Daily Blast June 8, 2017

Yesterday, the Court of Appeal, Fourth Appellate District, Division One (San Diego) published part of its opinion in Brenner v. Universal Health Services of Ranch Springs, Inc. (June 7, 2017, D071094) ___ Cal.App.5th ___, analyzing plaintiffs’ cause of action for retaliation in violation of Health and Safety Code section 1278.5. (Slip opn., p. 2.) Specifically, the court addressed whether “the statute create[s] a cause of action for discrimination and/or retaliation against a patient that occurs as a result of a relative, friend, or someone other than the patient, or medical or hospital staff, making a complaint about the patient’s care?” The court held that the statute does not allow for recovery under such circumstances. (Id. at p. 29.)

Decedent Dale Brenner (Dale) was a patient at Universal Health Services of Rancho Springs, Inc., doing business as Southwest Healthcare System – Inland Valley Medical Center (UHS) for approximately 23 days after he suffered a stroke a few hours after arriving at the emergency department of the hospital. Dale was eventually transferred to another medical facility and died. Plaintiffs, Nancy Brenner (Nancy), Dale’s wife, individually and in her representative capacity as representative of Dale’s estate, and Zach Brenner, Dale’s son, individually, sued defendants UHS and Dr. Young H. Lee (Dr. Lee) for wrongful death based on medical negligence, retaliation in violation of Health and Safety Code section 1278.5, and elder abuse. Lee and UHS moved for summary judgment, which the trial court granted. The Court of Appeal affirmed. (Slip opn., p. 2.)

In the published portion of the opinion, the appellate court determined that the trial court properly granted summary adjudication of the statutory retaliation claim. (Slip opn., p. 24.) Plaintiffs alleged that UHS and Dr. Lee unlawfully retaliated against Dale as a result of Nancy’s complaints to staff at the hospital about the care her husband was receiving. (Id. at p. 23.) The court agreed with a recent case that held that section 1278.5 does not create a claim against individual doctors, thus the claim failed as against Dr. Lee. (Id. at p. 24.) As to UHS, the court determined that section 1278.5 “[s]ubdivision (b) does not permit an individual who is not a patient and not an employee, member of the medical staff, or other health care worker at the facility, but who has complained on behalf of a patient, to bring a claim for discrimination or retaliation, either against that individual or against the patient.” (Id. at pp. 27-28.)

In the unpublished portion of the opinion, the court concluded that the trial court properly granted summary adjudication of the wrongful death claim. (Slip opn., p. 21.) Plaintiffs’ expert declared that Dale “could have survived” the stroke that he suffered in the absence of any deviation from the standard of care. (Id. at p. 18.) Plaintiffs had to present evidence to establish there was something more than a mere possibility that Dale would have survived but for the identified deviations. (Id. at pp. 18-19.)

In a separate unpublished portion of the opinion, the court also determined the trial court properly granted summary adjudication of the elder abuse claim, in part because plaintiffs’ expert’s declaration did not state that the alleged reckless conduct actually resulted in cardiopulmonary arrest or otherwise caused Dale physical harm, pain, or mental suffering. (Slip opn., pp. 39-41.)