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Medical Whistleblower Retaliation Lawyer
Fired For Putting Patients Before Profits? Get The Justice You Deserve
As a healthcare provider, you know that the patient always comes first. Sadly, far too many hospitals put profits before people. If you are a victim of healthcare retaliation, you need an attorney like Brandon Ortiz on your side. Brandon has recovered millions on behalf of doctors, nurses, and physician assistants who suffered retaliation for standing up for their patients. Contact Ortiz Law for a free consultation with a medical whistleblower retaliation lawyer.
Santa Monica, CA
Patients Before Profits
Brandon Ortiz has represented numerous victims of medical and hospital whistleblower retaliation, which is one of the most complex areas in employment law. Hospitals are heavily regulated by the state and federal government. There are a variety of statutes that protect doctors, nurses, medical providers, technicians, medical staff, and employees from retaliation if they raise concerns about patient safety or regulatory violations.
Some of the most important California laws include:
- California Health & Safety Code section 1278.5
- California Business & Professions Code section 2056
- California Business & Professions Code section 510
- California Labor Code section 1102.5
- California Labor Code section 6310
If you think you may be a victim of hospital or medical whistleblower retaliation, you should speak with an employment lawyer immediately to preserve your rights. Contact Ortiz Law today.
The 120-Day Presumption of Retaliation
Under California’s primary medical whistleblower retaliation law, there is a “rebuttable presumption” of retaliation if an adverse action occurs within 120 days of a grievance or complaint of unsafe conditions. Health & Safety Code § 1278.5(d)(1).
The 120-day presumption is frequently misunderstood by lay persons and even some lawyers. The presumption is not absolute. And the presumption does not shift the burden of proof. Health & Safety Code § 1278.5(e). Rather, it shifts the burden of production. What does that mean? To put it in more simpler terms, it means that the presumption “holds” if the health facility does not explain why it took the adverse action. For example, imagine a case where a nurse has his/her/their hours reduced after lodging a complaint with the medical staff. Assume this occurs one week after lodging the complaint. Under 1278.5, the hospital must explain why it reduced the nurse’s hours. If the hospital fails to offer an explanation, the “rebuttable presumption” holds — the jury must find that the reduction in hours was retaliation, even if the nurse never present any other evidence. On the other hand, if the hospital offers an explanation, then the presumption is deemed rebutted and disappears. The explanation must be admissible evidence, not argument by the hospital’s lawyer.
The 120-day presumption is a valuable tool for protecting medical whistleblowers. It makes it difficult for the hospital to obtain dismissal at the early stages of the lawsuit, when the victim has not had the opportunity to use discovery to gather evidence for his or her case. It is particularly powerful in “death by a thousand cuts” cases. Savvy but unscrupulous employers know that firing an employee immediately after he/she/they engages in legally protected activity looks suspicious and raises red flags. These employers, instead, will try to harass the employee into quitting by giving bad job assignments, unfavorable shift changes, undue scrutiny, and inflicting verbal abuse, etc. These cases can be difficult for an employee to bring because the employee has to prove that each and every one (or at least most) of these action were taken with an illegal motive. But with the rebuttable presumption, the employer must provide a legitimate business reason for its (harassing) conduct. This can be difficult for employers in cases where the adverse actions, such as verbal abuse, clearly has no legitimate business purpose on its face.
California’s Main Medical Whistleblower Law Does Not Require An Adverse Employment Action
Without going to deep into the legal weeds, most retaliation laws require an employee to prove he/she/they suffered an “adverse employment action.” This is a legal term of art that is frequently misunderstood. In cases where there is not a classic adverse employment action — termination, pay cut, demotion — this requirement can pose a major obstacle for the employee.
California Health And Safety Code section 1278.5 is very different. For starters, it protects more than just employees. This makes sense, because the doctors who practice at private hospitals are not actually employees of the hospital for various legal reasons. Section 1278.5 also protects patients, who clearly are not employees of the hospital that is treating them.
Since a doctor is not employed by a hospital, they technically cannot be “fired” by the hospital. (However, the hospital medical staff can revoke the doctor’s privileges to practice at the hospital, which is effectively the equivalent of a termination.) If medical whistleblower laws required doctors to prove they suffered an adverse employment action, then the law would provide no actual protection for the doctor since someone who is not an employee cannot, by definition, suffer an adverse employment action.
The text of Health And Safety Code section 1278.5 does not require an “adverse employment action.” That term of art is not in the statute at all. The Legislative history of section 1278.5 reveals that the law is quite broad and encompasses scenarios that would not be considered an “adverse employment action” under traditional whistleblower laws, such as where the hospital declines to renew a contract with a physician group.
The take away from all this legalese is that medical whistleblower retaliation cases are much more complicated than traditional employment cases. If you work in a hospital and you have suffered retaliation for standing up for your patients, you should consult an attorney who understands the nuances of medical whistleblower retaliation laws.
Frequently Asked Questions
The persons protected vary by statute. One of the most important statutes in California is Health & Safety Code section 1278.5. This law protects employees, patients, and medical staff of licensed health facilities (defined by Health & Safety Code section 1250) who presented a grievance, complaint, or report to the facility, the medical staff of the facility, or any governmental entity about issues relating to the care, services, and conditions of a facility.
A more general whistleblower law, California Labor Code section 1102.5, protects employees who report a violation of a state or federal statute or a violation of a local, state, or federal rule or regulation to “a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry[.]”
Depending on the circumstances, yes. California Health & Safety Code section 1278.5 is broader than most whistleblower laws because the protections it affords are not limited to employees.
California law also prohibits third parties (i.e. persons who do not work for your employer) from wrongfully and intentionally inducing your employer to terminate an employee. See Pacific Gas & Electric Co. v. BearStearns & Co., 50 Cal.3d 1118, 1127 (1990).
This is a complicated area of law and you should speak with an employment attorney if you think you may be a victim of hospital or medical whistleblower retaliation.
What can I recover in a wrongful termination lawsuit?
- Lost wages and benefits
- Emotional distress
- Pain and suffering from physical injury or exacerbation of pre-existing physical conditions
- Other economic losses like medical expenses, moving expenses, and job search expenses
- Punitive damages to punish private employers in extreme cases
- Attorney’s fees under some laws
- Reinstatement in some cases
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This website is an advertisement for legal services. The information provided on this website is for informational purposes only and does not constitute legal advice. An attorney-client relationship does not begin until a formal written contract is signed. If you have legal questions or need legal advice, you should contact an attorney. Nothing contained in this website should be construed as a guarantee or promise of results. Past case results are not indicative of future results and are presented for informational purposes only. The case results presented herein are from cases that Brandon Ortiz had primary day-to-day responsibility for prior to founding Ortiz Law Office, Inc.