What is Health & Safety Code section 1278.5?
Health and Safety Code Section 1278.5 is a California medical whistleblower statute that protects employees or physicians (and healthcare workers) from retaliation when they expose failures in the medical care system. The language is clear:
“[I]t is the public policy of the State of California to encourage patients, nurses, members of the medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions.” (Health & Safety Code section 1278.5(a))
What Type of Retaliation is Prohibited under 1278.5?
Retaliation can be of any type. Failure to renew a contract, hostile treatment in the workplace, failure to promote are obvious examples. An excellent list of more covert retaliation was prepared by the CMA (California Medical Association) and adopted by the California Supreme Court in the case titled, Shaw v. Superior Court (2017) 2 Cal.5th 983, [216 Cal.Rptr.3d 643, 393 P.3d 98,)
In Shaw, the California Supreme Court stated:
“According to the CMA [California Medical Association], examples of actions a hospital can take to suppress physician-whistleblowers or to retaliate against them are:
(1) underwriting the salary and/or practice expenses of a competing physician;
(2) establishing a medical care foundation and supporting its physicians with hospital funds;
(3) recruiting competing physicians to the community in the absence of a community deficit for that specialty;
(4) establishing a medical practice administrative service company for selected physicians and charging below market rates so that the doctor keeps a higher percentage of the collections and gains a competitive advantage;
(5) buying the medical building with the physician’s office and refusing to renew the physician’s lease;
(6) inducing primary care physicians to refer patients to the hospital outpatient facility for tests, bypassing the specialist’s office-based testing (e.g., imaging and cardiac tests);
(7) providing special scheduling priorities for hospital facilities;
(8) underwriting certain physicians and empowering them with control or influence over the peer review process;
(9) developing investment partnerships with selected physicians (surgery center, MRI center) that provide lucrative annual returns on investment (e.g., 50% return on investment (ROI) annually); and
(10) providing special equipment leasing arrangements for selected physicians with above market ROI.
The above is from Shaw v. Superior Court (2017) 2 Cal.5th 983, 1001–1002 [216 Cal.Rptr.3d 643, 657, 393 P.3d 98, 109–110.
How You Can ProtectYourself
If you are fighting for patient interests and are feeling pushback, you should document all actions that you have taken as a whistleblower and preserve all e-mails (with metadata), texts and conversations that will later support a claim of retaliation under H&S section 1278.5.
If you are experiencing retaliation under the CMA guidelines you should seek immediate legal help to protect your interests. The Horowitz Medical Law Group has the experience to protect whistleblowers and to file a lawsuit to vindicate your rights.
Call the Horowitz Medical Law Group for our H&S 1278.5 lawyers