Whistleblower Protections May Help to Improve Patient Safety

By Christian Nickerson and Ivan Puchalt

Recent judicial and legislative developments in California have enhanced protections for whistleblowers who report patient safety concerns or other suspected illegal or unethical activity within the medical community. These developments help to strengthen California's public policy in promoting transparency and encouraging health care workers to report concerns for the protection of patients and consumers across the state without fear of retaliation by their employer or co-workers.

Health and Safety Code Section 1278.5 is one whistleblower statute that protects doctors and medical staff who report concerns related to patient safety. The statute prohibits a health facility from discriminating or retaliating against a patient, employee, member of the medical staff, or any other health care worker for making a report of suspected unsafe patient care or conditions at the facility. The statute further provides that if the retaliatory acts occur within 120 days of the disclosure, there is a rebuttable presumption that the actions were done in retaliation for the disclosure.

A state Supreme Court decision, Fahlen v. Sutter Central Valley Hospitals (2014), interpreted this statute, and sided with a plaintiff physician who reported concerns related to unsafe patient care at a hospital. The plaintiff's staff privileges were terminated by the defendant hospital after he reported patient safety concerns, including substandard performance by hospital nurses. The plaintiff alleged that his privileges were terminated by the hospital in retaliation for making such reports.

The hospital claimed that the lawsuit should be dismissed because the plaintiff had not first obtained a mandamus judgment to set aside the hospital's decision regarding the termination of his staff privileges, which is normally required in similar actions. The Supreme Court disagreed, holding that when a plaintiff sues under Section 1278.5 and claims that his or her staff privileges have been terminated in retaliation for reporting patient safety concerns, that plaintiff can pursue civil remedies immediately without first obtaining a mandamus judgment in his or her favor to overturn the hospital's administrative decision.

The Supreme Court commented on the public policy in California that encourages health care workers to report concerns related to unsafe patient care without fear of retaliation. Section 1278.5, coupled with the Supreme Court's holding in Fahlen, undoubtedly assists in promoting that policy for protecting patients and consumers across the state by enhancing protections for healthcare whistleblowers, who now have an immediate civil remedy without the delay of administrative exhaustion.

Although they can be applied in a much broader context, recent developments under the California Government Code and Labor Code also promote patient safety and transparency by enhancing protections for whistleblowers in the medical community.

Government Code Section 8547.10 specifically protects any University of California employee from retaliation for having made a protected disclosure of an improper governmental activity. The law broadly defines "improper governmental activity" as a violation of any state or federal law or regulation or any conduct that is economically wasteful. The statute implies that the whistleblower does not have to prove a violation of law or economic waste, so long as the protected disclosures are made in good faith.

Similarly, Section 8547.12 provides the same protections for whistleblowers within the California State University system. Litigants should know that both the UC and CSU systems require whistleblowers to file a formal verified complaint and pursue an internal administrative process as a pre-requisite to filing a civil lawsuit. It is only after the university has failed to reach a decision, or has not "satisfactorily addressed" the claim within 18 months, that the whistleblower may sue.

In Runyon v. Board of Trustees of California State University, 48 Cal. 4th 760 (2010), a case involving a CSU whistleblower, the court held that if the complainant does not subjectively feel that the internal investigation "satisfactorily addressed" his or her complaint, a civil lawsuit may be filed. Thus, it appears that even if an adverse administrative decision is rendered against the complainant, a civil remedy may be pursued without first obtaining a favorable mandamus judgment if the complainant feels his or her complaint has not been satisfactorily addressed. The Legislature recently amended Section 8547.10(c) to add this "satisfactorily addressed" language to the statute, indicating that UC whistleblowers have the same rights and protections under the Government Code as CSU employees.

Doctors and other health professionals, whether they be in private practice or academic medicine, may also be protected from retaliation under Labor Code Section 1102.5, which protects all employees who report violations of state and federal laws or otherwise refuse to participate in illegal activity. That section traditionally protected whistleblowers who disclosed information to a government or law enforcement agency, but was amended in 2014 to also protect whistleblowers who disclose information internally to a "person with authority over the employee or to a person who has authority to investigate, discover or correct the alleged violation or noncompliance." Under the recent amendment, a health care practitioner who makes an internal report of illegal activity to his or her supervisor or other hospital administrator may receive the whistleblower protections afforded by Section 1102.5.

These recent decisions and amendments by the judiciary and Legislature offer increased protection for whistleblowers, including doctors and medical staff who report concerns or violations of law related to patient safety. The apparent position taken by the judiciary and Legislature on increasing whistleblower protections in the medical community is also particularly relevant in light of Proposition 46, an initiative on the November ballot that similarly promotes transparency and patient safety by screening physicians for drug and alcohol abuse. Prop. 46 would also require health care practitioners to report any doctor suspected of drug or alcohol impairment or medical negligence.

Health care practitioners now have numerous increased whistleblower protections in place to shield them from retaliation for making such disclosures.


Christian Nickerson is an attorney at Greene Broillet & Wheeler LLP. His trial practice focuses on catastrophic personal injury, wrongful death, municipal liability, insurance bad faith, legal malpractice, and products liability.

Ivan Puchalt is an attorney at Greene Broillet & Wheeler LLP. He specializes in catastrophic personal injury, insurance bad faith, products liability, wrongful death and municipal liability.

Originally published in the Los Angeles Daily Journal, Sept. 25, 2014