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CMA files amicus brief in health care provider whistleblower case



April 28, 2015

Last week, the California Medical Association (CMA) filed an amicus curiae brief in the California Supreme Court to urge a broad interpretation of the hospital whistleblower statute (Health and Safety Code section 1278.5).


In Shaw v. Superior Court, defendant Los Angles Kindred Hospital terminated the plaintiff for complaining that the hospital was employing unlicensed and uncertified healthcare professionals. Following the termination, the plaintiff sued Kindred, arguing that health care providers who are categorized as whistleblowers are protected from retaliation by California Health & Safety Code section 1278.5.


Last year, in Fahlen v. Sutter Central Valley Hospital (2014) 58 Cal. 4th 655, the California Supreme Court sided with an amicus brief filed by CMA that this whistleblower statute entitles physicians to sue directly in court when hospitals retaliate by terminating their medical staff privileges. The Court rejected the hospital industry’s argument that physicians in such situations must instead challenge the adverse peer review decision through a writ petition, which is less advantageous for the physician.


The principal question in Shaw v. Superior Court is whether plaintiffs who file whistleblower retaliation lawsuits are entitled to a jury trial. If not, such lawsuits would have to be tried before a judge sitting as a fact-finder and ultimate decision maker. Conventional wisdom holds that jury trials are preferable over bench trials for plaintiffs. In other words, physicians who suffer whistleblower retaliation by hospitals are likely to prefer a jury trial. CMA’s amicus brief supports entitlement to a jury trial under section 1278.5.


Resolution of the question depends on a statutory interpretation of Health and Safety Code section 1278.5, particularly the types of remedies that are afforded to aggrieved whistleblowers. A broad view of the available remedies supports a finding that section 1278.5 includes the right to a jury trial.


In its deliberations, the Supreme Court will focus on 2007 legislation that amended section 1278.5 to extend whistleblower protections to medical staff physicians while also expanding the available remedies for whistleblowers. As the sponsor of that legislation, CMA's brief explains to the Court the intent and purpose behind the amendments as well as the overall legislative history of section 1278.5.


Oral arguments in Shaw v. Superior Court are expected this summer and a decision will come 90 days later.

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