(Court of Appeal, Fifth District, F063023)
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, which conducted peer review of the physician for alleged disruptive behavior. The JRC specifically found that the physician’s behavior did not pose a threat to patient safety, but the hospital governing body rejected the JRC’s final recommendation due to alleged technical deficiencies in how the JRC’s decision was drafted rather than based on any evidence of jeopardizing patient safety. The respondent physician alleged that such an explanation was pretext to terminate his privileges and that the hospital was retaliating against him for raising patient safety concerns at the hospital. On February 7, 2012, CMA filed an amicus brief in the Court of Appeal providing the court with background on the interactive roles of the medical staff and hospital governing board in the peer review system and how they relate to the whistleblower protections under Health & Safety Code section 1278.5, a statute sponsored by CMA in 2007 that extended whistleblower protections to physicians. The brief pointed out the real potential of sham peer review to target physicians and argued that physicians who suffer retaliation in the form of adverse peer review actions can bring a lawsuit directly under the whistleblower statute without having to first challenge the peer review decision through a writ of mandate proceeding. On August 14, 2012, the Court of Appeal agreed with CMA's position and held that it is not necessary to file a writ of mandate prior to filing a whistleblower lawsuit under section 1278.5. The court stated that medical personnel must be protected from retaliation when they report conditions that endanger patients and requiring victims of retaliation to pursue lengthy and costly writ review before seeking whistleblower protection would undermine the policy of putting patients first. On November 14, 2012, the California Supreme Court granted the hospital's petition for review. This case is currently in the briefing stage.
CMA Amicus Brief filed: 2/7/12