Brown v. Regents
Filed 4/17/13 Brown v. Regents CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
SHIRLEY BROWN, et al.,
Plaintiffs and Appellants,
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant and Respondent.
B235791
(Los Angeles
County
Super. Ct.
No. SC109224)
APPEAL from a judgment of the Superior Court of
County, John L. Segal, Judge.
Reversed.
The Walls-Fox Firm, Larry Dean Walls
and Tiffiny Walls for Plaintiffs and Appellants.
Baker, Keener & Nahra, Brenda K.
Benson; Greines, Martin, Stein & Richland, Martin Stein and Lillie Hsu for
Defendant and Respondent.
_______________________
The wife and children of
Cleveland Brown sued the Regents of the University of California, alleging
death. The Regents obtained summary
judgment, and the Brown family appeals.
We reverse the summary judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Cleveland Brown died on September
11, 2009. His wife and children sued the
Regents, alleging malpractice in the medical care provided to Brown between
August 2008 and the date of his death.
Specifically, the Brown family alleged that the Regents breached the duty
“to assure the competence of its staff physicians and/or failed to exercise
ordinary care under the doctrine of corporate hospital liability and the
circumstances, to evaluate and to assure the quality of its medical staff and
resultant medical care by its staff physicians, and breached its duty of
selecting, reviewing, and periodically evaluating the competency of its staff
physicians. This breach of the duty of
careful selection, review, and periodic evaluation of the competency of its
staff physicians created an unreasonable risk of harm to its patients.†They alleged also that the Regents breached
the duty “to guard against physicians’ incompetence, and further breached their
duty in that they failed to assure quality medical care by the lack of prudent
selection, review, and continuing evaluation of the physicians who were
granted staff privileges.â€
Ultimately, the Browns alleged, between August 2008 and September 11, 2009, the Regents “failed to use due or reasonable care or
skill in endeavoring to examine, care for, diagnose, perform surgery and treat
decedent†for his medical conditions, resulting in his death on September 11, 2009.
The Regents moved for summary judgment. Their separate statement of undisputed
material facts listed only two facts:
“All of the care and treatment provided by this defendant’s agents and
employees, including Dr. David Austin, complied with the standard of care,†and
“No act or omission on the part of this defendant’s agents and employees,
including Dr. David Austin, caused, contributed or was a substantial factor in
causing any harm to the plaintiffs or the death of decedent.â€
To support these statements of undisputed fact, the
Regents relied exclusively upon the declaration of an expert witness, Colin
Haggerty, M.D. Haggerty declared that he
had reviewed the records of David Austin, M.D., Brown’s family practice
physician. These records included “his
chart notes, lab studies, imaging reports, and diagnostic tests carried out by
physicians who Dr. Austin consulted with relative to Mr. Brown.†Based upon his review of these records,
Haggerty concluded that “the care provided by defendant The Regents’ agents and
employees, including Dr. David Austin, to decedent Cleveland Brown was
reasonable, appropriate, and complied with the applicable standard of care,â€
and that no action or inaction by the Regents’ agents or employees caused,
contributed or was a substantial factor in causing harm to Brown.
To support these conclusions, Haggerty discussed the
care provided by Austin from 2002 to March
2009. Beginning in 2002 Austin treated Brown for
headaches, sinus problems, hypertension, and gastroesophageal reflux
disease. This medical care, Haggerty
declared, was reasonable and appropriate, as were the colonoscopies Austin ordered over the
years. In late 2008 Brown reported
abdominal pain, leading Austin to refer him immediately to
a gastrointestinal specialist who performed an endoscopy and began treatment
with antibiotics. The gastrointestinal
specialist followed Brown’s symptoms at this time and then ordered an
ultrasound because Brown reported more discomfort. Haggerty considered this step reasonable and
appropriate.
The ultrasound performed on March 26, 2009, revealed a pancreatic mass, and Austin ordered a CT scan of the
pancreas that was performed the following day.
Haggerty described the next events:
“The patient thereafter was seen immediately by other UCLA affiliated
physicians who then provided him with chemotherapy as well as pain relief (as
his pancreatic tumor was found to be unresectable, i.e. not amenable to surgery
due to the extent and location of the tumor).â€
Haggerty did not discuss the medical care received by Brown for the
remaining six months of his life beyond this reference to further medical care
given by UCLA-affiliated doctors. Moreover,
Austin’s records, on which Haggerty based his opinion that “the care and
treatment provided by defendant The Regents’ agents and employees, including
that provided by Dr. Austin, was reasonable, appropriate, and met the
applicable standard of care,†conclude in March 2009 and do not cover the
remaining months of Brown’s life.
The Brown family opposed the summary judgment motion
with the declaration of another medical expert, Jeffrey I. Kurland, M.D.,
Ph.D. Kurland had reviewed different
medical records; he provided an account of the final month of Brown’s life and
the medical treatment and procedures he received during that time. Kurland concluded that the Regents failed to provide sterile
intravenous tubing and/or sterile intravenous solutions, leading to Brown
contracting a hospital-born infection that contributed to and/or was a
substantive factor in his death from sepsis.
The Regents submitted extensive evidentiary objections
to the Kurland declaration, most significantly that the medical records
upon which Kurland relied had not been authenticated and were therefore
hearsay. The trial court found that the
medical records had not been properly authenticated and that they therefore
could not form the basis of the expert’s opinion. The court concluded that Kurland’s declaration, based on
unauthenticated records and not on personal knowledge, “is not admissible†and
sustained most of the Regents’ evidentiary objections.
The trial court concluded that the Brown family had
failed to carry its burden of demonstrating the existence of a triable issue of
material fact on the issue of whether the Regents breached the standard of
care, and granted summary judgment in the Regents’ favor. Shirley Brown filed a notice of appeal.
DISCUSSION
I.
Construction
of the Notice of Appeal
Brown’s widow Shirley Brown filed a
notice of appeal from the summary
judgment. Brown’s children did not file
notices of appeal, but the opening and reply briefs on appeal are in their name
as well as Shirley Brown’s. The Regents
contend that Shirley Brown is the only cognizable appellant, and the Browns
have requested that we permit them to amend the notice of appeal to include the
Brown children.
The notice of
appeal must be liberally construed, and it is sufficient if it identifies the
particular judgment or order being appealed.
(Cal. Rules of Court, rule 8.100 (a)(2).) In the absence of prejudice to the respondent,
and particularly when the issues as to the appealing party and the omitted
party are identical, courts have liberally construed an otherwise sufficient
appellants. (Beltram v. Appellate Dept. (1977) 66 Cal.App.3d 711, 715
[construing notice of appeal filed by city to also encompass the city employee
whose liability was the basis of the city’s liability]; Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15 [because
there was no prejudice to the respondent, notice of appeal of sanctions award
by plaintiffs was deemed to include an undesignated attorney who was found
jointly and severally liable for sanctions]; Boynton v. McKales (1956) 139 Cal.App.2d 777, 787-788 [notice of
appeal filed by employer construed to cover an employee as well where the
defendants could not have been prejudiced, as they must have understood that
plaintiff would not appeal the new trial order as to the employee only].) Here, neither in briefing or at oral argument
did the Regents articulate any actual prejudice resulting from the liberal
construction of the notice of appeal to include all the plaintiffs, and we
cannot conceive of any possible prejudice to the respondents in light of the
plaintiffs’ identical litigation position in the trial court and their intent
to raise the same appellate issues as Shirley Brown as manifested by their
inclusion on the briefing on appeal. We
therefore construe the notice of appeal to include Brown’s children.
II.
Summary
Judgment
A motion for summary judgment is properly granted only
when “all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.†(Code Civ. Proc., § 437c, subd.
(c).) A defendant moving for
summary judgment begins with the burden of showing that there is no merit to a
cause of action, and it satisfies this burden if it shows that one or more
elements of the cause of action cannot be established or that there is a
complete defense to that cause of action.
(Code Civ. Proc., § 437c, subd. (p)(2).) In order to obtain a 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 . . . . Although he remains free to do so, the
defendant need not himself conclusively negate any such
element . . . .†(
25 Cal.4th 826, 853 (Aguilar).)
Once the defendant has made such a
showing, the burden shifts to the plaintiff to show that a triable issue of one
or more material facts exists as to that cause of action or as to a defense to
the cause of action. (Aguilar,
supra, 25 Cal.4th at p. 849; Code Civ. Proc., § 437c, subd.
(p)(2).) If the plaintiff does not make
this showing, summary judgment in favor of the defendant is appropriate. If the plaintiff makes such a showing,
summary judgment should be denied. On appeal, we review a grant
of summary judgment de novo. (
1342, 1348.)
Here, the Regents’ prima facie showing was insufficient
to show that one or more elements of the plaintiffs’ cause of action
could not be established or that there was a complete defense to that cause of
action. (Code Civ. Proc., § 437c,
subd. (p)(2).) The Regents’ motion
for summary judgment rested entirely on the opinion of expert witness Haggerty,
but Haggerty had only
reviewed medical records dating through March 2009, and only the records of one
Regents’ doctor whose care for Brown apparently ended months before Brown
died. Because of the limited scope of
the records reviewed by Haggerty, he was competent only to opine concerning the
adequacy of a portion of the care provided by the Regents to Brown: Haggerty’s declaration demonstrated only that
the care provided or recorded by Austin through late March 2009 comported with
the standard of care. The declaration
was insufficient to demonstrate that there was no triable issue of material
fact as to whether the care provided to Brown by other Regents’ employees, and/or
for the period from late March 2009 through September 11, 2009, complied with
the standard of care. The Regents,
therefore, failed to “show that the plaintiff cannot establish at least
one element of the cause of action†(Aguilar,
supra, 25 Cal.4th at p. 853), and the summary judgment must be reversed.
The Regents argue that their
burden is limited to negating the existence of triable issues of fact on those
issues raised by the pleadings, and that they have no obligation to refute
liability on theoretical possibilities not articulated in the pleadings or on
unintelligible allegations. (See, e.g.,
245, 250; FPI Development, Inc. v.
Nakashima (1991) 231 Cal.App.3d 367, 382.)
While we do not dispute this characterization of the moving party’s
obligations, the complaint here expressly and intelligibly alleged negligence
in the medical care provided to Brown from August 2008 and September 11, 2009,
resulting in Brown’s death. To the
extent the Regents wished to narrow or clarify the allegations of wrongdoing,
they could have sought clarity through motion practice and/or discovery rather
than seeking summary judgment based on an evidentiary showing that covered only
a portion of the medical care provided to Brown and part of the time period
placed at issue by the complaint.
DISPOSITION
The summary judgment is reversed and
the matter remanded to the trial court.
Appellants shall recover their costs on appeal.
ZELON,
J.
We
concur:
PERLUSS, P. J.
JACKSON, J.
name="_ftn1" title="">[1] Our
ruling that the summary judgment was improperly granted and must be reversed
makes it unnecessary for us to consider the propriety of the trial court’s
rulings on the evidentiary objections to the Browns’ evidence submitted in
opposition to the summary judgment motion, the denial of the Browns’ requested
continuance, and the denial of their motion for reconsideration.
