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Medical Whistleblower

Contra Costa County Medical Whistleblower Lawyer

What is Health & Safety Code section 1278.5?

Health and Safety Code Section 1278.5 is a California medical whistleblower statute that protects employees or physicians (and healthcare workers) from retaliation when they expose failures in the medical care system. The language is clear:

“[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.” (Health & Safety Code section 1278.5(a))

What Type of Retaliation is Prohibited under 1278.5?

Retaliation can be of any type. Failure to renew a contract, hostile treatment in the workplace, failure to promote are obvious examples. An excellent list of more covert retaliation was prepared by the CMA (California Medical Association) and adopted by the California Supreme Court in the case titled, Shaw v. Superior Court (2017) 2 Cal.5th 983, [216 Cal.Rptr.3d 643, 393 P.3d 98,)

In Shaw, the California Supreme Court stated:

“According to the CMA [California Medical Association], examples of actions a hospital can take to suppress physician-whistleblowers or to retaliate against them are:

(1) underwriting the salary and/or practice expenses of a competing physician;

(2) establishing a medical care foundation and supporting its physicians with hospital funds;

(3) recruiting competing physicians to the community in the absence of a community deficit for that specialty;

(4) establishing a medical practice administrative service company for selected physicians and charging below market rates so that the doctor keeps a higher percentage of the collections and gains a competitive advantage;

(5) buying the medical building with the physician’s office and refusing to renew the physician’s lease;

(6) inducing primary care physicians to refer patients to the hospital outpatient facility for tests, bypassing the specialist’s office-based testing (e.g., imaging and cardiac tests);

(7) providing special scheduling priorities for hospital facilities;

(8) underwriting certain physicians and empowering them with control or influence over the peer review process;

(9) developing investment partnerships with selected physicians (surgery center, MRI center) that provide lucrative annual returns on investment (e.g., 50% return on investment (ROI) annually); and

(10) providing special equipment leasing arrangements for selected physicians with above market ROI.

California Whistleblower Protection Act (CWPA)

The California Whistleblower Protection Act (CWPA) protects state employees who report dangerous conditions or various violations of the law.  The CWPA is found at Government Code sections 8547 et seq.)  People who are protected may file a complaint with the State Personnel Board (SPB) concerning the improper personnel action.

Labor Code Section 1102.5

All workers including healthcare workers have protection provided by the Labor Code section 1102.5. This law makes it illegal for employers to retaliate against employees who report a violation of a state or federal law or regulation.  This law requires an employment relationship with the person or entity that retaliates. See: Bennett v. Rancho California Water Dist. (2019) 35 Cal.App.5th 908, 911.  Labor Code section 3351 has a very broad definition of “employee” so even non-traditional employees may fit.  If a person is what we traditionally consider an independent contractor they can argue that they have a type of employment relationship.  If this does not apply, but H&S 1278.5 might be a better fit.   Labor Code section 1102.5, subdivision (b) requires that the employee engage in  “protected activity” such as warning about a violation of law and an “adverse employment action.”  These definitions are broadly defined so that most traditional whistleblowing is covered and protected.

 

  H&S 1278.5 which is the medical whistleblower statute does not require an employment relationship but it is limited to actions against medical entities and not individuals who retaliate.  Many lawsuits allege violations of both H&S 1278.5 and Labor Code section 1102.5 as alternative theories.

 

How You Can Protect Yourself

If you are fighting for patient interests and are feeling pushback, you should document all actions that you have taken as a whistleblower and preserve all e-mails (with metadata), texts and conversations that will later support a claim of retaliation under H&S section 1278.5.

If you are experiencing retaliation under the CMA guidelines you should seek immediate legal help to protect your interests. The Horowitz Medical Law Group has the experience to protect whistleblowers and to file a lawsuit to vindicate your rights.

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