(California Supreme Court, S205568)
This case involves allegations that a hospital in Modesto, CA terminated the physician’s privileges against the recommendation of the medical staff’s Joint Review Committee (JRC), as a means of retaliating against the physician for raising concerns about nursing care. The JRC conducted peer review of the physician for alleged disruptive behavior and specifically found that the physician’s behavior did not pose a threat to patient safety. The hospital governing body, however, rejected the JRC’s final recommendation due to alleged technical drafting deficiencies in the JRC’s decision, rather than based on any evidence of jeopardizing patient safety. The physician alleged that such an explanation was a pretext to terminate his privileges and that the hospital was retaliating against him for raising patient safety concerns in violation of California's hospital whistleblower statute. Current law requires that a challenge to an adverse peer review decision can only be made through a writ process, in which the physician bears the burden of proving that the peer review decision was wrong and faces other procedural hurdles. California's hospital whistleblower statute, by comparison, does not raise similar burdens and hurdles against the plaintiff. At issue before the California Supreme Court was whether a physician who alleges that a hospital’s peer review action was retaliation for whistleblowing must first go through the burdensome writ process for challenging adverse peer review decisions or can the physician instead sue directly for damages and reinstatement as provided under the whistleblower statute. CMA and AMA filed an amicus brief with the state’s high court to argue that whistleblower protection for physicians on a medical staff should not be hampered by such an exhaustion requirement. The brief pointed out the real potential of sham peer review to target physicians and argued the California legislature intended for full and immediate protection against whistleblower retaliation, especially in cases involving sham peer review actions. All briefing is complete in this case. CMA Legal Counsel, Long Do, presented oral argument before the Supreme Court on January 7, 2014. On February 20, 2014, the California Supreme Court agreed with CMA's position and concluded that a hospital staff physician who claims a hospital decision to restrict or terminate his staff privileges was an act of retaliation for his or her whistleblowing in furtherance of patient care and safety need not seek and obtain a mandamus petition to overturn the decision before filing a civil action under the whistleblower statute.
CMA Court of Appeal Amicus Brief filed: 2/7/12
CMA Supreme Court Amicus Brief filed: 7/22/13
Opinion filed: 2/20/14