FAHLEN v. SUTTER CENTRAL VALLEY HOSPITALSRespondent’s Request for Judicial NoticeCal.July 23, 2013No. 8205568 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MARK FAHLEN,M_D., Plaintiff and Respondent, Vv. SUPREME COURT FILED SUTTER CENTRAL VALLEY HOSPITALS, JUL 93 2013 STEVE MITCHELL,et al., Defendants and Appellants. Frank A. McGuire Clerk Deputy After Published Decision by the Court ofAppeal Fifth Appellate District Case No. F063023 DR. FAHLEN’S SECOND REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ANSWERINGBRIEF OF PLAINTIFF AND RESPONDENT; SUPPORTING MEMORANDUM; DECLARATION OF STEPHEN D. SCHEAR STEPHEN D. SCHEAR Attorney at Law (Cal. Bar No. 84806) Law Offices of Stephen D. Schear 2831 Telegraph Avenue Oakland, CA 94609 Phone: (510) 832-3500 Fax: (510) 272-0711 Email: steveschear@gmail.com JENNY HUANG Justice First, LLP Attorney at Law (Cal. Bar No. 223596) 180 Grand Avenue, Suite 1300 Oakland, California 94612 Phone: (510) 628-0695 Fax: (510) Email: jhuang@justicefirstllp.com Attorneys for Plaintiff and Respondent Mark Fahlen, M.D. REQUEST FOR JUDICIAL NOTICE Pursuant to Evidence Codesections 452 and 459, Plaintiff and Respondent Mark Fahlen, M.D. hereby requests that this Court take judicial notice ofthe following documents constituting legislative history of the enactment ofHealth and Safety Code section 1278.5 in 1999: Exhibit 1: Senate Health and HumanServices Committee Analysis of Senate Bill (SB) 97, March 10, 1999.)! Exhibit 2: Senate Appropriations Committee Analysis of SB 97, April 19, 1999. Exhibit 3: Senate Floor Analysis of SB 97, April 22, 1999. Exhibit 4: Assembly Health Committee Analysis of SB 97, June 15, 1999. Exhibit 5: Assembly Appropriations Committee Analysis of SB 97, June 23, 1999. Exhibit 6: Assembly Floor Analysis of SB 97, June 25, 1999? Exhibit 7: Senate Floor Analysis of SB 97, June 30, 1999. The accompanying Memorandumsets forth the grounds for the request and the accompanying Declaration of Stephen D. Schear authenticates the documents and includes the documentsat issue in this request. 1! Exhibit 1 is identical to Exhibit C of Dr. Fahlen’s first Request for Judicial Notice, dated April 3, 2013. It is also included here for the convenience ofthe Court, so that the entire legislative history of SB 97 submitted by Dr. Fahlen is contained in one volume. 2 Exhibit 6 is listed as the Assembly Floor Analysis in the California Legislature’s website, although the documentitself does not so state. See http://www.legislature.ca.gov/cgi-bin/port-postquery?bill_number=sb_97&sess=9 900&house=S&author=burton Dated: July 22, 2013 py: SSeS. Sou Stephén D. Schear Jenny Huang Justice First, LLP Attorneys for Plaintiff and Respondent Mark Fahlen, M.D. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE 1. THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE LEGISLATIVE HISTORYIN EXHIBITS 1 THROUGH7. Exhibits 1 through 7 contain 1999 legislative history of Senate Bill No.97, the bill that became Section 1278.5, as set forth above. In the trial court, Dr. Fahlen requested judicial notice ofthe legislative history ofthe 2007 amendmentto Section 1278.5 which is most pertinent to the question presented here. He did not request judicial notice of the legislative history of the 1999 enactmentofthe bill in the trial court. On or about February 4, 2013, Sutter requested that this Court take judicial notice of additional legislative history concerning both the 1999 passage of SB 97 and the 2007 passage ofAssembly 632, the amendmentto Section 1278.5. Dr. Fahlen did not oppose that request. However, Sutter only included one document from the legislative history of SB 97, the Assembly Health Committee’s Analysis. It did not include other relevant documents from thelegislative history. The legislative history of SB 97 demonstrates the purpose of the bill and the opposition of the California Hospital Association and Kaiser-Permanenteto the bill. It is therefore relevant to the question presented here. Legislative committee reports and analyses are subject to judicial notice under Evidence Codesection 452. (Kaufman v. Broad Communities, Inc. (2005) 133 Cal.App.4th 26, 32.) This Court should take judicial notice ofExhibits 1 through 7 as legislative history relevant to the issues presented here. Dated: July 22, 2013 Respectfully submitted, SAOLo StephenD. Schear Jenny Huang Attorneys for Plaintiff and Respondent Mark Fahlen, M.D. DECLARATION OF STEPHEN SCHEAR I, Stephen D. Schear, declare: 1. Iam an attorney at law duly licensed to practice before the courts of the State of California. I am one ofthe attorneys who represents Plaintiff/Respondent Mark Fahlen, M.D., in this proceeding and I served as counselin all of the proceedings below,including the peer review hearing, the civil case in Stanislaus County Superior Court, and the appeal before the Fifth District Court ofAppeal. I have personal knowledgeofthe following facts, and if called upon as a witness, I could and would testify competently to the contents of this declaration. 3. Attached as Exhibits 1 through 7 are true and accurate copies of documents includedin the legislative history of Senate Bill 1997, from the 1999-2000 regular session of the Legislature. The documents were obtained by mefrom the official website of the California Legislature. I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. Executed on July 22, 2013, at Oakland, California. ~ Stephen D. Schear IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUTTER CENTRAL VALLEY HOSPITALS, STEVE MITCHELL, AND DOES 1-20 Inclusive, Appellants/Defendants, VS. MARK T. FAHLEN,M.D., Respondent/Plaintiff. Case No. 8205568 (Court of Appeal Case No. F063023) (Stanislaus County Superior Court Case No. 662696) [PROPOSED] ORDER ON DR. FAHLEN’S SECOND REQUEST FOR JUDICIAL NOTICE FOR GOOD CAUSE SHOWN,the second Request for Judicial Notice by Respondent Mark Fahien is hereby GRANTEDinits entirety. Dated: , 2013 The Honorable Tani Cantil-Sakauye ChiefJustice ofthe CA Supreme Court SENATE HEALTH AND HUMAN SERVICES COMMITTEE ANALYSIS Senator Martha M. Escutia, Chair BILL NO: |SB 97 | s wooo eee eee eee poco eee eee eee eee eeeeeeeet AUTHOR: {Burton | B elpoe cc er er er rr rrrrrr AMENDED: |As introduced | —_ eee eee ee eK eee poe oooeerr rr rrrrrte HEARING DATE: |March 10, 1999 | 9 adpene ee erb FISCAL: | Appropriations | 7 —_e ee eee eH ee ee eK poe ce rer rrr b | | ee eee ee eee Kee eK poop ep ee en rr rrerrrrtt CONSULTANT: i | | Umino | | | SUBJECT Health Facilities: Retaliation Against Employee or Patient with Grievance SUMMARY This bill prohibits a health facility from discriminating against a patient or employee who presents a grievance or cooperates in any investigation against that facility. ABSTRACT Existing law prohibits 1.An employer from retaliating against an employee who provides information to a government or law enforcement agency about the employer's violation of law or regulation. A violation is considered a misdemeanor and is punishable by (a) imprisonment in the county jail not to exceed one year, (b) a fine not to exceed $1,000, or (c) both. A corporation may be fined up to $5,000. Continued--- STAFF ANALYSIS OF SENATE BILL 97 (Burton) Page 2 2.A long-term health care facility from retaliating or discriminating against an employee or patient, who has filed a grievance, or provided information to a governmental entity relating to care, services, or conditions at that facility. A violation is subject to a civil penalty of not more than $10,000. This bill: 1.Makes findings and declarations to encourage patients, nurses, and other health care workers to notify government entities of suspected unsafe patient care and conditions. 2.Prohibits any health facility from retaliating or discriminating against an employee or patient, who has filed a grievance or provided information to a governmental entity relating to the care, services, or conditions at that facility. 3.Requires a health facility that violates this provision to be subject to a civil penalty of not more than $25,000. 4.Establishes a "rebuttable presumption" that any discriminatory treatment taken by a health facility is retaliatory if it occurs against (a) a patient within 180 days of his/her filing a grievance or complaint or (ob) an employee within 120 days of his/her filing a grievance or complaint. 5.Defines "discriminatory treatment of an employee" to include discharge, demotion, suspension, any other unfavorable changes in employment, or the threat of these actions. 6.Establishes a misdemeanor penalty of up to $20,000 for any person who willfully violates the provisions in this bill. 7.Requires that an employee who has been discriminated against, pursuant to this bill, is entitled to reinstatement, reimbursement for lost wages and benefits, and legal costs associated with pursuing the case. 8.Exempts from the above provisions (a) an inmate of either STAFF ANALYSIS OF SENATE BILL 97 (Burton) Page 3 a Department of Youth Authority or Department of Corrections! correctional facility and (b) a long-term health care facility that is subject to existing law. FISCAL IMPACT Potential costs at state facilities from the General Fund. Both state hospitals and University of California hospitals, which are licensed health facilities owned and operated by the state, would be responsible for paying for fines and civil action incurred from violating provisions in this bill. BACKGROUND AND DISCUSSION Previous legislation includes: (1) AB 3309 (Burton, 1996) which failed passage in the Assembly Health Committee and (2) SB 253 (Burton, 1997) which was vetoed by Governor Wilson because "(t]here is no empirical data to indicate that health facilities workers require a higher level of protection than other employees." Supporters argue: 1.The purpose of this bill is to extend to hospital patients and health care workers the same whistleblower protections that currently apply to long-term care facilities. 2.This bill would help protect nurses and patients who complain about possible unsafe patient care in hospitals. 3.Retaliatory actions against patients, nurses and other health care workers are on the increase. Nurses working in hospitals and other health care facilities who report unsafe patient care or conditions put their own jobs at risk and, therefore, are afraid to speak out. 4.Existing laws are so vague and general that they do not protect patients and employees in hospitals. Opponents argue: 1.Retaliation against a whistleblower is already a crime that is subject to penalties. Employees who are subjects of retaliation can go to the Department of Industrial Relations, Division of Labor Standards Enforcement or to the courts for relief. STAFF ANALYSIS OF SENATE BILL 97 (Burton) Page 4 2."Rebuttable presumption" is bad public policy. By creating the legal presumption that a hospital is guilty of retaliation unless it can prove itself innocent, this bill tilts the process in favor of one of the parties in a dispute. Furthermore, rebuttable presumption in this bill will have an adverse impact on patient care, if swift action cannot be taken against an incompetent employee. 3.This bill encourages an incompetent employee to file a frivolous complaint against a hospital due to the protections provided in this bill. 4.This bill creates no corresponding penalties for employees who willfully or negligently misuse the process for their own purposes. The California Department of Health Services (DHS) reports: 1.An annual average of 11,000 complaints against all types of health facilities, including long-term care facilities and hospitals. An estimated 7,000 complaints per year are against long-term care facilities. 2.In fiscal year 1997-98, DHS issued 1,258 citations against long-term care facilities. One of these citations was against a long-term care facility for retaliation and discrimination against an employee. 3.DHS staff indicates that they receive a number of retaliation complaints against health care facilities, other than long-term care facilities, but without statutory authority they cannot follow-up on them. POSITIONS Support: California Nurses Association (sponsor) California School Employees Association Congress of California Seniors Oppose: California Healthcare Association Kaiser Permanente Medical Care Program STAFF ANALYSIS OF SENATE BILL 97 (Burton) Page 5 -- END Appropriations Committee Fiscal Summary SB 97 (Burton) Hearing Date:4/19/99 Amended : 3/22/99 Consultant: David Maxwell-Jolly Policy Vote:H&HS 6-2 BILL SUMMARY: SB 97: Prohibits retaliation or discrimination against a health facility employee, patient, or any other person who files a grievance or complaint with a licensing agency or cooperates in any investigation or proceedings of a governmental entity related to the care, services, or conditions in the facility. Retaliation is defined as discharge, demotion, suspension, or any other unfavorable change in the terms or conditions of employment, or the threat of any of these actions. Establishes a rebuttable presumption that certain actions against a health facility employee or patient are retaliation by the employer if taken within 180 days of the employee's or patient's filing of the complaint. Establishes a civil penalty for the health facility (fine of up to $25,000) and a misdemeanor for a person who willfully retaliates (fine of up to $20,000). Fiscal Impact (in thousands) Major Provisions 1998-99 1999-2000 2000-01| Fund — nl Civil penalties unknown potential penalties STAFF COMMENTS: Both state hospitals and UC hospitals are licensed health facilities owned and operated by the state. Operating departments or UC would be responsible for paying any fines if health facility supervisors violate these provisions and the civil action succeeds against the state. |SENATE RULES COMMITTEE | |Office of Senate Floor Analyses | J1020 N Street, Suite 524 | | (916) 445-6614 Fax: (916) | [327-4478 | THIRD READING Bill No: SB 97 Author: Burton (D), et al Amended: 3/22/99 Vote: 21 SENATE HEALTH & HUMAN SERV. COMMITTEE : 6-2, 3/10/99 AYES: Escutia, Figueroa, Hughes, Polanco, Solis, Vasconcellos NOES: Morrow, Mountjoy NOT VOTING: Haynes SENATE APPROPRIATIONS COMMITTEE : 8-0, 4/19/99 AYES: Johnston, Alpert, Bowen, Burton, Karnette, Mountjoy, Perata, Vasconcellos NOT VOTING: Escutia, Johnson, Kelley, Leslie, McPherson SUBJECT: Health facilities: retaliation against employee or patient with grievance SOURCE: California Nurses Association DIGEST_ : This bill prohibits a health facility from discriminating against a patient or employee who presents a grievance or cooperates in any investigation against that facility. ANALYSIS Existing law prohibits: 1.An employer from retaliating against an employee who CONTINUED _SB 97 Page 2 provides information to a government or law enforcement 2 agency about the employer's violation of law or regulation. A violation is considered a misdemeanor and is punishable by (a) imprisonment in the county jail not to exceed one year, (b) a fine not to exceed $1,000, or (c) both. A corporation may be fined up to $5,000. -A long-term health care facility from retaliating or discriminating against an employee or patient, who has filed a grievance, or provided information to a governmental entity relating to care, services, or conditions at that facility. A violation is subject toa civil penalty of not more than $10,000. This bill: 1. w | Makes findings and declarations to encourage patients, nurses, and other health care workers to notify government entities of suspected unsafe patient care and conditions. .Prohibits any health facility from retaliating or discriminating against an employee or patient, who has filed a grievance or provided information to a governmental entity relating to the care, services, or conditions at that facility. Requires a health facility that violates this provision to be subject to a civil penalty of not more than $25,000. .Establishes a "rebuttable presumption" that any discriminatory treatment taken by a health facility is retaliatory if it occurs against (a) a patient within 180 days of his/her filing a grievance or complaint or (b) an employee within 120 days of his/her filing a grievance or complaint. .Defines "discriminatory treatment of an employee" to include discharge, demotion, suspension, any other unfavorable changes in employment, or the threat of these actions. .Establishes a misdemeanor penalty of up to $20,000 for SB 97 Page any person who willfully violates the provisions in this bill. .Requires that an employee who has been discriminated against, pursuant to this bill, is entitled to reinstatement, reimbursement for lost wages and benefits, and legal costs associated with pursuing the case. .Exempts from the above provisions (a) an inmate of either a Department of Youth Authority or Department of Corrections! correctional facility and (b) a long-term health care facility that is subject to existing law. 9.Provides that nothing in the bill abbrogates or limits any other theory of liability or remedy otherwise available in law. Comments The California Department of Health Services (DHS) reports: 1.An annual average of 11,000 complaints against all types of health facilities, including long-term care facilities and hospitals. An estimated 7,000 complaints per year are against long-term care facilities. 2.In fiscal year 1997-98, DHS issued 1,258 citations against long-term care facilities. One of these citations was against a long-term care facility for retaliation and discrimination against an employee. 3.DHS staff indicates that they receive a number of retaliation complaints against health care facilities, other than long-term care facilities, but without statutory authority they cannot follow-up on them. Prior legislation AB 3309 (Burton, 1996), which failed passage in the Assembly Health Committee. SB 253 (Burton, 1997), which was vetoed by Governor Wilson because "[t]here is no empirical data to indicate that health facilities workers require a higher level of _SB 97 _ Page 4 protection than other employees." It passed the Senate 21-15 - Noes: Brulte, Haynes, Hurtt, Johannessen, Johnson, Kelley, Knight, Kopp, Leslie, Lewis, McPherson, Monteith, Mountjoy, Rainey and Wright. FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes According to Senate Appropriations Committee analysis: Fiscal Impact (in thousands) Major Provisions 1998-99 1999-2000 2000-01 Fund Civil penalties unknown potential penalties STAFF COMMENTS: Both state hospitals and University of California (UC) hospitals are licensed health facilities owned and operated by the state. Operating departments or UC would be responsible for paying any fines if health facility supervisors violate these provisions and the civil action succeeds against the state. SUPPORT: (Verified 4/20/99) California Nurses Association (source) California School Employees Association Congress of California Seniors Health Access Service Employees International Union (SEIU) AARP California Association of Medical Laboratory Technology Emergency Nurses Association of California Little Hoover Commission California Resources for Independent Living Engineers and Scientists of California Region 8 States Council of the United Food and Commercial Workers Hotel Employees, Restaurant Employees International Union SB 97 _ Page 5 California Conference of Machinists California Labor Federation, AFL-CIO Older Women's League of California Consumer Attorneys of California California Conference Board, Amalgamated Transit Union American Nurses Association/California American Federation of State, County and Municipal Employees, AFL-CIO OPPOSITION : (Verified 4/20/99) California Healthcare Association Kaiser Permanente Medical Care Program United Hospital Association California Dialyses Council California Association of Catholic Hospitals ARGUMENTS IN SUPPORT : Supporters argue: 1.The purpose of this bill is to extend to hospital patients and health care workers the same whistleblower protections that currently apply to long-term care facilities. 2.This bill would help protect nurses and patients who complain about possible unsafe patient care in hospitals. 3.Retaliatory actions against patients, nurses and other health care workers are on the increase. Nurses working in hospitals and other health care facilities who report unsafe patient care or conditions put their own jobs at risk and, therefore, are afraid to speak out. 4.Existing laws are so vague and general that they do not protect patients and employees in hospitals. ARGUMENTS IN OPPOSITION : Opponents argue: _1.Retaliation against a whistleblower is already a crime that is subject to penalties. Employees who are subjects of retaliation can go to the Department of Industrial Relations, Division of Labor Standards Enforcement or to the courts for relief. SB 97 _ Page 6 2."Rebuttable presumption" is bad public policy. By creating the legal presumption that a hospital is guilty of retaliation unless it can prove itself innocent, this bill tilts the process in favor of one of the parties in a dispute. Furthermore, rebuttable presumption in this bill will have an adverse impact on patientcare, if swift action cannot be taken against an incompetent employee. 3.This bill encourages an incompetent employee to file a frivolous complaint against a hospital due to the protections provided in this bill. 4.This bill creates no corresponding penalties for employees who willfully or negligently misuse the process for their own purposes. CP:sl 4/22/99 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE KKKK END kKkKKK _SB_97 Page 1 Date of Hearing: June 15, 1999 ASSEMBLY COMMITTEE ON HEALTH Martin Gallegos, Chair SB 97 (Burton) - As Amended: June 8, 1999 SENATE VOTE : 24-14 SUBJECT : Health facilities: protection of whistle blowers. SUMMARY : Prohibits a health facility from discriminating against a patient or employee who presents a grievance or cooperates in any investigation against that facility. Specifically, _this bill 1)Makes findings and declarations to encourage patients, nurses, and other health care workers to notify government entities of suspected unsafe patient care and conditions. 2)Prohibits any health facility from retaliating or discriminating against an employee or patient who has filed a grievance or provided information to a governmental entity relating to the care, services, or conditions at that facility. 3)Requires a health facility that violates this provision to be subject to a civil penalty of not more than $25,000. 4)Establishes a “rebuttable presumption" that any discriminatory treatment taken by a health facility is retaliatory if it occurs against a patient within 180 days of his/her filing a grievance or complaint or an employee within 120 days of his/her filing a grievance or complaint. 5)Defines "discriminatory treatment of an employee" to include discharge, demotion, suspension, any other unfavorable changes in employment, or the threat of these actions. 6)Establishes a misdemeanor penalty of up to $20,000 for any person who willfully violates the provisions in this bill. 7)Requires that an employee who has been discriminated against, pursuant to this bill, is entitled to reinstatement, reimbursement for lost wages and benefits, and legal costs associated with pursuing the case. SB 97 Page 2 8)Exempts an inmate of a correctional facility of the Department of the Youth Authority or the Department of Corrections, or an inmate housed in a local detention facility, as specified, from the provisions of this bill. 9)Exempts a long-term health care facility, whose employees and patients are subject to similar protections, from the provisions of this bill. 10) Provides that nothing in this bill abrogates or limits any other theory of liability or remedy otherwise available in law. EXISTING LAW 1) Prohibits an employer from retaliating against an employee who provides information to a government or law enforcement agency about the employer's violation of law or regulation. A violation is considered a misdemeanor and is punishable by imprisonment in the county jail not to exceed one year, a fine not to exceed $1,000, or both. A corporation may be fined up to $5,000. 2) Prohibits a long-term health care facility from retaliating or discriminating against an employee or patient who has filed a grievance, or provided information to a governmental entity, relating to care, services, or conditions at that facility. A violation is subject to a civil penalty of not more than $10,000. FISCAL EFFECT : According to the Senate Appropriations Committee analysis, both state hospitals and University of California (UC) hospitals, owned and operated by the state, would be responsible for paying any fines if health facility personnel violate these provisions and a civil action succeeds against the state. COMMENTS 1) PURPOSE OF THIS BILL . The Nurses Association (CNA) is the sponsor of this bill. According to materials submitted by the author and sponsor, this bill would extend the same protections in place for retaliatory actions by long-term health care facilities to the employees and patients of acute SB 97 Page 3 care facilities. Current law has been in effect for over 20 years and the number of complaints has been very small. Employees and patients blow the whistle on unsafe practices and issues relating to patient endangerment after they have pursued their complaints with hospital administrators. Without protection, employees must weigh whether or not they should sacrifice their jobs and patients worry that they will be denied health care services. Further, nurses are required by statute to serve as patient advocates. If a nurse believe s that a hospital practice, an unsafe doctor or other conditions jeopardize patients, the nurse is required to act to protect patients. In some cases, nurses are required to choose between losing their job or losing their license. 2)BACKGROUND . The Department of Health Services (DHS) reports an annual average of 11,000 complaints against all types of health facilities, including long-term care facilities and hospitals. An estimated 7,000 complaints per year are against long-term care facilities. In fiscal year 1997-98, DHS issued 1,258 citations against long-term care facilities. One of these citations was against a long-term care facility for retaliation and discrimination against an employee. DHS staff indicates that they receive a number of retaliation complaints against health care facilities, other than long-term care facilities, but without statutory authority DHS cannot follow-up on these types of complaints. 3)SUPPORT . The American Association of Retired Persons (AARP) supports this bill stating that health plans should be prohibited from retaliating against providers or health care workers if they, reasonably and in good faith, report quality concerns to appropriate governmental agencies or the appropriate management official. Health Access California writes that this bill provides important consumer protections by allowing whistle-blowers in hospitals to speak out about conditions without fear of retribution. Today, patients, their families and workers rightly fear that hospital managers May act against them if they reveal serious problems concerning hospital care. 4)OPPOSITION . The California Healthcare Association (CHA) opposes this bill. CHA states that retaliation against a whistle-blower is already a crime under the Labor Code and that existing protections are already very broad. CHA additionally states that by creating the legal presumption SB 97 Page 4 that a hospital is guilty of retaliation unless it can prove itself innocent, this bill tilts the process in favor of one of the parties in the dispute and as such this bill will encourage incompetent employees to file frivolous complaints. Kaiser Permanente also opposes this bill, stating that it will significantly increase the number of legal actions against health benefit providers such as Kaiser, resulting in a dramatic increase in the cost of legal defense. Kaiser also states that the Labor Code prohibits employers from retaliating against employees and that DHS is required, under existing law, to keep confidential the identities of employees who file complaints against hospitals. 5) PREVIOUS LEGISLATION . This bill is similar to AB 3309 (Burton) of 1996, which failed passage in the Legislature and SB 253 (Burton) of 1997, which was vetoed by Governor Wilson. In his veto message, Governor Wilson stated "[t]here is no empirical data to indicate that health facilities workers require a higher level of protection than other employees." REGISTERED SUPPORT / OPPOSITION Support California Nurses Association (sponsor) American Association of Retired Persons American Federation of State, County and Municipal Employees, AFL-CIO American Nurses Association/California California Association of Medical Laboratory Technology California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Labor Federation, AFL-CIO California Resources for Independent Living California School Employees Association Congress of California Seniors Consumer Attorneys of California Emergency Nurses Association of California Engineers and Scientists of California Health Access California Hotel Employees, Restaurant Employees International Union Little Hoover Commission Older Women's League of California Region 8 States Council of the United Food and Commercial Workers _SB_97 Page 5 Resources for Independent Living, Inc. Service Employees International Union 1 Registered Nurse Opposition California Association of Catholic Hospitals California Chamber of Commerce California Dialyses Council California Healthcare Association Kaiser Permanente Medical Care Program United Hospital Association Analysis Prepared by : Ellen McCormick / HEALTH / (916) 319-2097 SB 97 Page 1 Date of Hearing: June 23, 1999 ASSEMBLY COMMITTEE ON APPROPRIATIONS Carole Migden, Chairwoman SB 97 (Burton) - As Amended: June 8, 1999 Policy Committee: Health Vote:9 - 4 Urgency: No State Mandated Local Program: YesReimbursable: - SUMMARY This bill prohibits a health facility from discriminating against a patient or employee who presents a grievance or cooperates in any investigation against that facility. The bill establishes a "rebuttable presumption" that any discriminatory action taken by a health facility is retaliatory if it occurs against a patient within 180 days of the filing a grievance or complaint or an employee within 120 days of such a filing. The bill establishes civil penalties and makes violations of its provisions punishable as a misdemeanor. FISCAL EFFECT The bill could result in additional civil penalties against the state, probably minor, to the extent proceedings are brought under the bill against the state regarding employees of state hospitals, developmental centers, and hospitals operated by the University of California. COMMENTS 1)Purpose of the Bill. According to the sponsor, the California Nurses Association, this bill extends current protections for retaliatory actions by long-term health care facilities to employees and patients of acute care facilities. The sponsor argues that without protection, employees must weigh whether or not they should sacrifice their jobs to expose practices that endanger patients. The Department of Health Services (DHS) indicates an average 11,000 complaints against health facilities, including SB 97 Page 2 long-term care facilities and hospitals, are filed annually. An estimated 7,000 complaints per year are against long-term care facilities. In fiscal year 1997-98, DHS issued 1,258 citations against long-term care facilities. One of these citations was against a long-term care facility for retaliation and discrimination against an employee. DHS staff indicate they receive a number of retaliation complaints against health care facilities, other than long-term care facilities, but without statutory authority, they cannot follow-up on these complaints. 2)Opposition . The California Healthcare Association, representing hospitals, opposes this bill, arguing that retaliation against a whistle-blower is already a crime and that existing protections are therefore sufficient. The association also argues that by creating the legal presumption that a hospital is guilty of retaliation unless it can prove itself innocent, the bill tilts the process unfairly in favor of one of the parties, thereby encouraging frivolous litigation. 3)Prior Legislation . This bill is similar to AB 3309 (Burton) of 1996, which failed passage, and SB 253 (Burton) of 1997, which was vetoed by Governor Wilson. In his veto message, Governor Wilson stated "[t]here is no empirical data to indicate that health facilities workers require a higher level of protection than other employees." 4)Analysis Prepared by: William Wehrle / APPR. / (916) 319-2081 _SB_97 Page 1 SENATE THIRD READING SB 97 (Burton) As Amended June 8, 1999 Majority vote SENATE VOTE 224-14 _ HEALTH 9-4 APPROPRIATIONS 11-7 |Ayes:|Gallegos, Corbett, JAyes:|Migden, Kuehl, Papan, | |Firebaugh, Kuehl, | |Romero, Shelley, | |Steinberg, Thomson, | |Steinberg, Thomson, | |vincent, Wayne, Wildman | |Wesson, Wiggins, Wright, | || | Corbett |-----a to---- poor cc neeee-e |Nays:|Strickland, Aanestad, |Nays:|Brewer, Ackerman, | |Bates, Zettel | |Ashburn, Campbell, | { |Maldonado, Runner, Briggs weann SUMMARY : Prohibits a health facility from discriminating against a patient or employee who presents a grievance or cooperates in any investigation against that facility. Specifically, _this bill 1)Makes findings and declarations to encourage patients, nurses, and other health care workers to notify government entities of suspected unsafe patient care and conditions. 2)Prohibits any health facility from retaliating or discriminating against an employee or patient who has filed a grievance or provided information to a governmental entity relating to the care, services, or conditions at that facility. Requires a health facility that violates this provision to be subject to a civil penalty of not more than $25,000 and establishes a misdemeanor penalty of up to $20,000 for any person who willfully violates the provisions in this bill. 3)Establishes a "rebuttable presumption" that any discriminatory treatment taken by a health facility is retaliatory if it occurs against a patient within 180 days of filing a grievance or complaint or an employee within 120 days of filing a grievance or complaint. _SB_97 Page 2 4)Defines "discriminatory treatment of an employee" to include discharge, demotion, suspension, any other unfavorable changes in employment, or the threat of these actions. 5)Requires that an employee who has been discriminated against, pursuant to this bill, is entitled to reinstatement, reimbursement for lost wages and benefits, and legal costs associated with pursuing the case. 6)Exempts an inmate of a correctional facility of the Department of the Youth Authority or the Department of Corrections, or an inmate housed in a local detention facility, as specified, from the provisions of this bill. Exempts a long-term heaith care facility, whose employees and patients are subject to similar protections, from the provisions of this bill. 7) Provides that nothing in this bill abrogates or limits any other theory of liability or remedy otherwise available in law. EXISTING LAW 1) Prohibits an employer from retaliating against an employee who provides information to a government or law enforcement agency about the employer's violation of law or regulation. A violation is considered a misdemeanor and is punishable by imprisonment in the county jail not to exceed one year, a fine not to exceed $1,000, or both. A corporation may be fined up to $5,000. 2) Prohibits a long-term health care facility from retaliating or discriminating against an employee or patient who has filed a grievance, or provided information to a governmental entity, relating to care, services, or conditions at that facility. A violation is subject to a civil penalty of not more than $10,000. FISCAL EFFECT : According to the Assembly Appropriations Committee analysis, this bill could result in additional civil penalties against the state, probably minor, to the extent proceedings are brought under this bill against the state regarding employees of state hospitals, developmental centers, and hospitals operated by the University of California. COMMENTS : California Nurses Association (CNA) is the sponsor of _SB 97 Page 3 this bill. The author states this bill would simply extend existing protections for retaliatory actions by long-term hea lth care facilities to the employees and patients of acute care facilities. CNA argues that employees and patients report unsafe practices and patient endangerment after they have pursued complaints with hospital administrators and that w ithout protection, employees must weigh whether or not th ey should sacrifice their jobs and patients must weigh whether the ir health care services will be compromised. Further, nu rses are required by statute to serve as patient advocates. If a nurse believes that a hospital situation will jeopardize patients, the nurse is required to act. In some cases, nurses must choose between losing their job or losing their license. The Department of Health Services (DHS) reports an annual average of 11,000 complaints against all types of health facilities, including long-term care facilities and hospitals, an estimated 7,000 of those complaints are against long-term care facilities. DHS indicates that they receive a number of retaliation complaints against health care facilities, other than long-term care facilities, but without statutory authority DHS cannot follow-up on these types of complaints. The American Association of Retired Persons (AARP) supports this bill stating that health plans should be prohibited from retaliating against providers or health care workers if they, reasonably and in good faith, report quality concerns to appropriate governmental agencies or the appropriate management official. Health Access California writes that this bill provides important consumer protections by allowing whistle-blowers in hospitals to speak out about conditions without fear of retribution. The California Healthcare Association (CHA) opposes this bill, stating that retaliation against a whistle-blower is already a crime under the Labor Code and that existing protections are already very broad. CHA additionally states that by creating the legal presumption that a hospital is guilty of retaliation unless it can prove itself innocent, this bill tilts the process in favor of one of the parties in the dispute and as such this bill will encourage incompetent employees to file frivolous complaints. Kaiser Permanente also opposes this bill, stating that it will significantly increase the number of legal actions against health benefit providers such as Kaiser, resulting ina dramatic increase in the cost of legal defense. Kaiser also states that the Labor Code prohibits employers from retaliating against employees and that DHS is required, under existing law, _SB_97 Page 4 to keep confidential the identities of employees who file complaints against hospitals. Analysis Prepared by : Ellen McCormick / HEALTH / (916) 319-2097 FN: 0001806 |SENATE RULES COMMITTEE | jOffice of Senate Floor Analyses { {1020 N Street, Suite 524 | (916) 445-6614 Fax: (916) | {327-4478 | UNFINISHED BUSINESS Bill No: SB 97 Author: Burton (D), et al Amended: 6/8/99 Vote: 21 SENATE HEALTH & HUMAN SERV. COMMITTEE : 6-2, 3/10/99 AYES: Escutia, Figueroa, Hughes, Polanco, Solis, Vasconcellos NOES: Morrow, Mountjoy NOT VOTING: Haynes SENATE APPROPRIATIONS COMMITTEE : 8-0, 4/19/99 AYES: Johnston, Alpert, Bowen, Burton, Karnette, Mountjoy, Perata, Vasconcellos NOT VOTING: Escutia, Johnson, Kelley, Leslie, McPherson SENATE FLOOR : 24-14, 5/10/99 AYES: Alarcon, Alpert, Baca, Bowen, Burton, Chesbro, Costa, Dunn, Escutia, Figueroa, Hayden, Hughes, Johnston, Karnette, Murray, O'Connell, Ortiz, Peace, Perata, Polanco, Schiff, Sher, Speier, Vasconcellos NOES: Brulte, Haynes, Johannessen, Johnson, Kelley, Knight, Leslie, Lewis, Monteith, Morrow, Mountjoy, Poochigian, Rainey, Wright NOT VOTING: McPherson, Solis ASSEMBLY FLOOR : 46-26, 6/28/99 - See last page for vote SUBJECT: Health facilities: retaliation against employee or patient with grievance SOURCE: California Nurses Association CONTINUED SB 97 Page N | DIGEST: This bill prohibits a health facility from discriminating against a patient or employee who presents a grievance or cooperates in any investigation against that facility. Assembly Amendments add inmates housed in local detention facilities including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility to those exempted from the provisions of the bill. ANALYSIS Existing law prohibits: 1.An employer from retaliating against an employee who provides information to a government or law enforcement agency about the employer's violation of law or regulation. A violation is considered a misdemeanor and is punishable by (a) imprisonment in the county jail not to exceed one year, (b) a fine not to exceed $1,000, or (c) both. A corporation may be fined up to $5,000. 2.A long-term health care facility from retaliating or discriminating against an employee or patient, who has filed a grievance, or provided information to a governmental entity relating to care, services, or conditions at that facility. A violation is subject toa civil penalty of not more than $10,000. This bill: 1.Makes findings and declarations to encourage patients, nurses, and other health care workers to notify government entities of suspected unsafe patient care and conditions. 2.Prohibits any health facility from retaliating or discriminating against an employee or patient, who has filed a grievance or provided information to a governmental entity relating to the care, services, or conditions at that facility. _SB_97 Page w | 3.Requires a health facility that violates this provision to be subject to a civil penalty of not more than $25,000. 4.Establishes a "rebuttable presumption" that any discriminatory treatment taken by a health facility is retaliatory if it occurs against (a) a patient within 180 days of his/her filing a grievance or complaint or (b) an employee within 120 days of his/her filing a grievance or complaint. 5.Defines "discriminatory treatment of an employee" to include discharge, demotion, suspension, any other unfavorable changes in employment, or the threat of these actions. 6.Establishes a misdemeanor penalty of up to $20,000 for any person who willfully violates the provisions in this bill. 7.Requires that an employee who has been discriminated against, pursuant to this bill, is entitled to reinstatement, reimbursement for lost wages and benefits, and legal costs associated with pursuing the case. 8.Exempts from the above provisions (a) an inmate of either a Department of Youth Authority or Department of Corrections! correctional facility or to an inmate housed in a local detention facility and (b) a long-term health care facility that is subject to existing law. 9.Provides that nothing in the bill abbrogates or limits any other theory of liability or remedy otherwise available in law. Comments The California Department of Health Services (DHS) reports: 1.An annual average of 11,000 complaints against all types of health facilities, including long-term care facilities and hospitals. An estimated 7,000 complaints per year are against long-term care facilities. SB 97 Page | 2.In fiscal year 1997-98, DHS issued 1,258 citations against long-term care facilities. One of these citations was against a long-term care facility for retaliation and discrimination against an employee. 3.DHS staff indicates that they receive a number of retaliation complaints against health care facilities, other than long-term care facilities, but without statutory authority they cannot follow-up on them. Prior legislation AB 3309 (Burton, 1996), which failed passage in the Assembly Health Committee. SB 253 (Burton, 1997), which was vetoed by Governor Wilson because "[t]here is no empirical data to indicate that health facilities workers require a higher level of protection than other employees." It passed the Senate 21-15 - Noes: Brulte, Haynes, Hurtt, Johannessen, Johnson, Kelley, Knight, Kopp, Leslie, Lewis, McPherson, Monteith, Mountjoy, Rainey and Wright. FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes According to Senate Appropriations Committee analysis: Fiscal Impact (in thousands) Major Provisions 1998-99 1999-2000 2000-01 Fund Civil penalties unknown potential penalties STAFF COMMENTS: Both state hospitals and University of California (UC) hospitals are licensed health facilities owned and operated by the state. Operating departments or UC would be responsible for paying any fines if health facility supervisors violate these provisions and the civil action SB 97 _ Page 5 succeeds against the state. SUPPORT : (Verified 6/28/99) California Nurses Association (source) California School Employees Association Congress of California Seniors Health Access Service Employees International Union (SEIU) AARP California Association of Medical Laboratory Technology Emergency Nurses Association of California Little Hoover Commission California Resources for Independent Living Engineers and Scientists of California Region 8 States Council of the United Food and Commercial Workers Hotel Employees, Restaurant Employees International Union California Conference of Machinists California Labor Federation, AFL-CIO Older Women's League of California Consumer Attorneys of California California Conference Board, Amalgamated Transit Union American Nurses Association/California american Federation of State, County and Municipal Employees, AFL-CIO OPPOSITION. : (Verified 6/28/99) California Healthcare Association Kaiser Permanente Medical Care Program United Hospital Association California Dialyses Council California Association of Catholic Hospitals ARGUMENTS IN SUPPORT : Supporters argue: 1. 2. 6 3. 4. The purpose of this bill is to extend to hospital patients and health care workers the same whistleblower protections that currently apply to long-term care facilities. This bill would help protect nurses and patients who complain about possible unsafe patient care in hospitals. _SB 97 Page Retaliatory actions against patients, nurses and other health care workers are on the increase. Nurses working in hospitals and other health care facilities who report unsafe patient care or conditions put their own jobs at risk and, therefore, are afraid to speak out. Existing laws are so vague and general that they do not protect patients and employees in hospitals. ARGUMENTS IN OPPOSITION : Opponents argue: 2. 3. 4. 1.Retaliation against a whistleblower is already a crime that is subject to penalties. Employees who are subjects of retaliation can go to the Department of Industrial Relations, Division of Labor Standards Enforcement or to the courts for relief. "Rebuttable presumption" is bad public policy. By creating the legal presumption that a hospital is guilty of retaliation unless it can prove itself innocent, this bill tilts the process in favor of one of the parties in a dispute. Furthermore, rebuttable presumption in this bill will have an adverse impact on patient care, if swift action cannot be taken against an incompetent employee. This bill encourages an incompetent employee to file a frivolous complaint against a hospital due to the protections provided in this bill. This bill creates no corresponding penalties for employees who willfully or negligently misuse the proce ss for their own purposes. ASSEMBLY FLOOR AYES: Alquist, Aroner, Bock, Calderon, Cardenas, Cardoza, Corbett, Correa, Davis, Dutra, Firebaugh, Florez, Floyd, Gallegos, Havice, Hertzberg, Honda, Jacks on, Keeley, Knox, Kuehl, Lempert, Leonard, Longville, Lowenthal, Machado, Mazzoni, Migden, Nakano, Papan, Rey es, Scott, Shelley, Soto, Steinberg, Strom-Martin, Thomson, Torlakson, Vincent, Washington, Wayne, Wesson, Wiggins, Wildman, Wright, Villaraigosa SB 97 _ Page 7 NOES: Aanestad, Ackerman, Ashburn, Baldwin, Bates, Battin, Baugh, Brewer, Briggs, Campbell, Cox, Dickerson, Frusetta, House, Maddox, Maldonado, Margett, McClintock, Olberg, Oller, Robert Pacheco, Pescetti, Runner, Strickland, Thompson, Zettel NOT VOTING: Cedillo, Cunneen, Ducheny, Granlund, Kaloogian, Leach, Rod Pacheco, Romero CP:sl 6/29/99 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE KKKK END KKEKK DECLARATION OF SERVICE Re: Fahlen v. Sutter Central Valley Hospitals, et al. No. 8205568 Court of Appeal No. F063023 I declare that I am over 18 years of age, and not a party to the within cause; my business address is 2831 Telegraph Avenue, Oakland, California, 94609. I served a true copyofthe attached: DR. FAHLEN’S SECOND REQUEST FOR JUDICIAL NOTICE on each of the following, by placing same in an envelope (or envelopes) addressed (respectively) as follows: Joseph M. Quinn HANSONBRIDGETT, LLP 425 Market St., 26"flr. San Francisco, CA 94105 Court ofAppeal of California Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 The Honorable Timothy W.Salter Department 22 Stanislaus Superior Court 801 10" Street Modesto, CA 95353 Mark Kadzieliski Fulbright & Jaworski LLP 555 S. Flower St., 41% Floor Los Angeles, CA 90071 Attorney for Amicus Curiae Kaiser Foundation Hospitals DavidS. Ettinger Horwitz & Levy, LLP 15760 Ventura Boulevard, 18" fir. Encino, CA 91436-3000 Attorney for Amici Curiae Good Samaritan Hospital, P.P., Los Robles Medical Center, San Jose Medical Center, San Jose Healthcare System, L.P., West Hills Hospital, Tenet Healthcare Corporation Lowell C. Brown Arent Fox, LLP 555 W.Fifth Street, 48" flr. Los Angeles, CA 90013-1065 Attorneys for Amicus Curiae California Hospital Association Jana N. DuBois California Hospital Association 1215 K Street, Suite 800 Sacramento, CA 95814 Attorney for Amicus Curiae California Hospital Association Carlo Coppo DiCaro, Coppo & Popcke 2780 Gateway Road Carlsbad, CA 92009 Attorney for Amicus Curiae BETAHealthcare Group Long Do California Medical Association 1201 J Street, Suite 200 Sacramento, CA 95814 Attorney for Amicus Curiae California Medical Association and American Medical Association Barry S. Landsberg Manatt, Phelps & Phillips, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064-1614 Attorney for Amici Curiae Dignity Health and Adventist Health System/West The envelope was then, on July 22, 2013, sealed and deposited with the U.S. Postal service for priority mail delivery. I declare under penalty of perjury that the foregoing is true and correct. Executed at Oakland, California, this July 22, 2013. ~ Stephen D. Schear
