A recent California Supreme Court ruling could significantly impact trials of physician “whistleblower” claims under California Health & Safety Code Section 1278.5 – maybe.
Historically, California physicians facing peer review actions first had to exhaust their administrative remedies before filing a lawsuit related to the action. In 2007, California carved out an exception to this general rule in a revision to California Health & Safety Code § 1278.5. This statute prohibits health care facilities from discriminating or retaliating against employees, health care workers, and medical staff members for raising issues of unsafe patient care and conditions; in 2014, the California Supreme Court found that the statute allows physicians to pursue retaliation claims without first having to exhaust administrative remedies.
On April 10, 2017, the California Supreme Court unanimously held in Shaw v. The Superior Court of Los Angeles County that there is no right to a jury trial for causes of action brought by employees alleging retaliatory termination under subsection 1278.5(g). Shaw was decided in the context of an employee’s retaliation claims, but the Court’s reasoning could apply to claims asserted by physician plaintiffs. However, the Court was clear that it is too early to make that call.
The Statute Does Not Give Right to a Jury Trial
In Shaw, the plaintiff nurse brought an action against her employer, claiming she was terminated in retaliation for complaining about matters that adversely affected patient care. She argued that Section 1278.5’s 2007 amendments allowing “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law” entitled her to a jury trial. The Court disagreed. In reviewing the statutory language and legislative history of the 2007 amendments, the Court determined that the statute permits the court, not a jury, to determine alternate remedies. More importantly, the Court emphasized that the legislature included this additional remedial language in the amendments in order to protect non-employee physicians. Because physicians may encounter retaliation that is unrelated to employment but could still negatively impact their practice, the Legislature amended § 1278.5 (g) to allow a court to devise adequate, alternate remedies for an injured non-employee physician, as well as for employee and healthcare worker whistleblowers.
Court Did Not Address the Constitutional Issue With Regard to Non-Employees
So: does this limit physicians to bench trials when bringing Section 1278.5 cases? Maybe, maybe not. In Shaw, the plaintiff also argued that she had a right to a jury trial under California’s constitution. The Court rejected this claim – in large part, however, because employees like Ms. Shaw have the right to make a separate retaliatory termination claim under which they are afforded a jury trial, in addition to the Section 1278.5 cause of action. Therefore, Ms. Shaw was not completely precluded from seeking a jury trial on her claims. Those same retaliatory termination causes of action would not be available to non-employed physicians, which raises the question: Would a court hold that a plaintiff has a constitutional right to a jury trial if Section 1278.5 is the only cause of action available to him or her? The Shaw Court emphasized that it was not deciding this issue. But as more physicians bring Section 1278.5 cases, it seems likely that the Court will have to provide an answer soon.
The Arent Fox Health Care group regularly follows developments in peer review and whistleblower matters. If you have any questions about the issues discussed here, please contact Lowell C. Brown, Debra J. Albin-Riley, Sarah G. Benator, or Louisa Kirakosian in our Los Angeles Office or the Arent Fox professional who regularly handles your matters.