California health care workers whistleblower protections
Recently, the Rubin Law Corporation has represented a number of physicians, medical doctors, physician assistants, registered nurses, nurse’s assistants, medical technicians and other health care workers in connection with their whistleblower claims. The pandemic scourge has made these laws more relevant than ever. Health care workers and physicians who are advocating for greater Personal Protective Equipment (PPE) and are demoted or fired or threatened as a result may have legal recourse. We thought it would be helpful to review some of the specialized laws that California has enacted dedicated to protecting health care workers from retaliation for reporting unsafe practices or conditions affecting or potentially affecting patients. Below is a brief summary:
California health and safety code §1278.5
- Nurses, health care workers, medical staff in facilities with 24 hour (or longer) stay
- Reporting suspected unsafe patient care
- Rebuttable presumption retaliated against if terminated within 120 days
- Recover lost wages, emotional distress, punitives
- Misdemeanor fine $25,000
This law specifically protects individuals who inform proper authorities of any “issues relating to the care, services, and conditions of a facility”. The California Legislature has declared it to be the public policy of this State to “encourage patients, nurses, members of medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions”. What does this mean for you, the employee? It means that the health facility, or any entity that owns or operates the facility, by law cannot retaliate or discriminate against you, if you report any suspected violation of patient care to the medical staff of the facility itself (i.e., your employer) to the agency accrediting it, or to any other governmental agency.
If you are an employee, member of the medical staff or any other healthcare worker at the health facility, discrimination includes, but is not limited to, all of the following: discharge; demotion; suspension; or “any unfavorable change in, or breach of, the terms or conditions of a contract, employment, or privileges”. The health facility also discriminates against you when it threatens any of these actions.
A “health facility” means “any facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer”. California Health and Safety Code §1250. This means that regular doctors’ offices or health clinics likely do not qualify, as in order to qualify as a “health facility” patients must be able to be admitted for at least a 24-hour stay; the most common examples of qualifying institutions would be hospitals. Also, “long-term health care facilities” such as nursing facilities and intermediate care facilities are not protected under this section, but are protected under California Health and Safety Code §1432.
There is a rebuttable presumption that you have been retaliated against if the health facility discriminates against you within 120 days of filing a complaint if you are an employee, member of the medical staff, or any healthcare worker at the facility; or within 180 days of filing a complaint if you are a patient, or have filed on behalf of a patient. If the health facility engages in any of the above conduct, they may be fined of up to $25,000. Also, any individual that willfully violates this section is guilty of misdemeanor and pay be fined up to $20,000.
Any employee who is discriminated against under this section may be entitled to reinstatement, reimbursement for lost wages and work benefits, legal costs, or any other remedy warranted by the court.
California business and professions code §510
- Protects physicians, psychologists, therapists, physician assistants, dentist, others
- Protesting decision, policy or practice affecting patient care
- Recover damages including lost wages, emotional distress, and punitives
This law protects health care practitioners who “advocate for the appropriate health care of his or her patients”. It basically protects you from retaliation in your employment by making it unlawful to fire you or to terminate your contractual relationship. To “advocate for the appropriate health care” of a patient means to “protest a decision, policy, or practice” that you, as a the health care practitioner with the knowledge and skill ordinarily possessed by those with your same certification and practice with the legally required standard of care, reasonably believe impairs your ability to provide appropriate health care to your patients. See Wickline v. State of California 192 Cal.App.3d 1630.
In order to be a health care practitioner under California law you must “engage in acts which are subject to licensure or regulation” in the state of California. To be a “licentiate” means a “physician and surgeon, doctor of podiatric medicine, clinical psychologist, marriage and family therapist, clinical social worker, professional clinical counselor, dentist, or physician assistant” underCalifornia Business and Professions Code §805 or an individual licensed to practice medicine as faculty of a medical school pursuant to California Business and Professions Code §2113 or §2168. You may also be protected under this law if you entered into a contract with a payer (e.g. a health insurance company, medi-Cal, foundation, etc.) and have the right to appeal a denial of payment, or are designated in such contract to have the right to treat the person who entered into the contract.
If any individual, partnership, corporation, or other organization terminates the employment, any contractual relationship, or otherwise penalizes a healthcare practitioner for advocating for the appropriate healthcare of your patients, you can invoke the protections of this law.
California business and professions code §2056
- Protects physicians and surgeons
- Protesting decision, policy or practice that affects health care of patients
- Recovery of wages, emotional distress, punitive damages
The law is similar to California Business and Professions Code §510 but specifically provides protection from retaliation for physicians and surgeons who “advocate for the appropriate healthcare of his or her patients” (defined the same as above) and makes it unlawful for any person to prohibit, restrict or discourage a physician or surgeon from “communicating to a patient information in furtherance of medically appropriate health care”.
Any person who terminates employment, or other contractual relationship, with a physician or surgeon principally for advocating for the appropriate healthcare of his or her patients, violates this section. This law also protects physicians and surgeons from termination, retaliation, or any other penalty, for advocating for the appropriate healthcare of his or her patient.
