California Whistleblower Statutes and Tameny Claims California has several statutes under which employees could potentially make a whistleblower or retaliation claim, some of which are specific to health care workers. These statutes include the following:California Health and Safety Code § 1278.5, which was enacted to “encourage . . . nurses, members of medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions.” Health & Saf. Code § 1278.5(a).

California Whistleblower Statutes and Tameny Claims California has several statutes under which employees could potentially make a whistleblower or retaliation claim, some of which are specific to health care workers. These statutes include the following:California Health and Safety Code § 1278.5, which was enacted to “encourage . . . nurses, members of medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions.” Health & Saf. Code § 1278.5(a).

Recent Case Examples From California Outside the context of state peer review immunity statutes, however, the issue of HCQIA preemption has received far less attention.4 Two recent cases from California have acknowledged, without directly addressing, the issue of HCQIA preemption within the context of medical professional whistleblower protection statutes. The statute in question in both decisions, California Health and Safety Code Section 1278.5 ("Section 1278.5"), authorizes a physician to sue a hospital or medical staff for monetary damages5 stemming from the hospital or medical staff's "discriminatory treatment"6 of the physician.

Recent Case Examples From California Outside the context of state peer review immunity statutes, however, the issue of HCQIA preemption has received far less attention.4 Two recent cases from California have acknowledged, without directly addressing, the issue of HCQIA preemption within the context of medical professional whistleblower protection statutes. The statute in question in both decisions, California Health and Safety Code Section 1278.5 ("Section 1278.5"), authorizes a physician to sue a hospital or medical staff for monetary damages5 stemming from the hospital or medical staff's "discriminatory treatment"6 of the physician.

Some background: California has a well-established program whereby hospitals, medical staffs and other health provider organizations can discipline and even remove medical practitioners from their medical staffs through a peer review process. Providers subject to that process are entitled to only limited review in the courts,2 and are essentially barred by res judicata and collateral estoppel from challenging such procedures in other ways.3 On the other hand, California has long encouraged and protected whistleblowers.4 In 2007, the Legislature created a direct conflict between these two legal principles when it amended Cal. Health & Safety Code § 1278.5, the ‘‘healthcare whistleblower statute,'' to provide that ‘‘no health care facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker, . . . because that person has . . . [p]resented a grievance, complaint or report to the facility . . . or the medical staff of the facility, or any other governmental entity.''5 This law gave physicians a chance to counter contemplated or actual disciplinary actions by contending that those actions were taken in retaliation for their complaints about poor patient care or like matters.

According to Fahlen, the hospital’s administration blamed him for the confrontations and he eventually lost his staff privileges. Fahlen sued the hospital for retaliation under California Health and Safety Code section 1278.5. The hospital asked the court to dismiss Fahlen’s case on the basis that he failed to exhaust his judicial remedies by way of a mandamus proceeding to set aside the decision by the hospital’s board of trustees.

Dr. Bonni sued the parent health system, both hospitals and eight individual doctors, alleging in part that the suspension, termination and denial of his privileges were retaliation due to his complaining about patient safety issues. Generally, individual healthcare providers are protected from retaliation for raising patient safety issues under Cal. Health & Saf. Code § 1278.5. Dr. Bonni alleged 16 different types of conduct supporting this retaliation claim, including the suspension, termination and denial of his privileges, as well as statements made at peer review hearings and the reporting of his suspension to the Medical Board of California.As all the conduct alleged by Dr. Bonni is related to the peer review process, and as the peer review process is an “official proceeding authorized by law” within the meaning of the anti-SLAPP statute, the trial court granted the defendants’ anti-SLAPP motion and dismissed Dr. Bonni’s retaliation claim. The Court of Appeal reversed, explaining that, simply because the claim is related to the peer review process does not mean the anti-SLAPP statute’s protections are triggered.

A similar California law protects both healthcare workers and patients from retaliation. California Health and Safety Code § 1278.5. Section 1278.5(b)(1) is broader than New York law, however, in authorizing claims in connection with retaliation for any “grievance, complaint, or report” or participating in an investigation or administrative proceeding relating to the facility’s “quality of care, services, or conditions.”

Mary”) after completing her second year. The following year, she filed a lawsuit against the Dignity Health hospital alleging gender discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA), California Health & Safety Code Section 1278.5, and California Labor Code Section 6310. After the first trial ended in a mistrial, the second trial began in 2019.

Former UCLA Physician Can Proceed With Whistleblower ClaimsScheer v. The Regents of the Univ. of Cal., 76 Cal. App. 5th 904 (2022)Arnold Scheer, M.D., M.P.H., sued the Regents of the University of California and others for alleged whistleblower retaliation. Dr. Scheer asserted claims under Cal. Lab. Code § 1102.5 (“Section 1102.5”), Cal. Gov’t Code § 8547, et seq., and Cal. Health & Safety Code § 1278.5. Among other things, Dr. Scheer alleged he was retaliated against for having been a whistleblower concerning “numerous issues, violations, and concerns related to patient safety, mismanagement, economic waste, fraudulent and/or illegal conduct,” etc. Defendants successfully moved for summary judgment in the trial court, but the Court of Appeal reversed, holding that the trial court had applied the wrong standard in evaluating Dr. Scheer’s claims, citing Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022).