HEALTH AND SAFETY CODE 1278.5 :
HEALTHCARE WHISTLEBLOWER PROTECTION STATUTE
HSC § 1278.5(a) holds that:
“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.”
Key aspects of litigation analysis and strategy include:
1. Pre-litigation investigation and evidence gathering — To analyze the viability of a claim attorneys begin by obtaining the history of the matter and looking for concrete evidence of protected activity that was met with adverse action. Even though 1278.5 does not require that “malice” be proven, evidence of malice is helpful and includes: emails showing predetermined outcomes, statements of personal animus, disputes over economic competition, false information in peer review materials, or procedural deviations suggesting bad faith.
2. Identifying protected activity — Attorneys will work to obtain through discovery or client disclosure all evidence of the protected complaint(s) including but not limited to: written reports, emails, meeting notes, verbal complaint witnesses, regulatory filings, or internal grievances. Timing and specificity of the complaint are important to develop causation.
3. Identifying the adverse/discriminatory action(s) — HSC § 1278.5(d)(2) holds that: “For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker 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.”
4. Establishing temporal proximity and pattern — It is important to document the timeline between the protected complaint(s) and the alleged retaliation. Defendants will allege that they had a “legitimate reason” for taking the adverse action and therefore pattern evidence can strengthen the claim.
5. Defeating pretext defenses — As mentioned above, defendants will claim that the adverse or discriminatory action was justified by performance issues, policy violations, or restructuring. Attacking and defeating these pretextual arguments is critical.
If you are a healthcare worker and you believe you have been retaliated against for making a protected complaint, call our office today.
