Category Archives: Whistleblower

Health Care Whistle Blower Employment Lawyer

One of the types of whistleblowers employment lawyers protect are employees who report unsafe patient care and conditions. The California Legislature has passed some special whistleblower laws for medical professionals and medical staff. In California, it is public policy to encourage doctors and other health care workers to report suspected unsafe patient care and conditions. Ultimately, the California Legislature wants to protect patients.

Unfortunately, medical professionals and medical staff witness poor patient treatment in the workplace all the time. That is why CA Health & Safety Code 1278.5 was enacted. Basically, Health & Safety Code 1278.5 provides that no employer shall discriminate against an employee, member of the medical staff, or other health care worker of the employer for presenting a complaint or report to the employer, or medical staff, or other governmental entity.

Suing On Behalf of Doctors, Surgeons, & Nurses

In Pedowitz, M.D. v. The Regents of the University of California, et al., plaintiff was the Chair of UCLA’s Department of Orthopaedic Surgery. During the first year of employment, plaintiff reported conflicts of interest between UCLA medical professionals and outside medical third parties which plaintiff believed negatively affected patient care and safety. Less than a year into his position as Chair, he was asked to resign. Plaintiff hired an employment lawyer to sue his former employer.

Plaintiff claimed that his removal as Chair was directly due to his reports of various conflicts of interests between doctors and third party medical companies which had the potential to gravely affect patient care and safety. Defendant argued that plaintiff was asked to resign due to his poor leadership skills and his poor communication with colleagues.

The trial lasted two long months. Although there was no jury verdict, there was a $10,000,000 settlement which occurred at trial immediately before closing arguments. The fact that the defendants settled for such a high amount right before closing arguments implies that the case was not boding well for the employer. Defendants must have feared a potential hefty verdict against them in favor of the plaintiff.

Employment Lawyer Against Hospitals and Medical Executives

It never looks good to a jury or any outside observers when an employee is fired for reporting unsafe patient care and conditions, and Pedowitz, M.D. v. The Regents of the University of California, et al. is a testament to that. If you have reported unsafe patient care conditions or care, and believe that your employer has retaliated against you, call an employment attorney immediately.

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California Law Protects Perceived Whistleblowers

Whistleblowing occurs when a company employee reports violations of law, safety violations, or even refuses to violate a law. If an employee “blows the whistle,” an employer is prohibited under California law from retaliating against the employee. But is an employer prohibited from retaliating against an employee if the employer mistakenly believes that an employee is a whistleblower? The court in Diego v. Pilgrim United Church of Christ directly confronted this issue.

In Diego v. Pilgrim United Church of Christ, Plaintiff sued her former employer for wrongful termination in violation of public policy. Plaintiff’s supervisor believed that Plaintiff made an anonymous complaint to social services regarding poor health conditions of the classrooms and playground. Plaintiff was terminated after only two days of the supervisor believing that Plaintiff reported the conditions to social services. Employer argue that Plaintiff was terminated for insubordination when in fact Plaintiff was terminated based on the employer’s mistaken belief that she filed a complaint with a government agency.

The trial court entered judgment for the employer, and Plaintiff appealed. The appellate court reversed, and found that the employer was prohibited from terminating the Plaintiff. The court held that perceived whistleblowers or employees that are mistakenly believed to be whistleblowers are protected from retaliation. The court stated that it is public policy to encourage employees to report violations of law in the workplace without fear of retaliation. The court reasoned that to allow termination of a perceived or suspected whistleblower would be counter to public policy and actually discourage employees from reporting violations in the workplace.

At the end of the day, California law protects perceived and suspected whistleblowers from retaliation by their employer. With that said, an employer cannot wrongfully terminate an employee if he believes the employee reported a violation of law, even if the employer’s belief is mistaken and the employee never even reported the violation of law. If you think you were fired as a suspected or perceived whistleblower, contact our employment attorney for a free consultation.

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Whistleblowers May Still be Protected Even If They Are Not the First to Report a Violation

Under California Labor Code Section 1102.5, an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation, or where the employee has reasonable cause to believe that the information discloses a violation of state or federal law, rule, or regulation. This is one of the potent whistleblower laws in California.

In other words, an employer cannot retaliate against an employee (whether it be, among other things, termination, decrease in hours, suspension, etc.) who reports internal illegal activity to either a government body such as the police or to his or her supervisor. This law applies to just about any employer in California. But what if the employee is not the first to report a violation? What if he or she is the second or even the third employee to report a violation?

First Whistleblower?

In an unpublished California case, an unnamed deputy informed Deputy Sheriff Hager of crooked deputies within the department. The information suggested that another deputy was involved in an illegal drug dealing scheme and was also involved in the disappearance of another deputy. Hager reported this information to his superiors. He was placed on a task force to investigate the drug dealing allegations, but Hager was expressly ordered not to investigate the disappearance of the deputy. However, during the investigation, Hager discovered information regarding the deputy’s disappearance from wire tapped informants. He reported the information to his superiors. The department later fired Hager because he carried out an unauthorized investigation. Hager sued for unlawful whistleblower violations.

The county argued that Hager’s report was not whistleblowing because another deputy already reported the same information to the department before Hager. The court disagreed with the county’s argument. The court held that an employee who reports violations (whether it is reported to a government agency or a person with authority over the employee) that were previously reported by another employee are still protected from retaliation under Labor Code Section 1102.5. The court reasoned that to adopt a rule that only protects the first employee who reports violations would be against public policy. If the court adopted a “first report rule,” then employees would be discouraged from reporting violations out of fear another employee has already done so. However, the court pointed out that their holding does not apply to employees who report publically known and well-known information as this still does not constitute whistleblowing.

Implication for CA Whistleblowers

So what does this mean for employees in California? It provides employees more protection when it comes to whistleblowing. Employees who report violations after the same violation has already been reported may still constitute whistleblowing. This is also the rule under federal law. Although this is not binding California law because it is from an unpublished case, it nonetheless shows that California may very well be heading in the direction of adopting the federal rule, and it also may show how California courts may rule in similar issues in the future. If you feel like you need to consult with a employment attorney about a employment situation, contact our office today.

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Case Law: Khajavi v. Feather River Anesthesia Medical Group – Whistleblower Protection for Doctors

Attorney Case Law Update: Khajavi v. Feather River Anesthesia Medical Group – California Court of Appeal. Branigan Robertson is a California employment lawyer who focuses his practice on healthcare whistleblowers, wage and hour issues, sexual harassment, retaliation, and wrongful termination. Contact the firm for a free consultation.

Facts of the Case:

While prepping a patient for anesthesia, Dr. Khajavi noticed that the patient had an irregular heartbeat which increases the risk of stroke to a patient during and after surgery. Dr. Khajavi asked the surgeon about the patient’s irregular heartbeat and the surgeon told him that it was nothing new and the patient was being treated for it. Relying on this, Dr. Khajavi proceeded with administering the sedative.

Before the surgery began, Dr. Khajavi spoke with the patient’s regular physician, who informed him that the patient had not been treated for an irregular heartbeat and directed Dr. Khajavi to cancel the surgery.

Dr. Khajavi and the surgeon had a heated argument as the surgeon wanted to proceed with the surgery and Dr. Khajavi did not was to proceed with the surgery. Dr. Khajavi refused to attend the patient during surgery as it was not in the best interest of the patient to proceed with the surgery. The surgery was canceled as there was no other anesthesiologist to monitor the patient.

Four days following the incident, Dr. Khajavi was terminated. Shareholders told Dr. Khajavi that the incident was one of the main reasons for his termination. Dr. Khajavi filed a lawsuit asserting that the hospital, had violated Business & Professions Code § 2056 which protects doctors from retaliation for advocating for medically appropriate care.

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Case Law: Fahlen v. Sutter Central Valley Hospitals

Attorney Case Law Update: Fahlen v. Sutter Central Valley Hospitals – California Court of Appeal. Branigan Robertson is a California labor lawyer who focuses his practice on whistleblowers, overtime issues, hostile work environment, and wrongful termination. Contact the firm for a free consultation.

Facts of the Case

Dr. Mark Fahlen reported to hospital authorities that some of his nurses at Memorial Medical Center failed to follow his instructions. In some instances, he believed that the nurses endangered his patients’ lives. One nurse refused to follow Fahlen’s order to use a defibrillator on a patient. Another disobeyed his order to transfer a patient to intensive care.

The hospital’s COO allegedly blamed Fahlen and helped persuade the group to fire him. The hospital then declined to renew Fahlen’s staff privileges. A judicial review committee of six physicians reviewed the nonrenewal of Fahlen’s staff privileges. They found no professional incompetence and reversed the decision. Then the hospital board reversed the committee. The board found that Fahlen’s conduct was not acceptable and was “directly related to the quality of medical care at the Hospital.” This outcome was reported to the Medical Board of California. Fahlen did not file a petition for a writ of mandate challenging the decision. Instead, he filed this lawsuit, asserting a section 1278.5 claim among others.

One Issue in the Case

Health & Safety Code § 1278.5 is a whistleblower protection law designed to encourage health care workers (not just doctors!) to notify authorities of “suspected unsafe patient care and conditions.” I’ve written about this powerful Health & Safety Code statute before.

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Hospital Employee Whistleblower Laws – Health & Safety Code § 1278.5

Employees, nurses, and medical staff who work at hospitals and health care centers frequently witness horrific patient treatment at the hands of doctors and negligent medical staff. They want to report the abusers to the government, but they don’t want to become a whistleblower. They don’t want to be retaliated against. These folks are also hesitant to call an employment lawyer or attorney to get basic guidance. Fortunately, Health & Safety Code 1278.5 was enacted to protect such health care workers. You will have to call a lawyer, but it will be worth it to protect your rights.

This is a law that every hospital worker, nurse, or physician’s assistant should know: Health & Safety Code 1278.5 states:

(a) The Legislature finds and declares that it 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. The Legislature encourages this reporting in order to protect patients and in order to assist those accreditation and government entities charged with ensuring that health care is safe.

The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations.

(b) (1) No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following:

(A) 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.

(B) Has initiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity.

(2) No entity that owns or operates a health facility, or which owns or operates any other health facility, shall discriminate or retaliate against any person because that person has taken any actions pursuant to this subdivision.

(3) A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities.

(c) Any 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, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint.

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