Anti-Retaliation Protection for California Healthcare Whistleblowers
In 1999, the California legislature enacted Health and Safety Code section 1278.5, which provides remedies for those health care workers (i.e., “whistleblowers”) who suffer retaliation for reporting suspected unsafe patient care and conditions at a health care facility. Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 667; Alborzi v. University of Southern California (2020) 55 Cal.App.5th 155, 162, 178-179. Section 1278.5, subdivision (b)(1) provides: “A health care facility shall not discriminate or retaliate, in any manner against a patient, employee, member of the medical staff, or other health care worker of the health facility because that person presented 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. . . .”
Section 1278.5, subdivision (d) provides: “There shall be a rebuttable presumption that discriminatory action was taken by the health facility . . . in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility . . . had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in this section, and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility." For purposes of this section, discriminatory treatment of an employee includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions.”
Section 1278.5, subdivision (g) provides in relevant part: “A member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of the member’s privileges caused by the acts of the facility . . . , and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter."
To establish the initial whistleblower retaliation case under section 1278.5, a plaintiff must show that he (1) presented a grievance, complaint, or report to the hospital or medical staff (2) regarding the quality of patient care and (3) the hospital retaliated against him or her for doing so. To show an action was retaliatory a plaintiff must show that action was material and had a detrimental and substantial effect on the plaintiff’s employment. For example, an isolated incident, such as a delay in the delivery of a single paycheck, a failure to receive an overtime check or an early job change, does not constitute an adverse employment action. Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1381. Normally, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence.
Section 1278.5, subdivision (d) provides: “There shall be a rebuttable presumption that discriminatory action was taken by the health facility . . . in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility . . . had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in this section, and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility." For purposes of this section, discriminatory treatment of an employee includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions.”
Section 1278.5, subdivision (g) provides in relevant part: “A member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of the member’s privileges caused by the acts of the facility . . . , and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter."
To establish the initial whistleblower retaliation case under section 1278.5, a plaintiff must show that he (1) presented a grievance, complaint, or report to the hospital or medical staff (2) regarding the quality of patient care and (3) the hospital retaliated against him or her for doing so. To show an action was retaliatory a plaintiff must show that action was material and had a detrimental and substantial effect on the plaintiff’s employment. For example, an isolated incident, such as a delay in the delivery of a single paycheck, a failure to receive an overtime check or an early job change, does not constitute an adverse employment action. Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1381. Normally, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence.