS opposed the request for judicial notice, arguing that "[a]ppellants are attempting to present new information that was not considered by the trial court in ruling on Inland Valley Medical Center's motion for summary judgment, and was not part of the documents presented to support their arguments in Appellants' Opening Brief." We disagree. The reporter's transcripts are from the underlying proceedings. Everything that occurred during these proceedings was known to, and presumably considered by, the trial court in making rulings with respect to the case, including rulings addressing defendants' motions for summary judgment. Plaintiffs could have sought to augment the record on appeal to include these transcripts (see Cal. Rules of Court, rule 8.155(a)(1) ["At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [¶] ... [¶] (B) A certified transcript — or agreed or settled statement — of oral proceedings not designated under rule 8.130"]). We see no reason why judicial notice of these transcripts should not be granted. We therefore grant the request for judicial notice.
Further, even if plaintiffs had made this legal argument, the only portion of the record to which they cite would not permit them to avoid summary judgment. This is because the record reference is to Nancy's declaration in which she states the following: "The nurse, Leslie, continued to argue with me but I would not back down. I informed the nurse that I was Dale's power of attorney and decision maker with respect to his health care." Notably, Nancy does not declare that she was acting pursuant to a health care directive and was making decisions on Brenner's behalf because he was incapacitated. Rather, she states merely that she told someone else that she had power of attorney to make medical decisions. Further, plaintiffs have not cited to anything else in the record, such as a copy of any health care directive, that could establish that Nancy was acting, pursuant to some legal authority, in Brenner's shoes as the patient.
