CMA files amicus brief in physician whistle-blower case July 25, 2013 General Hospitals and Health Facilities, Peer Review, Legal Advocacy 0 Last week, the California Medical Association (CMA) and the American Medical Association (AMA) filed an amicus curiae brief in the California Supreme Court to urge for broad protection of physician whistleblowers in hospitals. The brief focuses on a medical staff physician’s rights as a whistleblower under Health & Safety Code section 1278.5. In the case, Fahlen v. Sutter Central Valley Hospitals et al., the plaintiff physician alleged that his staff privileges were terminated in retaliation for reporting nursing errors and insubordination to the hospital. He sued the hospital under section 1278.5, which provides that any medical staff member who suffers retaliation can sue for damages and reinstatement of privileges. The statute also creates a presumption, which applies in the case, that adverse action taken within 120 days of a whistleblower complaint was retaliatory. The defendant hospital argued, however, that the action under section 1278.5 was improper because the alleged retaliation involves an adverse peer review decision. The hospital claims that the physician instead must first try to overturn the termination of his privileges through a writ process in which the physician faces evidentiary hurdles and a presumption that the peer review action was correct. Only after that writ process, according to the hospital, can the physician pursue a whistleblower claim. CMA and AMA argue in their amicus brief that physician whistleblower protection is too important to be subsumed under the peer review "exhaustion requirement." They point out that the Legislature provided all health care workers in a hospital the same level of broad and immediate whistleblower protection in order to encourage reporting of patient safety issues in hospitals. Requiring physicians to go through a protracted writ process only thwarts this public policy and effectively denies physicians protection under section 1278.5. The amicus brief asks the state's high court to hold that the peer review "exhaustion requirement" does not apply to whistleblower actions. Click here to read the brief. Contact: CMA's legal information line, (800) 786-4262 or legalinfo@cmanet.org. Comments are closed.
