306 P Supp Memo re HS12785 by eugenedlee

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David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.

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Eugene D. Lee (SB#: 236812) LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, et al., Defendants. Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S SUPPLEMENTAL BRIEF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT PURSUANT TO COURT’S ORDER OF MARCH 2, 2009 (Doc. 304) TRIAL: March 24, 2009

Complaint Filed: January 6, 2007

On March 2, 2009, this Court issued an Order (Doc. 304, the “Order”) directing the parties to 26 submit supplemental briefs addressing the retroactivity of a 2007 amendment to Cal. Health and Safety 27 C. § 1278.5. Plaintiff submits this supplemental brief pursuant to such Order. 28
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I. DOES REVISED § 1278.5 APPLY RETROSPECTIVELY? Health & Safety C. § 1278.5 was enacted by Senate Bill 97 in 1999 (the “Statute”). It was amended (the “Amendment”) by Assembly Bill 632 (“AB 632”) as of January 1, 2008. The Court has asked whether the Amendment should apply retrospectively prior to January 1, 2008. Plaintiff submits that the answer is no. It is well settled that there is a presumption against applying amendments retrospectively. Evangelatos v. Sup. Ct. (1988) 44 Cal.3d 1188, 1218. A review of AB 632 and its legislative history reveals no legislative intent of retrospective effect. II. IF NOT RETROSPECTIVE, DO PLAINTIFF’S § 1278.5 CLAIMS SURVIVE? A. The Pre-Amendment Statute Encompassed Internal Reports to a Health Facility The Court noted that the Statute protects a “grievance or complaint” but does not specify to whom the complaint had to be made, whereas the Amendment protects a “grievance, complaint, or report to the facility. . . or the medical staff of the facility. . . .” (Order at 5:16-22). Since the October Oncology Conference involved an internal report by Plaintiff to the facility, the question becomes whether it was protected under the pre-Amendment Statute. 1. The Amendment Is a Clarifying Statute that Does Not Operate Retrospectively A clarifying statute does not operate retrospectively. Colmenares v. Braemar Country Club, 29 Cal. 4th 1019, 1022 (2003). “Such a legislative act has no retrospective effect because the true meaning of the statute remains the same.” Western Security Bank v. Sup. Ct., 15 Cal.4th 232, 243 (1997). In Colmenares v. Braemar Country Club, Inc., the California Supreme Court considered the case of an employee who had been terminated 4 years before the enactment of the Poppink Act, an amendment to the Fair Employment & Housing Act (“FEHA”) that significantly broadened the definition of physical disability under FEHA. 29 Cal. 4th 1019, 1022 (Cal. 2003). Prior to the Poppink Act, the Fair Employment and Housing Commission (“FEHC”) had required physical disabilities to “substantially” limit major life activities. The Poppink Act revised the definition of physical disability such that it needed only limit a major life activity. 29 Cal. 4th 1019, 1024 (Cal. 2003). The trial court granted Braemar’s motion for summary judgment against Colmenares after reviewing Colmenares’ deposition testimony that his back condition did not substantially limit major life activities and finding that the pre-Poppink Act FEHA included a “substantially limit” requirement. 29 Cal. 4th 1019, 1024
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(Cal. 2003). The court of appeal affirmed, holding that the Poppink Act’s later-enacted broader disability standard could not be applied retrospectively to a firing that had occurred 4 years prior. 29 Cal. 4th 1019, 1027-1028 (Cal. 2003). The California Supreme Court reversed. The court held that the Poppink Act “merely clarified the existing ‘limits’ test in the FEHA and, contrary to the conclusion of the Court of Appeal here, did not retrospectively change that test”. 29 Cal. 4th 1019, 1031 (Cal. 2003). The court explained: When a statute “merely clarifies, rather than changes, existing law [it] does not operate retrospectively.” Even a material change in statutory language may demonstrate legislative intent only to clarify the statute’s meaning. (Ibid.) If the legislative intent is to clarify, an amendment has “no retrospective effect because the true meaning of the statute remains the same.” (Ibid.)” 29 Cal. 4th 1019, 1024 (Cal. 2003) n. 2 (citation omitted). In reaching the conclusion that the legislative intent of the Poppink Act was merely to clarify existing law, the court cited: 1) legislative committee analyses which stated that the Poppink Act “‘standardizes’

12 the definition of physical disability ‘in California civil rights law, clarifying that California’s disability 13 protections are broader than federal protections’”, and 2) the fact that the pre-Poppink FEHA “used the 14 term ‘limits,’ not the federal law’s “substantially limits” language, before and after its amendment by 15 the Poppink Act.” 29 Cal. 4th 1019, 1027 (Cal. 2003) (citations omitted, emphases in original). 16 In the instant case, analogs of both of these elements exist. First, as in Colmaneres, legislative 17 committee analyses for AB 632 unequivocally state that the purpose of the Amendment is to clarify that 18 the Statute protects physicians who internally report patient care issues: 19 20 21 22 23 24 25 Amendment Statute encompassed internal reports: 26 27 28 Background: Complaints about the quality of care, services, or conditions of health care facilities [under pre-Amendment § 1278.5] can be submitted in a number of ways. Any person can present a complaint to the chief administrative officer of the health facility or file a complaint with Department of Health Services’ (DHS) licensing and certification unit by contacting the district office where that health facility is located.
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BACKGROUND AND DISCUSSION: According to the author [of AB 632], existing law does not fully protect physicians and other health professionals from retaliation if they make a complaint or grievance about a health facility. . . . Complaints about quality of care issues pertaining to health facilities can be raised with a peer review body, hospital governing board, or accrediting agency. However, the author and sponsor state that, in some cases, physicians who raise a complaint to any of these bodies are not protected under current law against retaliation and that AB 632 will clarify existing law to prevent abuses against physicians and other health professionals.” Sen. Health Com. Analysis of Ass. Bill 632, mem. prep. for hearing of June 13, 2007. The legislative committee analyses further confirm that the terms “grievance or complaint” in the pre-

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Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007 (see also Sen. Health Com. Analysis of Ass. Bill 632, mem. prep. for hearing of June 13, 2007). The analyses also confirm that the pre-Amendment terms “grievance or complaint” encompassed the act of merely providing information to a governmental entity (such as Kern County and KMC):

4 5 6 7 8 9 10 “No health facility shall discriminate or retaliate in any manner against any patient or employee of the 11 health facility because that patient or employee, or any other person, has presented a grievance or 12 complaint . . . relating to the care, services, or conditions of that facility.” § 1278.5(b)(1). As the Court 13 itself observed, “The old version of the statute did not explicitly specify to whom the ‘grievance or 14 complaint’ had to be made”. Order at 5:21-22. The Statute also did not define the terms “grievance or 15 complaint”. Adding to the ambiguity, the declaratory language contained in § 1278.5(a) includes a 16 statement that “it is the public policy of the State of California to encourage patients, nurses, and other 17 health care workers to notify government entities of suspected unsafe patient care and conditions” and 18 further states that the Legislature encourages this reporting . . . .” (emphasis added). In short, the 19 ambiguous language contained in the pre-Amendment Statute is consistent with the clarification 20 instituted by AB 632 that physicians who make an internal report to a health facility are protected 21 whistleblowers. 22 It should further be noted that the legislative history makes clear that the Amendment’s inclusion 23 of the critical phrase “to the facility” after the phrase “presented a grievance or complaint” in the Statute 24 was merely a clarifying amendment. The legislative analysis of the Assembly Committee on Health for 25 26 27 28 See also Carter v. California Dept. of Veterans Affairs, 38 Cal. 4th 914, 924, 926 (Cal. 2006) (finding that a FEHA amendment extending employer liability to sexual harassment committed by nonemployees merely clarified existing law in part based on the fact that former provision was sufficiently ambiguous to support an interpretation that it imposed liability on employers for harassment by nonemployees).
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SB 97 (Burton), Chapter 155, Statutes of 1999 [the bill which enacted the preAmendment Statute], extended the whistleblower protections then available to patients and employees of a long-term health care facility to patients and employees of health facilities (hospitals) for filing a grievance or providing information to a governmental entity regarding care, services, or conditions at the facility. Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007 (emphasis added). Second, as in Colmaneres, the pre-Amendment Statute is sufficiently ambiguous that it could be interpreted to encompass internal reports by physicians.1 The pre-Amendment Statute simply stated:

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hearing of April 10, 2007 stated, “this bill would clarify an ambiguity in existing law.” Ass. Com. on Health Analysis of Ass. Bill 632, mem. prep. for hearing of April 10, 2007. That same analysis contained a section called “SUGGESTED AMENDMENTS” which stated, “On page 3, line 11, before the comma add “to the health facility.” Ass. Com. on Health Analysis of Ass. Bill 632, mem. prep. for hearing of April 10, 2007. The phrase “to the facility” language was then added to the actual bill shortly thereafter. Draft AB 632, amended by Senate on June 6, 2007. No controversy or discussion attended the inclusion of the phrase “to the health facility” in the amended bill, which occurred early in the legislative process. Moreover, the uncodified preamble to AB 632 neglects to even mention the addition of the phrase “to the health facility”, underscoring the fact that it was merely a clarifying change.2 AB 632’s uncodified preamble instead highlights the Amendment’s (1) extension of the Statute’s protections to physicians, (2) inclusion of reports to accreditation bodies, and (3) broadening of remedies to include court discretionary remedies. See p. 113/116 of AB 632 legislative history (Lee Dec. Exh. 5). Finally, the clarifying nature of an amendment is indicated where the legislature acts promptly to correct ambiguities revealed through caselaw interpreting the original statute. Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 920, 923. Here, the legislative history specifically cited to Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal. App. 4th 515, a case that had occurred only a year before enactment of the Amendment, in which a hospital retaliated against a doctor after he sent an internal email raising concerns whether the hospital was going bankrupt: One way is a direct retaliation for a statement made by a physician regarding concerns of quality of care. According to CMA, the most recent example occurred at Western Medical Center Santa Ana, when the new owners Integrated Healthcare Holdings Inc. (IHHI) sued Michael Fitzgibbons, M.D. . . when [he] expressed concerns about the financial viability of the hospital. Ass. Com. on Health Analysis of Ass. Bill 632, mem. prep. for hearing of April 10, 2007. In short, a review of legislative history and the ambiguous language of the pre-Amendment

See Carter v. Cal. Dept. of Vet. Aff., 38 Cal. 4th 914, 925 (Cal. 2006) (“An uncodified section is part of the statutory law. ‘In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration. Although such statements in an uncodified section do not confer power, determine rights, or enlarge the scope of a measure, they properly may be utilized as an aid in construing a statute.’”) (citations and quotations omitted).

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Statute establishes that the Amendment’s extension of protections to physicians who make internal reports to a health facility was a clarifying change that has no retrospective effect because the “true meaning” of the pre-Amendment Statute remained the same. 2. The Statute Encompassed Plaintiff’s Internal Complaint Even Before Amendment Even if the foregoing discussion on clarification were disregarded, Plaintiff’s internal report to KMC at the October Oncology Conference would still qualify as protected activity under the preAmendment Statute. It is undisputed that (A) KMC and Kern County are “governmental entities”. (Response to RFA No. 19-20, Doc. 267-2 at 5:11-17); (B) the October Oncology Conference is a monthly “proceeding” of KMC; and (C) Plaintiff’s report at the conference on a hysterectomy of a patient (no. 1142693) that was almost conducted based on flawed outside pathology reports “initiated” an “investigation” of that patient’s case whereby Kern County Counsel sent her case to a retained expert named William Colburn, M.D. (See Colburn Report, Doc. 277-3 at p. 38 of 191). B. Plaintiff Was at All Times an “Employee” Protected by the Statute Both Before and After the Amendment As the Court has noted, the Statute in effect at all relevant times prohibited retaliation against any “employee of the health facility”; however, the Court questions whether a physician such as Plaintiff

16 may qualify as an actual employee of the health facility. Order at 6:26-28. 17 Plaintiff submits that he did so qualify. The Scheduling Order establishes that “Plaintiff has 18 continuously been an employee of Defendant Kern County since October 24, 2000.” (Doc. 29 at 7:2819 8:1). Defendants have also judicially admitted that KMC is a health facility. (Response to RFA No. 18, 20 Doc. 267-2 at 5:7-10). 21 Moreover, the legislative committee analyses for AB 632 make clear that, even under the pre22 Amendment Statute, physicians who work at teaching hospitals like KMC may be deemed employees. 23 24 25 26 27 28 Current state law prohibits the employment of physicians by corporations or other entities that are not controlled by physicians. For that reason, most members of the medical staff are not considered employees of a hospital and must establish contractual relationships with the hospital, either individually or through medical groups. Some exceptions are teaching hospitals, certain clinics, and hospitals owned and operated by a health care district. Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007 (emphasis added). Finally, the legislative committee analyses for AB 632 disclose that the “stated need for the bill”
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arises from the exploitation by “enterprising attorneys” of the “nebulous term” “or any other person” contained in the pre-Amendment Statute so as to deny protections to physicians by arguing that a physician is neither an “employee” nor a “patient”. The analyses then state: “As such this section must be clarified and strengthened” to close this legal loophole. (Sen. Jud. Com. Analysis of Ass. Bill 632, mem. prep. for hearing of July 10, 2007). A clarifying statute does not operate retrospectively. Colmenares v. Braemar Country Club, 29 Cal. 4th 1019, 1022 (Cal. 2003). In short, Plaintiff clearly qualifies as an “employee” under the Statute, both before and after the Amendment. C. Plaintiff’s § 1278.5 Claims Encompass More than Just the October Oncology Conference Plaintiff’s § 1278.5 claims involve more than just Plaintiff’s internal complaint at the October Oncology Conference. They also encompass, among other things: A) the decision of Kern Medical

12 Center’s (“KMC”) CEO to force Plaintiff from part-time medical leave onto involuntary full-time 13 medical leave on April 28, 2006 in retaliation for his email to the CEO of April 17, 2006 complaining 14 that KMC was not complying with blood documentation regulations and requesting that the non15 compliance be elevated to the Board of Supervisors of Kern County (Plaintiff’s Motion for Summary 16 Judgment (“MSJ”, Doc. 272) at 10:11-11:2); Plaintiff Material Fact (“PMF”) 97, Plaintiff’s Separate 17 Statement (Doc. 272.-2)); as well as B) the decision of KMC’s Chief Medical Officer to place Plaintiff 18 on a 10-month administrative leave – restricting him to his home for 5 of those months – 2 to 3 weeks 19 after Plaintiff’s (i) filing of complaints with the California Department of Health Services and various 20 accreditation bodies (MSJ at 11:3-12:9) and (ii) email to KMC leadership complaining about a radical 21 prostatectomy that was scheduled to occur based on patently inconclusive pathology findings (MSJ at 22 12:10-13:3). Even if the Court were to summarily dispose of Plaintiff’s § 1278.5 claim with respect to 23 the October Oncology Conference, Plaintiff’s other § 1278.5 claims would survive. 24 25 26 27 Centinela Hosp. Med. Ctr., a nurse complained internally to the hospital CEO and her supervisor about 28 patient care concerns and then sued under § 1278.5 before the Amendment. 521 F.3d 1097, 1105 (9th
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D. The Ninth Circuit Has Already Addressed The Instant Issue The exact issue before this Court – whether an internal whistleblowing report pre-dating the Amendment is protected by § 1278.5 – has already been considered by the 9th Circuit. In Mendiondo v.

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Cir. 2008). Her complaints all pre-dated January 1, 2008 and she never blew the whistle to an outside governmental entity. Centinela’s Answering Brief – which was itself filed well before the enactment of the Amendment – argued that, under the pre-Amendment Statute: Mendiondo cannot deny that she never alleged that she “notif[ied] government entities” about any “suspected unsafe patient care and conditions” at CHMC. Mendiondo simply is not a whistleblower deserving of protection under California law, and the trial court’s dismissal of this claim should be affirmed. 2006 U.S. 9th Cir. Briefs 55981, 25-26 (9th Cir. Feb. 2, 2007) (citation omitted). The 9th Circuit rejected Centinela’s argument that an external report was required and held that § 1278.5 is “intended to encourage medical staff and patients to notify government entities of ‘suspected unsafe patient care and conditions.’ The statute prohibits retaliation against any employee who complains to an employer or a government agency about unsafe patient care or conditions.” III. IF RETROSPECTIVE, WHAT IS THE IMPACT ON DEFENDANTS’ MJOP? Under the California Tort Claims Act, Kern County was required to give timely written notice to Plaintiff of any deficiencies in his submitted claims, such as insufficient disclosures and/or untimely submission. Cal. Gov. C. §§ 910.8; 911.3(a). Failure to give such written notice of deficiencies to Plaintiff waives any associated defenses. Cal. Gov. C. §§ 911; 911.3(b). Here, Kern County never gave Plaintiff any such written notices of deficiencies. Defendants have therefore waived all associated defenses and their Motion for Judgment on the Pleadings should be denied. Moreover, caselaw establishes that employees who allege continuing violations, as Plaintiff is doing, may comply with the Tort Claims Act by filing a series of tort claims, as Plaintiff has done here. In Murray v. Oceanside Unified Sch. Dist., the court considered the case of a plaintiff who had filed tort claims three times regarding continuous alleged harassment that pre-dated the tort claims by more than 6 months. 79 Cal. App. 4th 1338, 1360-1361 (2000). The court referenced the “continuing violation” doctrine set forth in Accardi v. Sup. Ct., 17 Cal. App. 4th 341 (1993) in concluding “that the purposes of the Tort Claims Act have been adequately protected by the procedures followed here.” 79 Cal. App. 4th 1338, 1360-1361 (2000). Moreover, according to the holding in Morgan v. Regents of the Univ. of Cal., the plaintiff need only “demonstrate that at least one act [of the continuing violation] occurred within the filing period....” (2000) 88 Cal.App.4th 52, 64.

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For the foregoing reasons, Plaintiff respectfully requests the Court deny Defendants’ Motion for Judgment on the Pleadings in its entirety.

RESPECTFULLY SUBMITTED on March 9, 2009. /s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

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Case 1:07-cv-00026-OWW-DLB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. COUNTY OF KERN, et al., DAVID F. JADWIN, D.O., Plaintiff, Eugene D. Lee (SB#: 236812) LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF SUPPLEMENTAL BRIEF PURSUANT TO COURT’S ORDER OF MARCH 2, 2009 TRIAL: Defendants. Complaint Filed: January 6, 2007 March 24, 2009

I, Eugene D. Lee, declare as follows: 1. I am an attorney at law duly licensed to practice before the Federal and State Courts of

California and admitted to practice before the U.S. District Court for the Eastern District of California. I am counsel of record for Plaintiff David F. Jadwin in this matter. 2. I am making this declaration in support of Plaintiff’s Supplemental Brief in Opposition to

Defendants’ Motion for Summary Judgment. I have personal knowledge of the matters set forth below and I could and would competently testify thereto if called as a witness in this matter. 3. I filed all of the Tort Claims Act claims in this action on Plaintiff’s behalf. In each case, I

indicated my law firm address as the desired mailing address for notices from Kern County. 4. Kern County never at any time delivered to me any written notices of any deficiencies in

any of Plaintiff’s Tort Claims Act claims which I filed on his behalf. Had it done so, I would have taken
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any and all appropriate steps to cure or resolve any such deficiencies or minimize the prejudice to Plaintiff. I was never afforded such opportunity. 5. Attached hereto as Exhibits are true and correct copies of the following documents which

were either served on me, filed by me or transmitted by me on or around the dates indicated: Description Plaintiff’s Tort Claims Act Claim

Letter from Kern County to Eugene Lee re Plaintiff’s Tort Claims Act Claim 4/23/2007 Plaintiff’s First Supplemented Tort Claims Act Claim 10/16/2007 Plaintiff’s Second Supplemented Tort Claims Act Claim On March 2, 2009, at approximately 4:30 p.m., I navigated my internet browser to the

uniform resource locator, http://www.assembly.ca.gov/acs/acsframeset2text.htm. In inputted the bill number “632”, session “2007-2008 PRIOR” and house “Assembly” in the appropriate search fields. I then downloaded and printed out all AB 632 legislative history files that resulted from the search. Attached hereto as Exhibit 5 is a full and accurate computer printout of all such AB 632 legislative history files. 7. Attached as Exhibit 6 is a true and correct copy of the answering brief submitted by

defendants-appellees to the 9th Circuit in Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105 (9th Cir. 2008). The Lexis-Nexis cite for the brief is 2006 U.S. 9th Cir. Briefs 55981; 2007 U.S. 9th Cir. Briefs LEXIS 46.

RESPECTFULLY SUBMITTED on March 9, 2009. /s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

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EXHIBIT 1: Plaintiff’s Tort Claims Act Claim

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CLAIM AGAINST THE COUNTY OF KERN
(Government Code 86 910,910.2 & 910.4)

This claim must be filed with the Clerk of the Board of Supervisors, 1115 Truxtun A ve., 6 Floor, Bakersfield, California 93301. If it is a claim for death, iniuw to person, iniury to personal pro~erty iniury to growins crops, it must be filed within six or months after the accident or event giving rise to the claim. If it is a claim for any other cause of action, it must be fled within one year afier the evenf(s) giving rise to the claim. You must complete both sides and sign the claim form for the claim to be valid. Complete information must be provided. If the space provided is inadequate, please use additional paper and identify information by paragraph number. 1.

State the name and mailing address of claimant:

David F. Jadwin, D.O., F.C.A.P., 3184 Beaudry Terrace, Glendale, CA 91208-1745 D a v i d F . J a d w i n , D.O., F.C.A.P., 3184 Beaudry T e r r a c e , G l e n d a l e , 91208-1745

2.

State the mailing address to which claimant desires notices from the County to be sent:

Law Office of Eugene Lee, 445 South Figueroa Street, Suite 2700, Los Angeles, CA 90071 O f f i c e o f Eugene Lee, 445 S o u t h F i g u e r o a S t r e e t , S u i t e 2700, Los Angeles, 90071

3.

State the date, place and other circumstances of the accident or event(s) giving rise to the claim.

See attachment. See attachment.

4.

Provide a general description of the injury, damage or loss incurred so far as it may be known:

See attachment. See attachment.

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5.
Mr.

Provide the name or names of the public employee or employees causing the injury, damage or loss, if known:
Peter Bryan, D r . I r w i n H a r r i s , D r . Eugene Kercher,
Dr.
Dr.

Scott Ragland,

PS. J e n n i f e r A&ih-m.

W i l l iam Rov. ~t al-

6.

Regarding the amount claimed (including estimated amount of any prospective injury, damage or loss known as of the tims the claim is filed):
If less than ten thousand dollars ($10,000), state the amount: $

If more than ten thousand dollars, would the claim be a limited civil case (less than $25,ODO)? (Circle one)
Ye6

7.

Please state any additional information which may be helpful in considering this claim:

@

Complainant met w i t h Mr. Bernard Barmann with respect to the foregolng on e b r u a r v 9. 2006.

Claimant must dale and sign below.

B.

Signed this

,3

day of ~ u l v .ZOlj_

I

F

CLAIMANT'S SIGNATURE

WARNING! IT I A CRIMINAL OFFENSE S TO FILE A FALSE CLAIM (Penal Code $72)

.-

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ATTACHMENT – CLAIM AGAINST THE COUNTY OF KERN

3. A.

State the date, place and other circumstances of the accident or event(s) giving rise to the claim. Breach of Contract

Pursuant to an employment contract (“Contract”), Complainant was formerly Chair of Pathology at Kern Medical Center (“KMC”). On June 14, 2006, Mr. Peter Bryan (CEO of KMC) summarily informed Complainant that he was being stripped of chairmanship effective June 17, 2006, due to his taking excessive sick leaves. As of June 14, 2006, Complainant had taken 12 weeks of CFRA sick leave and approx. 3-4 weeks of County sick leave based on doctor’s certifications which he submitted. Prior to June 14, Mr. Bryan had not communicated to Complainant his concerns regarding Complainant’s sick leaves. In fact, Mr. Bryan had in at least two written communications told Complainant that Complainant would have until June 16, 2006 to decide whether to continue or resign his chair position. Ultimately, Mr. Bryan failed to honor the June 16 deadline. In addition, the Contract states that Complainant shall be employed by the County of Kern “pursuant to the terms of this Agreement and the medical staff bylaws of KMC”. Mr. Bryan failed to comply with KMC bylaws in stripping Complainant of chairmanship. B. Wrongful Demotion/Termination in Violation of Cal. Bus. & Prof. C. § 2056 & Conspiracy Relating Thereto

The above-referenced demotion of Complainant to a staff pathologist also constituted a constructive termination. Mr. Bryan’s email to Complainant of June 14, 2006, strongly intimated that Complainant was no longer welcome at KMC. On June 26, 2006, Mr. Bryan reinforced that sentiment when he abruptly informed Complainant that he was no longer permitted to enter KMC grounds, contact any KMC employee or faculty member or access any KMC equipment or networks for any reason for the remainder of his leave. The demotion/termination constituted retaliation by Mr. Bryan against Complainant for raising concerns relating to patient health care. Previous to June 14, Complainant had apprised Mr. Bryan and other medical staff leadership in emails and communications too numerous to count of several crisis issues which critically jeopardized patient health care at KMC: need for follow-up on failure of a formerly-employed KMC pathologist to detect cancer diagnoses in numerous patient prostate biopsies; ii) chronically incomplete or inaccurate KMC blood component product chart copies, in violation of state regulations and accreditation standards of JCAHO, CAP and AABB; iii) chronically inadequate fine needle aspirations collected by KMC radiologists leading to incomplete and/or i)

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iv)

v) C.

incorrect patient diagnoses and greatly increased expense for KMC; need for KMC pathology dept. i) to review outsourced pathology diagnoses prior to undergoing major therapy in reliance on those diagnoses and ii) to approve outsourcing of pathology to outside vendors; and need for effective oversight of blood usage program by pathology dept. Per Se Libel / Ratification by KMC

In a letter dated October 17, 2005, Drs. Eugene Kercher (President of KMC Medical Staff), Scott Ragland (President-elect of KMC Medical Staff), Jennifer Abraham (Past President of KMC Medical Staff) and Irwin Harris (KMC Chief Medical Officer) informed Complainant that three letters written by Complainant’s colleagues at KMC expressing “dissatisfaction” with Complainant would be “entered into your medical staff file.” When Complainant asked to see the three letters, he was refused. In so reprimanding Complainant, Drs. Kercher, Ragland, Abraham and Harris utterly failed to comply with KMC bylaws. Finally on January 6, 2006, Complainant received a letter from Ms. Karen Barnes (Deputy County Counsel for the County of Kern) to which were attached the above-referenced three letters in redacted form, one of which maliciously defamed Complainant’s professional competence. Complainant was later able to determine that Dr. William Roy was the author of the defamatory letter. Dr. Roy did not respond to Complainant’s subsequent written requests for explanation of his defamatory comments. D. Related Causes of Action

Complainant also seeks to bring claims of intentional infliction of emotional distress, negligent hiring, negligent supervision and negligent retention in relation to the foregoing.

4.

Provide a general description of the injury, damage or loss incurred so far as it may be known:

With respect to the County of Kern and each KMC officer or staff member as appropriate: Pro rata loss or reduction of employment compensation of approx. $400,000 per annum for the period from (i) on or about Dec. 2005 to Oct. 4, 2007 (end of current contract employment period) due to demotion, sick leaves and vacation time, and (ii) from Oct. 2007 until such time as complainant is able to secure comparable position with comparable pay after engaging in a diligent job search. Complainant believes his career as a pathologist is effectively at an end due to his age and the dearth of pathology chair positions in the US. Attorney’s fees (approx. $40,000 so far) and other costs. Loss of reputation.

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Severe emotional distress (and reimbursement of associated medical expenses of approx. $30,000). Punitive damages.

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EXHIBIT 2: Letter from Kern County to Eugene Lee re Plaintiff’s Tort Claims Act Claim

USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF SUPPLEMENTAL BRIEF PURSUANT TO COURT’S ORDER OF MARCH 2, 2009 4

Case 1:07-cv-00026-OWW-DLB
Bernard C. Barmann, Sr. County Counsel Stephen D. Schuett Assistant County Cour.sel

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Tom Newell Sewice Representative Reply to (661) 8683867

COUNTY COUNSEL
Claim Service Unit
COUNTY OF KEFW Administrative Center 1115 Truxtun Avenue, 4th Floor Bakersfield, CA 93301 Telephone: (661) 8683801 Fax: (661) 8683875

NOTICE OF ACTION TAKEN ON CLAIM September 15, 2006

EUGENE LEE LAW OFFICE OF EUGENE LEE 445 SOUTH FIGUEROA ST SUITE 2700 LOS ANGELES CA 90071 Name of Claimant(s): Date of Incident: David F. Jadwin, D.O., F. C. A. P. 6-14-2006

NOTICE IS HEREBY GIVEN that the claim you submitted to the Clerk of the Kern County Board of Supervisors on 7-5-2006 was not acted upon by the Board. The claim is deemed rejected by operation of law forty-five (45) days after the date the claim was so presented. WARNING Subject to certain exceptions, you have only six (6) months from the date this notice was deposited in the mail to file a court action on this claim. (See Government Code 945.6.) You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately. Very truly yours,

, ,

Tom Newell, Service Representative

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PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA ) ) ss COUNTY OF KERN ) I am employed in the County of Kern, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 1I 15 Truxtun Avenue, Bakersfield, CA 93301. On 9-15-2006, 1 served the foregoing document described as Notice of Action Taken on Claim in this action by placing a true copy thereof enclosed in a sealed envelope, addressed as follows: Eugene Lee Law Office of Eugene Lee 445 So. Figueroa St., Suite 2700 Los Angeles, CA. 90071 I am familiar with the firm's practice of collection and processing correspondencefor mailing. Under that practice, it would be deposited with the U. S. Postal Service on that same day with postage thereon fully prepaid at Bakersfield, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Tom Newell

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EXHIBIT 3: Plaintiff’s First Supplemented Tort Claims Act Claim

USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF SUPPLEMENTAL BRIEF PURSUANT TO COURT’S ORDER OF MARCH 2, 2009 5

04/23/2007

15:35

18182443550

JADWIN CHA

PAGE

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SUPPLEMENTED
CLAIM AGAINST THE COUNTY OF KERN
(Government Code §§ 910,910.2 I\; 910.4)

This claim must be filed with the Clerk of the Board of Supervisors, 1115 Truxtun Ave., 5'" Floor, Bakersfield, California 93301. ff it is a claim for death. injury to person, iniYrx to personal property or inlurv to growing crops, it must be filed within six months after the accident or event giving rise to the claim. ff it is a claim for any other causa of action, it must be filed within one year after the event(sJ giving rise to the claim. You must complete both sides and sign the claIm form for the cleim to be valid. Complete information must be provided. If the spece provided is inadequate, please use additional paper and identify information by paragraph number. 1. State the name and mai ling address of claimant:
~eather

David F. Jadwin, D.O., F.e.A.p., 1635

Ridge Dr, Glendale, eA 91207-1035

2.

State the mailing address to which claimant desires notices from the County to be sent: Law Office of Eugene Lee, 555 W 5th St, Ste 3100, LOS Angeles, CA 90013

3_

State the date, place and other circumstances of the <lcciqent or event(s} giving rise to the claim.

See attachment.

4.

Provide a general description of th8 injury, damage or loss incurred so far as it may ba known:

See attachment.

1

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5.

Provide the name or names of the public employee or employees causing the injury, damage or loss, if known:

Peter B~yan, Irwin Harris, Eugene Kercher, Scott Ragland, Jennifer Abraham,

William Roy, Toni Smith

6.

Regarding the amount claimed (including estimated amount of any prospective injury, damage or loss known as of the time the daim is filed): If less than ten thousand dollars ($10,000), state the amount: $, If more than ten thousand dollars, would the claim be a limited civil case (less than $25,000)7 (Circle one) Yes
,

7.

Please state any additional information which may be helpful in considering this claim:
B~~mann,

Complainant met with Eernard

Kern CQunty Counsel, with respect

to the foregoing on February 9, 2006.

Claimant must date and sign below.

B.

Signed this

2- ""b

rd

/l..-{
day of {'let-,

,2°4.

~~k SIGN;:A~TU::::R':':E""---CLAIMANT'S

WARNING! IT IS A CRIMINAL OFFENSE
TO FILE A FALSE CLAIM (Penal Code §72)
(3/OJ)

Doc #896)0
S;~IJ.im.FOIW-doo

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ATTACHMENT – CLAIM AGAINST THE COUNTY OF KERN

3.

State the date, place and other circumstances of the accident or event(s) giving rise to the claim.

Please see the Complaint attached hereto, which contains a complete description of the dates, places, and other circumstances of events giving rise to Complainant’s claims. Complainant originally filed the Complaint with the US District Court for the Eastern District of California on January 8, 2007. 4. Provide a general description of the injury, damage or loss incurred so far as it may be known:

With respect to the Defendants named in the Complaint, i.e., County of Kern, Peter Bryan, Eugene Kercher, Irwin Harris, Scott Ragland, Jennifer Abraham, William Roy, and Toni Smith: Pro rata loss or reduction of annual employment compensation of approx. $400,000 for the period from (i) on or about Dec. 2005 to Oct. 4, 2007 (end of current contract employment period) due to demotion, sick leaves and vacation time, and (ii) from Oct. 2007 until such time as complainant is able to secure comparable position with comparable pay after engaging in a diligent job search. Complainant believes his career as a pathologist is effectively at an end due to his age and the dearth of pathology chair positions in the US. General emotional distress (and reimbursement of associated medical expenses). Loss of reputation. Punitive damages. Attorney fees and other costs.

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1 2 3 4 5 6 7 8

Eugene Lee (SB# 236812) LAW OFFICE OF EUGENE LEE 555 West Fifth St, Suite 3100 Los Angeles, CA 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: elee@LOEL.com Attorney for Plaintiff David F. Jadwin, D.O. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DAVID F. JADWIN, D.O.

Case No. 1:07-cv-26 FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF. Retaliation [Health & Safety Code § 1278.5]; II. Retaliation [Lab. Code § 1102.5]; III. Retaliation [Gov’t Code §§ 12945.1, et seq; 2 C.C.R. § 7297.7(a)]; IV. Interference with FMLA Rights [29 U.S.C. §§ 2601, et seq.]; V. Violation of CFRA Rights. [Gov’t Code §§ 12945.1, et seq.]; VI. Disability Discrimination [Gov’t. Code § 12940(a)]; VII. Failure to Provide Reasonable Accommodation [Gov’t Code § 12940(m)]; VIII. Failure to Engage in Good Faith In An Interactive Process [Gov’t Code § 12940(n)]; IX. Defamation [Civ. Code §§ 45- 47]; and X. Procedural Due Process Violation [14th Amendment of U.S. Constitution; 42 U.S.C. § 1983]. XI. Violation of FLSA [29 U.S.C. §201 et seq.] JURY TRIAL DEMANDED I.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 vs.

Plaintiff COUNTY OF KERN; PETER BRYAN (both individually and in his former official capacity as Chief Executive Officer Of Kern Medical Center); IRWIN HARRIS, M.D; EUGENE KERCHER, M.D. (both individually and in his official capacity as a President of Medical Staff of Kern Medical Center); JENNIFER ABRAHAM, M.D. (both individually and in her official capacity as Immediate Past President of Medical Staff at Kern Medical Center); SCOTT RAGLAND, M.D. (both individually and in his official capacity as President-Elect of Medical Staff of Kern Medical Center); TONI SMITH, (both individually and in her official capacity as Chief Nurse Executive of Kern Medical Center); WILLIAM ROY, M.D.; and DOES 1 through 10, inclusive. Defendants.

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1 NATURE OF THE ACTION 2 This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing 3 physician with disabilities, against his employer, (i) the County of Kern (“Defendant County” or 4 “the County”); ) (ii) individual Defendants Peter Bryan (“Bryan”), Chief Executive Officer of 5 Kern Medical Center (“KMC”); Eugene Kercher, M.D., President of Medical Staff at KMC 6 (“Kercher”); Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC 7 (“Abraham”); Scott Ragland, M.D., President-Elect of Medical Staff at KMC (“Ragland”); and 8 Toni Smith, Chief Nurse Executive of KMC, (“Smith”), both personally and in their official 9 capacities; and (iii) individual Defendants Irwin Harris, M.D., Chief Medical Officer of KMC 10 (“Harris”); William Roy, M.D., Chief of the Division of Gynecologic Oncology at KMC 11 (“Roy”); and DOES 1 through 10. 12 Plaintiff’s claims against his employer, Defendant County, allege violations of section 13 1278.5 of the Health & Safety Code 1 which prohibits retaliation against a health care provider 14 who reports suspected unsafe care and conditions of patients in a health care facility; section 15 1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or 16 refusing to participate in suspected violations of the law; the California Family Rights Act 17 (sections 12945.1, et seq., of the Government Code) (“CFRA”) and the Family and Medical 18 Leave Act (sections 2601, et seq. of the United States Code) (“FMLA”) which prohibit 19 interference with an employee’s right to medical leave and retaliation for an employee’s exercise 20 of the right to medical leave; and the Fair Employment and Housing Act [subdivisions (a), (m) & 21 (n) of section 12940 of the Government Code] (“FEHA”) which prohibits discrimination against 22 23
1

All statutory references are to California Codes unless otherwise specified.

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an employee with a disability, failure to provide reasonable accommodation, and failure to engage in an interactive process; and recovery of wrongfully deducted wages under the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.) (“FLSA”). Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation; and also sues each of the individual Defendants except for Roy and Harris, both in their personal capacity and in their official capacity as members of the KMC Joint Conference Committee (“JCC”), for violation of Plaintiff’s 14th Amendment of the United States Constitution right to procedural due process pursuant to 42 U.S.C. § 1983 (“Due Process”). Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and just relief resulting from Defendants’ unlawful conduct, and as grounds therefor alleges: JURISDICTION AND VENUE 1. This Court has federal question jurisdiction over the FMLA, Due Process, and

FLSA claims pursuant to 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiff’s transactionally-related state claims pursuant to 28 U.S.C. § 1367. 2. Venue is proper in Fresno in the Eastern District of California, as a substantial

part of the events and omissions giving rise to this claim occurred in the County of Kern, California. INTRADISTRICT ASSIGNMENT 3. Assignment to Bakersfield is proper pursuant to Civil Local Rule 3-120

(Appendix A) because the events giving rise to this civil action occurred in Bakersfield in the County of Kern, California.

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PARTIES At all material times herein, Plaintiff David F. Jadwin, D.O. (“Plaintiff”) has

continuously been an employee of Defendant County, a citizen of the United States and California; and a resident of Los Angeles County, California. 5. At all material times herein, Plaintiff was an individual with disabilities within the

meaning of Section 12926(i) & (k) of the Government Code. 6. On information and belief, at all material times herein, Defendant County is a

local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is operating in Kern County, California. 7. At all material times herein, the County has continuously been an employer

within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Government Code § 12945.2(b)(2)], FEHA [Government Code § 12926(d)], and FLSA [29 U.S.C. § 203], engaged in interstate commerce and regularly employing more than fifty employees within seventy-five miles of Plaintiff’s workplace. 8. On information and belief, at all material times herein, Defendant Peter Bryan is a

citizen of Colorado, and a resident of Denver, Colorado, and was Chief Executive Officer of KMC, and a member of the JCC. 9. On information and belief, at all material times herein, Defendant Eugene Kercher

is a citizen of California, a resident of Kern County, California, and President of KMC Medical Staff, and a member of the JCC. 10. On information and belief, at all material times herein, Defendant Irwin Harris is

a citizen of California, and a resident of Kern County, California, and Chief Medical Officer at KMC, and a non-voting member of the JCC.

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11.

On information and belief, at all material times herein, Defendant Jennifer

Abraham is a citizen of California, and a resident of Kern County, California and Immediate Past President of KMC Medical Staff, and a member of the JCC. 12. On information and belief, at all material times herein, Defendant Scott Ragland

is a citizen of California, and a resident of Kern County, California, President-Elect of KMC Medical Staff, and a member of the JCC. 13. On information and belief, at all material times herein, Defendant Toni Smith is a

citizen of California, and a resident of Kern County, California, and Chief Nurse Executive of KMC, and a member of the JCC. 14. On information and belief, at all material times herein, Defendant William Roy is

a citizen of California, and a resident of Kern County, California and Chief of the Division of Gynecologic Oncology at KMC. 15. The true names and capacities of Defendants DOES 1 through 10, inclusive, are

presently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. Plaintiff will amend this complaint to set forth the true names and capacities of said Defendants when they are ascertained. Plaintiff is informed and believes, and upon such information and belief alleges, that at all times relevant, each of the fictitiously-named Defendants was an agent, employee, or co-conspirator of one or more of the named Defendants, and was acting within the course and scope of said agency or employment. Plaintiff is further informed and believes, and upon such information and belief alleges, that each of the fictitiously named Defendants aided, assisted, approved, acknowledged and/or ratified the wrongful acts committed by Defendants as alleged herein, and that Plaintiff’s damages, as alleged herein, were legally caused by such Defendants.

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FACTUAL BACKGROUND A. STATEMENT OF THE CASE 16. Plaintiff is a highly-qualified and capable pathologist with numerous professional

accomplishments that have included leadership roles in national, state and local pathology and medical societies. Plaintiff received extensive education and training at reputable academic and medical institutions. Plaintiff has managed several clinical laboratories and pathology departments that have achieved accreditation by the College of American Pathologists, frequently "with distinction.” Plaintiff has also been recognized by numerous pathologists and physicians for his professional leadership and commitment to set and uphold rigorous and ethical standards for patient care quality and safety. 17. In late 2000, Plaintiff was recruited to assume the position of Chair of the

Pathology Department at KMC, a teaching hospital owned and operated by Defendant County. Plaintiff was recruited in part to raise standards of patient care quality and safety at KMC. Plaintiff immediately set about implementing, among other things, a best-practices peer review system in the Pathology Department. 18. In 2001, Plaintiff began to report concerns to key members of KMC’s medical

staff and administration about the unacceptably high levels of unsatisfactory or non-diagnostic fine needle aspirations (“FNA”) – a method of using a needle and syringe to obtain deep internal tissue samples of vital organs – being taken by the Radiology Department at KMC for diagnosis by the Pathology Department. In 2003, Plaintiff began to report concerns to key members of KMC’s medical staff and administration about ineffective and unnecessary blood transfusions and an unacceptably high incidence of lost or incomplete product chart copy certifications (“PCC”) required for accurate tracking of dangerous blood transfusions. In 2004, Plaintiff began

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to report concerns to key members of KMC’s medical staff and administration about the need for instituting a policy of requiring KMC Pathology Department review prior to undertaking significant surgical procedures based upon the reports of outside pathologists (“Internal Pathology Review”). In 2005, Plaintiff reported a concern to key members of KMC’s medical staff and administration about an inappropriate radical hysterectomy (cancer surgical procedure for removal of all female reproductive organs and regional lymph nodes) performed by Roy on a patient with a benign endometriotic cyst (“Roy Hysterectomy”). Also in 2005, Plaintiff began to report concerns to key members of KMC’s medical staff and administration about the need to review a series of serious diagnostic errors committed by a former KMC pathologist, including the failure to identify invasive adenocarcinoma in several prostate needle biopsies (“Prostate Biopsy Errors”). Also in 2005, Plaintiff reported concerns to KMC administration that KMC physicians had performed surgery on a wrong patient due to an error which Plaintiff believed would have been less likely had KMC implemented Internal Pathology Review per Plaintiff’s recommendation. Plaintiff reported several other concerns about inappropriate patient care and noncompliance with quality control standards. In February of 2006, Plaintiff met with Bernard Barmann, County Counsel for the County of Kern (“Barmann”), to report the foregoing concerns. 19. In 2005, Roy began a campaign of making defamatory statements impugning

Plaintiff’s professional competence. Events culminated in October of 2005, when Kercher, Harris, Ragland and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting from a 15- to 20-minute presentation given by Plaintiff during a monthly KMC oncology conference that allegedly exceeded conference time limits by approximately ten minutes. Plaintiff’s presentation had attempted to highlight several of Plaintiff’s above-mentioned

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concerns regarding Internal Pathology Review and their potential impact upon deciding the correct surgical procedure for the patient under discussion. The presentation was stopped before Plaintiff could present the key diagnostic conclusions of his presentation. 20. After the conference, Harris solicited letters of disapprobation from conference

participants, including Roy. Roy submitted a letter (“Roy Letter”) containing several false statements of fact which defamed Plaintiff to other members of KMC’s medical staff and administration. On information and belief, Harris and DOES 1 through 10 republished the Roy Letter to third parties. Several KMC medical and administration officers including Bryan and Kercher were aware of Roy’s, Harris’s and DOES 1 through 10’s acts of defamation, but refused to intercede, and possibly approved or encouraged them. 21. In December of 2005, Plaintiff began medical leave initially in the form of

medically necessary reduced work schedule due to severe depression which was later extended to June 16, 2006. It was not until on or about March 2, 2006, that Plaintiff was finally provided with a Request for Leave of Absence form which he then submitted to KMC’s HR Department. Plaintiff also received a document entitled “Designation of Leave (Serious Health Condition of Employee-Intermittent)” from the HR Department at KMC, which included a written guarantee of Plaintiff’s reinstatement to his same or equivalent position with same pay, benefits and terms and conditions of employment upon his return from his leave. 22. During Plaintiff’s sick leave, Bryan issued a series of verbal and written

ultimatums to Plaintiff which threatened him with termination or demotion upon return from his leave, thereby giving notice that Plaintiff was not in fact guaranteed reinstatement to his same or equivalent position. In a meeting in April of 2006, Bryan ordered Plaintiff to cease his reduced work schedule and begin full-time leave, despite the fact that just days before, Plaintiff had

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submitted a written request for extension of his reduced work schedule for an additional six months to one year because of his serious medical condition. On June 14, 2006, two days before Plaintiff’s medical leave was allegedly due to end, Bryan informed Plaintiff that he was denying Plaintiff reinstatement to his same or equivalent position, and that he was in fact demoting Plaintiff to a staff pathologist position, effective June 17, 2006, because Plaintiff had taken excessive sick leaves; Plaintiff’s base salary was also ultimately reduced over $100,000 (over 35%) as a result (such demotion and pay reduction are hereinafter referred to collectively as “demotion” or “demoted”). 23. Plaintiff resumed full-time work as a staff pathologist on October 4, 2006.

Plaintiff continued to suffer a hostile work environment and retaliation. On or about November 28, 2006, after almost six years of trying to reform KMC from within, Plaintiff finally blew the whistle on KMC, formally reporting his Concerns to the Joint Commission on Accreditation of Hospital Organizations, the College of American Pathologists, and the California Department of Health Services (“Authorities”). On December 4, 2006, Plaintiff submitted a written complaint to KMC leadership about numerous additional concerns regarding the quality of patient care and the deterioration of the pathology department. On December 7, Plaintiff was placed on involuntary administrative leave allegedly “pending resolution of a personnel matter”. 24. On December 13, 2006, Plaintiff sent a letter to David Culberson (“Culberson”),

interim Chief Executive Officer of KMC, and carbon-copied to members of KMC’s medical staff leadership, informing him that he had reported his Concerns to the Authorities. 25. On March 28, 2007, KMC authorized Plaintiff to access his office in order to

retrieve his personal computer files. Upon his arrival, Dr. Dutt informed him that his office was now locked and that Dr. Dutt now had custody of the key, that Plaintiff’s file cabinet and

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computer had been physically removed and retasked for other purposes at KMC, and that Plaintiff would not be able to access his personal computer files after all. 26. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had

yet to be provided any explanation for his involuntary leave or any indication as to whether or when it would end so that he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone during working hours was threatening to erode his pathology skills, jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was denying him the opportunity to earn income from professional fee billing, and (iv) part-time work was deemed therapeutic for him by his physician and that the confinement to his house during working hours was having the opposite effect of severely exacerbating his depression. 27. To date, Plaintiff remains on involuntary leave, with no explanation therefore or

any indication as to whether or when it will end. B. EMPLOYMENT RELATIONSHIP 28. On October 24, 2000, the County entered into an employment contract with

Plaintiff (“Initial Contract”), hiring him to a full-time position as Chair of the Pathology Department at KMC and as Medical Director of the KMC clinical laboratory (“Lab Director”) for an employment term ending on November 30, 2006. As Lab Director, Plaintiff’s job duties included Medical Director of KMC’s blood bank and transfusion service. 29. On or about November 12, 2002, the County modified Plaintiff’s employment

contract to reflect an increase in his compensation and leave accrual rate, among other things. This second employment contract dated as of October 5, 2002 (“Second Contract”) extended Plaintiff’s employment term to October 4, 2007. A true and correct copy of the Second Contract is attached hereto as Exhibit 1, and incorporated by reference herein.

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30.

The Pathology Department and consequently the Chair of Pathology is

customarily referred to as “the conscience of a hospital”, and Plaintiff’s job duties extended “beyond (his) own department and (he was) expected to be an effective contributor to the overall improvement efforts of the hospital as a whole.” Such duties included participation in many hospital committees including KMC’s Quality Management Committee. 31. According to Exhibit A of the Initial Contract, the County expected Plaintiff to

spend 80 to 90% of his time on clinical duties of a pathologist, and 10 to 20% of his time on administrative duties as Chair of the Department of Pathology (“Chair of Pathology”) and Lab Director. 32. Article V.10 of the Second Contract provides that Plaintiff will not be deemed a

classified employee, or have any rights or protections under the County's Civil Service Ordinance, rules or regulation. 33. Article II.3(B)(1) of the Second Contract guarantees that Plaintiff’s base salary

will be based on a benchmark salary in proportion to his full-effort commitment. In turn, the benchmark salary will be based on a national standard with four steps (A-D) with three criteria for step placement: clinical experience, teaching and administrative duties as set forth in the KMC Administrative Policies and Procedures Manual (“KAPP Manual”). 34. On information and belief, at the time of his hire, the County placed Plaintiff’s

salary level at Step C . 35. Article III.4 of the Second Contract entitles Plaintiff to the same right to unpaid

leave of absence as those provided to a regular County employee under the County’s policy, including six months cumulative unpaid leave of absence for illness or disability pursuant to Rule 1201.20 of the Rules of the Civil Service Commission for the County of Kern (“CSC

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Rules”). 36. Article IV.1(B) of the Second Contract requires “cause” for termination of

Plaintiff’s employment, which cause is defined as “serious administrative violation and/or unsatisfactory clinical performance.” 37. Article IV.3 of the Second Contract entitles Plaintiff to administrative review of

any corrective action for unsatisfactory clinical performance pursuant to the Bylaws of the Medical Staff of KMC (“Bylaws”); and for administrative review of any corrective action for violation of administrative policies of the County or KMC pursuant to the KAPP Manual. C. WHISTLEBLOWING 38. Throughout the course of his employment by KMC, Plaintiff has advocated for

appropriate patient care and compliance with the quality accreditation standards of the Joint Commission for the Accreditation of Hospital Organizations, the College of American Pathologists, the American Association of Blood Banks and the American College of Surgeons Commission on Cancer as well as applicable state and federal regulations designed to ensure safe care and conditions of patients. 39. Plaintiff reported his various concerns (“Concerns”) about inappropriate and/or

suspected unsafe patient care and conditions and non-compliance with applicable laws and regulations and accreditation standards to Bryan and key members of KMC’s medical staff, including but not limited to the following: (i) beginning in 2001, Plaintiff reported the unacceptably high levels of unsatisfactory or non-diagnostic FNAs being taken by the Radiology Department at KMC; (ii) beginning in 2003, Plaintiff reported the unacceptably high incidence of lost or incomplete PCC; (iii) beginning in 2004, Plaintiff reported the need for Internal Pathology Review; (iv) beginning in 2005, Plaintiff reported the Roy Hysterectomy; (v)

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beginning in 2005, Plaintiff reported the need to review the Prostate Biopsy Errors; and (vi) beginning in 2005, Plaintiff reported that KMC physicians had performed surgery on a wrong patient due to an error which Plaintiff believed would have been less likely had KMC implemented Internal Pathology Review. Unfortunately, Plaintiff’s reports not only appeared to fall on deaf ears, but also generated resentment and hostility among his peers at KMC. 40. On or about December 12, 2005, Plaintiff’s former attorney, Michael Young

(“Young”), sent a letter to Barmann, requesting Barmann meet with Plaintiff to discuss his Concerns. 41. On or about February 9, 2006, Barmann and Barnes met with Plaintiff. Plaintiff

reported his various Concerns, as well as the retaliation, defamation and hostile work environment Plaintiff was experiencing at KMC. 42. Finally, on or about November 28, 2006, after almost six years of trying to reform

KMC from within in vain, Plaintiff formally reported his Concerns to the Authorities. 43. On December 13, 2006, Plaintiff sent a letter addressed to Culberson, and carbon-

copied to members of KMC’s medical staff leadership, informing him that “KMC leadership has left me no choice but to report the above issues to the appropriate state and accrediting agencies”. D. DEFAMATION 44. In 2005, Plaintiff had reported the need for Internal Pathology Review to key

members of KMC medical staff and administration. Roy refused to submit outside pathology reports for Internal Pathology Review prior to surgery, preferring instead to refer all of his pathology cases to an acquaintance at the University of Southern California without intereference from KMC’s Pathology Department.

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45.

On or about April 15, 2005, Roy sent a letter which was addressed to Plaintiff and

carbon-copied to Dr. Leonard Perez (“Perez”), Chair of the OB-GYN Department at KMC. The letter contained the following statements of fact: Additionally, I cannot institute adjuvant therapy in a timely manner when it takes weeks and sometimes months to get an accurate diagnosis from your department…. Most importantly, delays in instituting appropriate adjuvant therapy due to delays in obtaining an accurate diagnosis, or instituting inappropriate therapy based on an inaccurate diagnosis can negatively affect patient survival. 46. Roy’s statements regarding delays of weeks and months were false. Perez

8 reasonably understood that the statements were about Plaintiff. Perez reasonably understood the 9 statements to mean that Plaintiff was not managing the Pathology Department in a competent 10 manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy 11 acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a 12 significant loss of reputation and confidence among his peers at KMC. 13 47. 14 copied to Perez, Dr. Maureen Martin, Chair of Surgery (“Martin”), Kercher and Bryan. The letter 15 stated: “Please refrain from making statements such as it takes weeks and sometimes months to 16 get an accurate diagnosis from your department without citing specific instances. In my 17 experience, such statements are typically untrue and consequently are unethical if not supported 18 by facts.” As officers of KMC, Kercher and Bryan approved, accepted, and/or failed to intercede 19 to protect Plaintiff from Roy’s defamatory acts, and in so doing, ratified them. 20 48. 21 Pathology Department and had submitted certain pathology reports for second-level peer review 22 and investigation. Plaintiff requested that Harris identify the pathology reports in question but 23 Harris refused. Later, Plaintiff determined that no second-level peer review ever occurred. 24 In May of 2005, Harris informed Plaintiff that Roy had voiced concerns about the On or about April 20, 2005, Plaintiff sent a letter addressed to Roy and carbon-

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49.

On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was making

negative comments about the Pathology Department. 50. On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carbon-

copied to Perez, Martin, Harris, Kercher and Bryan. The letter stated: It has come to my attention that you are making negative statements to numerous key members of the medical staff regarding pathology reports issued by this department. You are reported by others to claim that several of KMC pathology diagnoses do not agree with outside diagnoses rendered by other outside pathologists and that these discrepancies have or would have changed patient management. It would appear from these actions that you are claiming that our diagnoses are not correct. I do not recollect any true, substantial discrepancies between diagnoses rendered by this department and outside pathology departments based upon retrospective review of our cases since my arrival in December 2000. It is reported that you claim to have in your possession several such reports detailing incorrect diagnoses rendered by our department. It is also my understanding that you have been asked on several occasions to produce examples of these discrepancies, and as of yet have not produced any such reports to individuals that have made these requests. To demonstrate and support the accuracy of your claims, I request that you produce copies of these reports for my review by July 15, 2005. 51. Roy’s statements of fact regarding incorrect diagnoses by the Pathology

14 Department were false. The key members of the KMC medical staff who heard the statements 15 reasonably understood that the statements were about Plaintiff and reasonably understood the 16 statements to mean that Plaintiff was not managing the Pathology Department in a competent 17 manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy 18 acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a 19 significant loss of reputation and confidence among his peers at KMC. As officers of KMC, 20 Harris, Kercher and Bryan approved, accepted, and/or failed to intercede against Roy’s 21 defamatory acts and in so doing, ratified them. 22 52. 23 copied to Harris, Bryan and Perez. The letter stated: 24 On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon-

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I was quite surprised to receive your letter of June 5th. The "discrepancies" should be well known to you as I have brought them to your attention many times, both in the presence of Dr. Perez, and in a letter to you a couple of months ago, as well as multiple phone conversations. The inaccuracies, delays and refusals to refer specimens for outside review continue. The matter has been appropriately reported to the administration for a quality assurance review, as I have had no success in my pleadings to you directly. 53. Roy’s statements of fact regarding the existence of “discrepancies” and the

bringing of them to Plaintiff’s attention “many times” and “in the presence of Dr. Perez” were false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and reasonably understood the statements to mean that Plaintiff was neither managing the Pathology Department in a competent manner nor being truthful about Roy’s disclosures of the facts and circumstances underlying his defamatory statements. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a significant loss of reputation and confidence among his peers at KMC. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to intercede against Roy’s defamatory acts and in so doing, ratified them. 54. Moreover, Roy’s statement of fact that he had reported the matter to KMC

administration for quality assurance review was false. Harris, Bryan and Perez reasonably understood that the statement was about Plaintiff and reasonably understood the statements to mean that Plaintiff was not managing the Pathology Department in a competent manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a significant loss of reputation and confidence among his peers at KMC. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to intercede against Roy’s defamatory acts and in so doing, ratified them.

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55.

On October 12, 2005, Plaintiff gave a presentation at the monthly KMC oncology

conference (“Oncology Conference”) highlighting concerns regarding a patient that might need a hysterectomy, and the need for Internal Pathology Review. 56. Plaintiff’s presentation lasted approximately 15 to 20 minutes, which exceeded

alleged conference time limits by approximately ten minutes. Plaintiff was stopped before he could present his final slides stating his patient care quality conclusions. 57. On information and belief, presenters at prior and subsequent Oncology

Conferences frequently exceeded time limits without interruption, incident, or reprimand. 58. Roy, Bill Taylor, Vice-Chair of Surgery, and Albert McBride, the Cancer

Committee Liaison, attended Plaintiff’s presentation at the October 12 Oncology Conference and were requested by Harris to give him letters criticizing Plaintiff’s time infraction. 59. In response, Roy sent a letter (“Roy Letter”), dated October 13, 2005, addressed

to Harris. The Roy Letter stated in relevant part: With respect, Dr. Jadwin is a small rural community hospital pathologist, with very limited experience and no specialty training in regard to Gynecologic Oncologic Pathology…. Dr. Jadwin is not a clinician, and has neither the fund of knowledge nor the experience to make any recommendations regarding the treatment of patients, much less criticize the care provided by those, such as myself, whose training and experience were attained at some of the highest seats of learning in the U.S and abroad. Additionally, as you are aware, it is not infrequent that Dr. Jadwin's diagnoses are in err when reviewed by outside specialists, as in this particular case. The management of the patient would have been inappropriate if we accepted Dr. Jadwin's report, which as you know, was different from two other pathologists in his own department (three different opinions). I have no confidence in Dr. Jadwin and I am actively pursuing the possibility of having all specimens from the Gynecologic Oncology service evaluated outside, as is currently done for the Neurosurgery service…. I have discussed these issues with Dr. Perez, Chairman of the Department of Obstectrics and Gynecology, and he assures me of his full support. 60. The Roy Letter contained the following false statements of fact: (i) Plaintiff is a

23 small rural community hospital pathologist, (ii) Plaintiff has very limited experience in 24

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Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the fund of knowledge nor the experience to make any recommendations regarding the treatment of patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that Plaintiff’s diagnoses are in err when reviewed by outside specialists, as in this particular case, (vi) the management of the patient would have been inappropriate if Plaintiff’s report had been accepted, and (vii) Plaintiff’s report was different from two other pathologists in his own department, suggesting the deficiency of his report. Harris reasonably understood that the statements were about Plaintiff and reasonably understood the statements to mean that Plaintiff’s credentials and abilities as a pathologist and physician were deficient. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy acted with malice in publishing the false statements. The Roy Letter exceeded the scope of Harris’s request. Roy defamed Plaintiff despite Plaintiff’s numerous prior requests to stop defaming him. As a consequence, Plaintiff experienced a significant loss of reputation and confidence among his peers at KMC. As an officer of KMC, Harris approved, accepted, and/or failed to intercede against Roy’s defamatory acts and in so doing, ratified them. 61. Plaintiff is informed and believes, and thereupon alleges, that Harris subsequently

republished the Roy Letter to DOES 1 through 10, and that DOES 1 through 10 further republished the Roy Letter to other members of KMC staff. Such other members of KMC staff reasonably understood that the statements contained in the Roy Letter were about Plaintiff and reasonably understood such statements to mean that Plaintiff’s credentials and abilities as a pathologist and physician were deficient. Harris and DOES 1 through 10 failed to use reasonable care to determine the truth or falsity of the statements. Harris and DOES 1 through 10 acted with actual malice in publishing the false statements. As a consequence, Plaintiff experienced a

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significant loss of reputation and confidence among his peers at KMC. As officers of KMC, Harris, and DOES 1 through 10 accepted, and/or failed to intercede against Roy’s defamatory acts or their subsequent republication, and in so doing, ratified them. 62. On or about October 17, 2005, Plaintiff was ordered to attend a meeting with

Kercher, Harris and Ragland who subjected Plaintiff to humiliating ridicule, yelling and inappropriate questioning regarding Plaintiff’s alleged violation of Oncology Conference time limits. Kercher, Harris and Ragland informed Plaintiff that they had received letters of disapprobation (“Disapprobation Letters”) from three conference participants – one of which was the Roy Letter – and would be issuing a letter of reprimand later that day which would be entered into Plaintiff’s medical staff file. When Plaintiff asked to see the Disapprobation Letters, Kercher, Harris and Ragland refused to provide them. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted, and/or failed to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through 10, and in so doing, ratified such defamatory acts. 63. Later that day, Harris, Kercher, Ragland and Abraham issued a formal letter of

reprimand addressed to Plaintiff (“Reprimand Letter”). The Reprimand Letter stated: “Your repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous attendants, three of which have written letters of their dissatisfaction, which will be entered into your medical staff file.” The three letters to be entered into Plaintiff’s medical staff file included the Roy Letter. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted, and/or failed to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through 10, and in so doing, ratified such defamatory acts. 64. During the period from on or about October 17, 2005 to on or about January

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2007, Plaintiff submitted numerous requests to Harris, Ms. Karen Barnes, Deputy County Counsel for the County of Kern (“Barnes”), and Bryan to see the Disapprobation Letters. He was continuously refused. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through 10, and in so doing, ratified such defamatory acts. 65. On or about December 12, 2005, Young sent a letter to Barmann stating:

Recently, Dr. Jadwin was advised that several of the staff physicians had written letters of dissatisfaction regarding Dr. Jadwin’s professionalism and was advised that these letters were placed into his personnel/medical staff file. When the doctor asked to see these letters, he was refused access to them and was subsequently told that the letters had not been placed into his file. Dr. Jadwin then sent an e-mail to Deputy County Counsel, Karen Barnes, copy attached, regarding an opinion with respect to his right to inspect the file. At this juncture, there has been no reply to his request. Needless to say, Dr. Jadwin is extremely upset and emotionally distraught over the present state of affairs. 66. On or about January 6, 2006, Barnes sent a letter on behalf of Barmann and

addressed to Young. The letter included as an attachment a copy of the Roy Letter, redacted to conceal Roy’s identity. This letter afforded Plaintiff his first opportunity to see the Roy Letter and the defamatory statements contained therein. 67. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:

I have been victim of professional mistreatment by a few members of medical staff. You are aware of these instances. I believe this harassment is in response to the many quality management issues that I have raised. This harassment has led me develop depression, anxiety and insomnia. Most recent issue involving the October Oncology Conference is still unresolved. I request administrative leave with pay until this issue is resolved. 68. On or about February 10, 2006, Plaintiff sent a letter addressed to Roy,

21 challenging the truthfulness of the claims contained in Roy’s letter of July 15, 2005, that Roy had 22 reported certain patient cases handled by the Pathology Department to the KMC administration 23 for quality assurance review. Plaintiff stated “to my knowledge no credible report has been 24

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submitted. As of today, I have not received notice of any deficient reports from you.” Plaintiff further challenged the truthfulness of other defamatory statements contained in the Roy Letter and demanded “immediate proof of these allegations within 14 days”. Plaintiff went on to state that if Roy failed to produce such proof, then Roy should issue an apology meeting Plaintiff’s specifications. 69. On or about February 21, 2006, Bryan sent a letter addressed to Plaintiff, stating

in relevant part: I received a copy of your letter to Dr. Roy dated February 10, 2006 and I must say that I am disappointed in your decision to send it… I know that you felt justified in sending the letter. You feel that Dr. Roy besmirched your reputation and challenged your professional competency. Furthermore, you feel that there is no evidence to support his characterizations of you and you are demanding that he recant his comments and apologize. All of these things may or may not be as you say. However, your decision to confront the issues this way is not a good one…. It is not your message that people react to but rather how you deliver it…. Dr. Roy's letter was correspondence submitted through the medical staff structure, and the staff officers and Chief Medical Officer have the obligation to decide what to do with that input. They can either ignore that correspondence because of a lack of supporting evidence, call for a review of the quality of your work, or cause a meeting to happen between you and Dr. Roy and Dr. Perez to further clarify the basis of Dr. Roy's concerns. 70. As an officer of KMC, Bryan approved, accepted, and/or failed to intercede

16 against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through 17 10, and in so doing, ratified them. 18 71. 19 carbon-copied to Bryan, stating: 20 21 22 23 24 I am further requesting an investigation of Dr. Roy’s professional behavior by the medical staff… [H]e has made outrageous false statements about the pathology department and myself, which cause great concern about his ethical integrity…. I think it is outrageous that the medical staff sits by and lets this individual act in such a pompous, destructive manner. I feel a personal duty to the pathology department (and the hospital) to push the issue of his bad conduct in whatever venue may be needed to control the actions of this individual. On or about March 16, 2006, Plaintiff sent an email addressed to Kercher and

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1 72. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Dr. Jadwin is very upset with the alleged statements attributable to you regarding his reputation in the medical community. Unless you come forward with facts in support of your position to show the truth thereof or issue a written apology to Dr. Jadwin, he will have no alternative but to seek recourse against you for damaging his reputation. While professionals may justifiably have a difference of opinion regarding complex issues in the field of medicine, there is really no place for publishing statements about a colleague that are not true and intended to tarnish one’s reputation.” 73. To date, Plaintiff is informed and believes and thereupon alleges: (i) Roy has On or about March 30, 2006, Young sent a letter addressed to Roy, stating:

never responded to Plaintiff’s repeated requests for factual substantiation of Roy’s numerous defamatory statements; (ii) KMC never conducted an investigation into Roy’s professional misconduct; and (iii) Harris, Kercher, Bryan and Abraham have approved, accepted, and refused to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through 10. E. MEDICAL LEAVE 74. As of December 16, 2005, Plaintiff was eligible for twelve weeks of medical

leave under FMLA and CFRA pursuant to 29 C.F.R. § 825.110 and 2 C.C.R. § 72970(e), respectively, in that he had been regularly employed by Defendant County for 1,250 hours in the twelve months immediately prior to the start of his leave and had not taken any medical or family leave during that time. 75. An eligible employee’s rights under CFRA and FMLA include a “reduced work

schedule” pursuant to 29 C.F.R. § 825.203 that is “medically necessary” pursuant to 29 C.F.R. 825.117. 76. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his

psychiatrist’s certification stating that Plaintiff needed a reduced work schedule leave until at

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least March 16, 2006 because of his serious medical condition. 77. circumstances. 78. On or about December 16, 2005 Plaintiff began his medically necessary reduced Plaintiff’s notice to KMC of his need for medical leave was reasonable under the

work schedule that permitted him to perform all of his duties as Chair of Pathology, and reduced his schedule only as to his duties as a regular pathologist. 79. On or about March 2, 2006, Plaintiff was finally provided with a Request for

Leave of Absence form which he then submitted to KMC’s HR Department. KMC’s HR Department formally approved the leave on March 13, 2006. 80. Also on or about March 2, 2006, Plaintiff received a document entitled

“Designation of Leave (Serious Health Condition of Employee-Intermittent)” (“Leave Designation Notice”) from the HR Department at KMC that informed Plaintiff: You also have the right to be reinstated to the same or an equivalent job with the same pay, benefits and terms and conditions of employment on your return from leave. Please note that the leave provisions for County employees are more generous than those mandated by FMLA and CFRA and, accordingly, you may be eligible for more than the twelve (12) weeks of unpaid leave described above.” 81. On or about April 10, 2006, Plaintiff sent an email to Bryan stating: “I believe

that we have a meeting this Thursday at 1500. I can discuss a schedule with you. I have been working only to help out Phil and Savita during periods of shortage, and to keep on top of some administrative work. I am always available for necessary discussions. Just have Arlene or Tracy call me.” 82. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff,

purportedly memorializing Bryan’s April 13, 2006 meeting with Plaintiff in which he acknowledged, “Yes, the Department of Pathology continues to function well as it has for many

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years, and yes, you have made many positive changes in the department.” Bryan also acknowledged that Plaintiff’s whistleblowing activity had created “the dysfunctional relationship you have with some key members of the staff” and asked for Plaintiff to either cease upsetting staff with his whistleblowing activity or to step down as Chairman on his return from medical leave. 83. On or about April 20, 2006, Plaintiff received notice from KMC’s HR

Department that his “Intermittent Leave of Absence” had expired on March 15 and that in order to extend his leave, he would need to submit a “Request for Leave of Absence” form to the HR Department by “no later than Tuesday, April 25, 2006”. 84. On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence

form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff needed an extension of his reduced work schedule leave for six months to one year because of his serious medical condition. 85. However, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and Steve

O’Conner of the HR Department (“O’Conner”) and ordered Plaintiff to convert his reduced work schedule to involuntary full-time medical leave despite the fact that Plaintiff was ready, willing, and able to continue working his reduced work schedule (“Forced FT Leave”). Bryan further told Plaintiff that he needed to know by June 16, 2006 whether Plaintiff would resign as Chair; and that if he resigned he would be in the same position as Adam Lang, a former staff pathologist at KMC, who retained only hospital privileges but whose employment contract had been terminated. Hence, Bryan threatened Plaintiff not only with removal from chairmanship, but termination of the Second Contract, thereby giving notice that he would not honor any guarantee of reinstatement to Plaintiff’s same or equivalent position.

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86.

On or about April 28, 2006, Bryan wrote a letter to Plaintiff purportedly

memorializing the April 26, 2006 meeting and stating that he required Plaintiff to go on full-time leave from May 1, 2006 to June 16, 2006 when Plaintiff’s right to medical leave would purportedly expire; and required Plaintiff to either return to work full-time on June 17, 2006 or resign, purportedly because “the hospital needs you here full-time.” 87. On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a

difficult recovery which limited his ability to breathe and exert himself for approximately one month. 88. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament

from his ankle in an accident which limited his ability to walk, stand or sit without elevating his ankle for approximately three months. 89. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, stating:

Unfortunately, I underwent sinus surgery in early May which took some time to recover from. Then last Monday, I suffered a serious fall down a staircase that will require a cast on my left ankle and impose serious restrictions on my mobility for at least four weeks. I would greatly appreciate an extension of the June 16 deadline as my physical ailments of late simply have not permitted me to consider and render such an important decision nor do they physically permit me to come to the office by June 16. 90. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing

Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology, thereby denying Plaintiff reinstatement to his same or equivalent position despite written guarantees to the contrary. The email stated: My response to your request for an extension of medical leave has a two part answer. First, I will extend leave to a Personal Necessity Leave for your employment status only. This means that you have 90 days of extended leave which will protect your overall employment status. At the end of this 90 day period, you must either return to duty or resign from employment. Second, I will not extend your leave as it relates to your appointment as Chairman, Department

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of Pathology. I am implementing the provisions of paragraph 9.6-4, REMOVAL, Medical Staff Bylaws, and withdrawing your appointment as Chairman, Department of Pathology. This institution needs to have full-time leadership in the department and because of your leave you have not been able to provide it. Should you return to work after the completion of your Personal Necessity Leave then your employment contract will be modified as mutually agreed to reflect that you are still an employed pathologist (should you choose this option), but you will not retain the duties and appointment of a chairman. My decision to do this, Dr. Jadwin, is based solely on your inability to provide consistent and stable leadership in the department for most of the past eight to nine months. You have used all of your sick and vacation time in addition to using all available time under the medical leave provisions of County policy. It is unfortunate that you had your accident which delayed your return but the hospital needs to move on. 91. Later, on or about June 14, 2006, Bryan sent a letter addressed to Plaintiff

reiterating that Bryan was rescinding Plaintiff’s Chairmanship of the Pathology Department because Plaintiff had “essentially been out on either full or part-time leave for the past eight or nine months” – an inaccurate statement – and because “the Department of Pathology needs a full-time chairman.” 92. On information and belief, on or about July 10, 2006, the JCC approved

Plaintiff’s removal from Chairmanship by a majority vote. 93. Plaintiff’s demotion breached the guarantee of reinstatement contained in the

Leave Designation Notice. 94. On or about September 18, 2006, Barnes sent Plaintiff’s attorney a proposed

amendment (“Amendment”) to the Second Contract which included a base salary reduction of over 35% (“Paycut”), allegedly as a consequence of Plaintiff’s removal from Chairmanship. 95. On or about September 18, 2006, Plaintiff sent an email addressed to Barnes

protesting the Paycut. The email stated: Mr. Bryan stated in his letter to me that his decision to strip me of my chairmanship was based on the sick leaves I was taking. KMC's proposed reduction of my base salary seems to have the purpose of punishing me further. I wish to return to work at KMC, but I believe the proposed drastic reduction in my

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base salary as benchmarked against Dr. Dutt's is utterly unfair on numerous levels. I am left feeling that this is simply another retaliatory effort on the part of KMC. 96. On or about September 20, 2006, Culberson sent a letter addressed to Plaintiff

explaining the Paycut. 97. On or about September 22, 2006, Plaintiff executed the Amendment

memorializing the Paycut and submitted it to Barnes. 98. On or about October 3, 2006, the Board of Supervisors for Defendant County

voted to approve the Amendment. 99. On October 4, 2006, Plaintiff’s 90-day personal necessity leave ended and

Plaintiff returned to work at KMC as a staff pathologist. Plaintiff’s former subordinate, Philip Dutt, MD (“Dutt”), was chosen to replace Plaintiff as Acting Chair of Pathology. 100. Between on or about October 4, 2006 until on or about December 7, 2006, Dutt

yelled at, harassed, insulted and ridiculed Plaintiff, both verbally and in a series of emails. 101. On or about December 4, 2006, Plaintiff sent a letter addressed to Culberson and

carbon-copied to key members of KMC’s medical staff and administration, protesting Dutt’s behavior and raising additional concerns about patient care quality, safety and legal noncompliance. 102. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff

informing him that he was being placed on involuntary paid administrative leave “pending resolution of a personnel matter”. 103. On March 28, 2007, KMC authorized Plaintiff to access his office in order to

retrieve his personal computer files. Upon his arrival, Dr. Dutt informed him that his office was now locked and that Dr. Dutt now had custody of the key, that Plaintiff’s file cabinet and

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computer had been physically removed and retasked for other purposes at KMC, and that Plaintiff would not be able to access his personal computer files after all. 104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had

yet to be provided any explanation for his involuntary leave or any indication as to whether or when it would end so that he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone during working hours was threatening to erode his pathology skills, jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was denying him the opportunity to earn income from professional fee billing, and (iv) part-time work was deemed therapeutic for him by his physician and that the confinement to his house during working hours was having the opposite effect of severely exacerbating his depression. 105. To date, Plaintiff remains on involuntary leave, with no explanation therefore or

any indication as to whether or when it will end. F. DISABILITY DISCRIMINATION 106. In 2003, Plaintiff had notified KMC that he suffered from depression due to work-

related hostility and KMC’s failure to resolve Plaintiff’s compliance and patient care concerns. KMC subsequently permitted Plaintiff to undertake a medically necessary reduced work schedule leave as a reasonable accommodation. 107. By December 16, 2005, Plaintiff was suffering extreme stress from the hostile

work environment created by the harassment, defamation, discrimination, and retaliatory adverse actions of Defendants and each of them. Plaintiff’s depression subsequently became disabling in that it limited his ability to enjoy life, without anxiety or insomnia.. 108. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his

psychiatrist’s certification that Plaintiff needed a reduced work schedule leave because of his

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serious medical condition. 109. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:

“This harassment has led me develop depression, anxiety and insomnia. Most recent issue involving the October Oncology Conference is still unresolved. I request administrative leave with pay until this issue is resolved.” 110. On or about January 9, 2006, Plaintiff met with Bryan regarding his request for a

medically necessary reduced work schedule, and clarified that it was necessary because of the reoccurrence of his disabling depression. Bryan orally approved Plaintiff’s reduced work schedule. 111. Defendants, and each of them, knew or should have known that Plaintiff was an

individual with a disability that limited his major life activities of taking pleasure in life, without experiencing anxiety, insomnia or difficulty breathing and moving, and/or was perceived by Defendants as having such limitations. 112. On or about March 2, 2006, Plaintiff sent an email to Bryan, repeating his

previous verbal request weeks earlier that KMC hire a locum tenens pathologist to assist with the Pathology Department’s workload during Plaintiff’s reduced work leave. 113. On or about March 24, 2006, Plaintiff sent an email to Bryan, expressing his

disappointment that KMC had not yet hired a locum tenens pathologist to assist with the Pathology Department’s workload during Plaintiff’s reduced work leave, as Plaintiff had previously requested. 114. On or about April 10, 2006, Plaintiff sent an email to Bryan, stating that he had

not been informed that KMC had finally hired a locum tenens pathologist. The email stated: I don't know of Dr. Bhargava and didn't know that a contract with Dr. Bhargava was signed. Had I known, I would have placed him on the call schedule for the

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coming months. I felt obligated to take some of the call, even though I am off, because there would not be enough resources for the call schedule. 115. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff in which

3 he acknowledged that “Yes, the Department of Pathology continues to function well as it has for 4 many years, and yes, you have made many positive changes in the department [emphasis 5 added]”. 6 116. 7 form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff 8 needed an extension of his reduced work schedule leave for six months to one year because of 9 his serious medical condition. 10 117. 11 O’Conner, and ordered Plaintiff to convert his reduced work schedule to involuntary full-time 12 medical leave despite the fact that Plaintiff was ready, willing, and able to continue working his 13 reduced work schedule, thereby removing an accommodation of Plaintiff’s disability and 14 refusing to engage in good faith in an interactive process with Plaintiff. 15 118. 16 difficult recovery, which limited his ability to breathe and exert himself for approximately one 17 month. 18 119. 19 from his ankle in an accident which limited his ability to stand, sit without elevating his ankle, or 20 walk for approximately three months. 21 120. 22 extension of Plaintiff’s leave, which was due to expire on June 16, 2006, because of Plaintiff’s 23 nasal surgery and foot injury. 24 On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, requesting an On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a Nevertheless, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence

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121.

On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing

Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology purportedly because “[t]his institution needs to have full-time leadership in the department and because of your leave you have not been able to provide it.” 122. Later, on or about June 14, 2006, Bryan sent a letter address to Plaintiff

containing statements similar to those contained in Bryan’s email of earlier that day, and reiterating that “the Department of Pathology needs a full-time chairman.” 123. On April 4, 2007, after KMC had placed Plaintiff on involuntary paid leave,

Plaintiff placed Defendant County on notice that (i) he still had yet to be provided any explanation for his involuntary leave or any indication as to whether or when it would end so that he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone during working hours was threatening to erode his pathology skills, jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was denying him the opportunity to earn income from professional fee billing, and (iv) part-time work was deemed therapeutic for him by his physician and that the confinement to his house during working hours was having the opposite effect of severely exacerbating his depression. 124. To date, Plaintiff remains on involuntary leave, with no explanation therefore or

any indication as to whether or when it will end.At all times material here, excluding a portion of the time when he was out on voluntary full-time medical leave, Plaintiff has been able to perform the essential functions of the employment positions he held with Defendants and each of them, with reasonable accommodation. 125. Plaintiff requested reasonable accommodation of his disabilities from Defendants,

and each of them, in the form of a reduced work schedule and/or recuperative leave.

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126.

Allowing Plaintiff to take the medical and/or recuperative leave that he requested

would have been a reasonable accommodation of Plaintiff’s disabilities. 127. Holding open Plaintiff’s position as Chair of Pathology while he was on leave

would have been a reasonable accommodation of Plaintiff’s disabilities. 128. Holding open Plaintiff’s position as Chair of Pathology while he was on leave

would not have been unduly burdensome for the County or KMC. G. DUE PROCESS 129. Pursuant to 9.6-4 of the Bylaws, Bryan was not authorized to remove Plaintiff

from his position as Chair of Pathology, but could only recommend such removal to the JCC. 130. It is customary for the County and/or KMC to remove a Department Chair

pursuant to 9.6-4 of the Bylaws only for cause. 131. It is customary for the County and/or KMC to provide a hearing and opportunity

to be heard before removing a Department Chair of KMC from office, and before a demotion that results in a substantial and/or excessive reduction in compensation 132. When necessary, it is customary for the County and/or KMC to appoint a

temporary replacement as “Acting” senior manager in the place and stead of a senior manager, such as Plaintiff, when the senior manager’s position is left vacant because of a leave of absence or termination of employment. 133. Defendants, and each of them except Roy, demoted and reduced the

compensation of Plaintiff without cause or justification. 134. Defendants, and each of them except Roy, demoted and the reduced the

compensation of Plaintiff without providing him with the customary hearing or notice thereof.

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H. ADVERSE ACTIONS 135. Defendants, and each of them, have taken adverse employment actions against

Plaintiff, willfully and intentionally creating a hostile work environment, subjecting him to acts of defamation and ratification thereof, demotion and excessive reduction in pay, disparate treatment, unwarranted criticism and reprimands, threats, requests for his resignation, interference with and denial of his right to medical leave, refusing to engage in good faith in an interactive process and denying him reasonable accommodation and procedural due process because of his protected characteristics and/or activities alleged herein. I. DAMAGES AND CAUSATION 136. As a result of Defendants' acts and omissions alleged herein, Plaintiff has suffered

pecuniary losses, such as loss of wages and benefits, and has been required to incur medical and legal expenses and to hire attorneys in order (i) to enforce Plaintiff's rights, (ii) to enforce provisions of the law protecting whistleblowers, employees who exercise their right to medical leave under CFRA and FMLA, and employees with disabilities that need reasonable accommodation, and (iii) to take such action both in his own interest and in order to enforce important rights affecting the public interest. 137. After Plaintiff’s returned from leave on October 4, 2006, Defendants and each of

them except Roy and Harris placed Plaintiff in the position of staff pathologist and excessively reduced his salary by $100,842 or over 35%. 138. On information and belief, Plaintiff’s salary for his work as a staff pathologist for

KMC is less than the benchmark National Medical Group Association (“NMGA”) median salary for a clinical and anatomic pathologist with Plaintiff’s qualifications and experience, in breach of the Second Contract.

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139.

During the time that Defendants placed Plaintiff on involuntary full-time leave,

including the period from December 7, 2006 to date, Defendants effectively denied Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the Second Contract. 140. As a further result of Defendants’ acts and omissions alleged herein, Plaintiff has

suffered and continues to suffer non-economic damages, such as emotional distress, anxiety, humiliation, and loss of reputation. 141. The acts and omissions of Defendants, and each of them, alleged herein were and

are a substantial factor in causing Plaintiff's harm. 142. The acts and omissions of Defendants Bryan, Harris, and Roy alleged herein are

despicable, oppressive and were done in conscious disregard of the rights of individuals and whistleblowers, such as Plaintiff, and of the safety of public patients, and have evidenced actual or implied malicious intent toward Plaintiff, thereby entitling him to an award of punitive damages against Defendants Bryan, Harris and Roy pursuant to §3294 Civil Code in an amount sufficient to make an example of Defendants Bryan, Harris, and Roy and discourage others from conscious disregard for the rights of individuals and whistleblowers and for the safe care and condition of public patients. Plaintiff does not know the financial worth of Defendants Bryan, Harris, or Roy or the amount of punitive damages sufficient to accomplish the public purposes of §3294 Civil Code and will seek leave to amend this complaint when such facts are known or proceed according to proof at trial. 143. Plaintiff has mitigated his damages by seeking and maintaining medical and

psychiatric treatment and by taking progressive steps to try to protect his reputation and restore confidence in the Pathology Department at KMC.

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EXHAUSTION OF REMEDIES On July 3, 2006, Plaintiff filed a Tort Claims Act complaint with the County of

Kern. The complaint disclosed Plaintiff’s claims of defamation against Roy, Harris and Defendants DOES 1 through 10, and of retaliation against Defendant County for engaging in whistleblowing activity concerning unsafe patient care and conditions at KMC and his refusal to participate in activities that he reasonably believed to be unlawful against Defendant County (a true and correct copy of which is attached hereto as Exhibit 2 and incorporated by reference herein). The Office of the County Counsel for the County of Kern sent a letter to Plaintiff’s counsel, dated September 15, 2006 (a true and correct copy of which is attached hereto as Exhibit 3 and incorporated by reference herein), giving notice that Plaintiff’s complaint was deemed rejected by operation of law and informing Plaintiff that he had six months from the date of such notice to file a court action on his claims. Plaintiff continues to be employed by KMC as a staff pathologist and continues to be subject to a hostile work environment and retaliation on an ongoing basis. 145. On April 23, 2007, Plaintiff filed a supplemented Tort Claims Act complaint with

the County of Kern, supplemented to reflect events occurring after filing of the initial Tort Claims Act complaint on July 3, 2006. A true and correct copy is attached hereto as Exhibit XXX and incorporated by reference herein. 146. Plaintiff intends to file amended Tort Claims Act complaints with the County of

Kern on a periodic and continuing basis. 147. On August 3, 2006, Plaintiff filed a complaint with the California Department of

Fair Employment and Housing (“DFEH”), followed by an amended complaint filed on November 14, 2006. The complaint stated claims against Defendant County for discrimination

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on the basis of disability, as well as failure to engage in good faith in an interactive process, failure to provide reasonable accommodation, violations of Plaintiff’s medical leave rights. Plaintiff received a right-to-sue notice from the DFEH, true and correct copies of which are attached hereto as Exhibit 4 and incorporated by reference herein. 148. On April 23, 2007, Plaintiff filed a supplemented complaint with the DFEH,

supplemented to reflect events occurring after filing of the initial complaint with the DFEH on August 3, 2006. A true and correct copy is attached hereto as Exhibit XXX and incorporated by reference herein. 149. Plaintiff intends to file amended complaints with the DFEH on a periodic and

continuing basis. 150. Plaintiff filed a notice of intent to sue under Section 1102.5 of the Labor Code,

without seeking any penalties, with the Labor and Workforce Development Agency (“LWDA”) on January 5, 2007, a true and correct copy of which is attached hereto as Exhibit 5 and incorporated by reference herein. On February 15, 2007, the LWDA mailed notice to Plaintiff that it was in receipt of Plaintiff’s notice of intent to sue. To date, Plaintiff has not received any citation or notice that LWDA will investigate or pursue this claim. 151. On January 24, 2007, Plaintiff gave notice to the U.S. Department of Labor that

he had filed a complaint and initiated this action in US district court, alleging interference with Plaintiff’s right to family and medical leave under FMLA. No right-to-sue notice has issued as Plaintiff has a free-standing private right of action under FMLA. STATEMENT OF CLAIMS FIRST CLAIM (Retaliation in Violation of Health & Safety Code § 1278.5) (Against Defendants County and DOES 1 through 10)

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1 152. 2 & Safety Code § 1278.5 against Defendant County. 3 153. 4 through 141, inclusive, above. 5 154. 6 from discrimination and retaliation for health care workers who reported suspected unsafe care 7 and conditions of patients in health care facilities. 8 155. 9 regarding suspected unsafe care and conditions of patients at KMC. 10 156. 11 Code by engaging in a continuous and ongoing pattern and practice of discrimination and 12 retaliation against Plaintiff because he engaged in whistleblowing activity protected by Section 13 14 15 described herein was Plaintiff’s reports to his employer, Barmann, and Authorities regarding 16 what he reasonably believed to be unsafe patient care and conditions. 17 WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. 18 19 20 21 22 23 24 158. SECOND CLAIM: (Retaliation In Violation Of Lab. Code § 1102.5) (Against Defendants County and DOES 1 through 10) Plaintiff alleges this second and separate claim for Retaliation in violation of 1278.5 of the Health & Safety Code. 157. A motivating factor for the acts and omissions of Defendants and each of them Defendants and each of them have violated Section 1278.5 of the Health & Safety Defendants and each of them knew of Plaintiff’s whistleblowing activity At all material times herein, Health & Safety Code § 1278.5 provided protection Plaintiff incorporates by reference herein the allegations set forth in Paragraphs 1 Plaintiff alleges this first and separate claim for Retaliation in violation of Health

Labor Code § 1102.5 against Defendant County and DOES 1 through 10, inclusive 159. Plaintiff incorporates by reference herein the allegations contained in Paragraphs

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1 through 141 above, inclusive. 160. pertinent part: 1102.5. (a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. 161. Plaintiff reported his reasonable suspicions about illegal, non-compliant, and At all material times herein, Labor Code § 1102.5 was in effect, and provides in

unsafe care and conditions of patients at KMC to his employer, Barmann, and Authorities. 162. Defendants, and each of them, knew of Plaintiff’s whistleblowing reports

protected by Section 1102.5 of the Labor Code. 163. Defendants, and each of them, engaged in a continuous and ongoing pattern and

practice of discrimination and retaliation against Plaintiff because he engaged in activity protected by Section 1102.5 of the Labor Code. 164. Plaintiff's activity protected by Section 1102.5 of the Labor Code was a

contributing factor in the continuous pattern and practice of discrimination and retaliation of Defendants, and each of them, against Plaintiff described in this complaint. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

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1 2 3 165. 4 5 166. 6 1 through 141 above, inclusive. 7 167. 8 9

THIRD CLAIM [Retaliation (CFRA - Gov’t Code §§ 12945.1, et seq.)] (Against Defendants County and DOES 1 through 10, inclusive.) Plaintiff alleges this third and separate claim for violations of Government Code

§§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive. Plaintiff incorporates by reference herein the allegations contained in Paragraphs

At all material times herein, Section 12945.2(a)(1) of the Government Code and 2

C.C.R. § 7297.7(a) prohibit any person from discriminating, discharging, or retaliating against an employee for exercising his right to medical leave. 10 168. 11 employer shall guarantee to reinstate an employee to the same or comparable position, and must 12 do so unless refusal to reinstate is “justified” by the defenses stated in 2 C.C.R. § 72972(c). 13 169. 14 C.C.R. § 7297.7(c) for refusing to reinstate Plaintiff to the same or comparable position on his 15 return from medical leave. 16 170. 17 to medical leave, including denying him a medically necessary reduced work schedule; 18 unjustified notice of Defendants’ intent not to reinstate Plaintiff to his former or comparable 19 position on his return from leave; Defendant’s unjustified refusal to reinstate Plaintiff to his 20 former or comparable position on his return from leave; demoting him; and excessively reducing 21 his salary and chance to earn professional fees, bonuses and promotion. 22 171. 23 Defendants’ adverse treatment Plaintiff. 24 Plaintiff's exercise of his right to medical leave was a motivating reason for Defendants, and each of them, retaliated against Plaintiff for exercising his right At all material times herein, the County lacked “justification” pursuant to 2 Pursuant to 2 C.C.R. § 7297.2(a), CFRA requires that upon granting of leave, an

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WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. FOURTH CLAIM [Interference With FMLA Rights in violation of 29 U.S.C. §§ 2601, et seq.] (Against Defendants County, Bryan, and DOES 1 through 10, inclusive.) 172. Plaintiff alleges this fourth and separate claim for violations of 29 U.S.C. §§

5 2601, et seq. against Defendants County, Bryan, and DOES 1 through 10, inclusive, and each of 6 them. 7 173. 8 1 through 141 above, inclusive. 9 174. 10 2611(4)(A)(ii)(I) imposed liability on covered employers and “any person who acts directly or 11 indirectly in the interest of the employer to any of the employees of such employer” for 12 interfering, restraining, or denying the exercise of, or attempt to exercise, any right provided 13 under FMLA pursuant to 29 U.S.C. § 2615(a). 14 175. 15 attempt to exercise, Plaintiff’s rights under FMLA. 16 176. 17 exercise Plaintiff’s rights under FMLA included interference with and denial of Plaintiff’s right 18 to a medically necessary reduced work schedule; requiring Plaintiff to take full-time medical 19 leave when he was ready, willing, and able to work part-time, exhausting his medical leave more 20 rapidly than permitted; unjustified notice of Defendants’ intent not to reinstate Plaintiff to his 21 former or comparable position on his return from leave; Defendant’s unjustified refusal to 22 reinstate Plaintiff to his former or comparable position on his return from leave; Defendants’ 23 excessive reduction in Plaintiff’s salary. 24 Defendants’ interference, restraint, or denial of the exercise of, or attempt to Defendants, and each of them, interfered, restrained, or denied the exercise of, or At all material times herein, FMLA was in effect and pursuant to 29 U.S.C. § Plaintiff incorporates by reference herein the allegations contained in Paragraphs

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177.

Plaintiff's exercise of his rights under FMLA was a motivating reason for

Defendants’ adverse treatment of Plaintiff. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. FIFTH CLAIM [Violation of CFRA Rights in violation of Gov’t Code §§ 12945.1, et seq.] (Against Defendants County and DOES 1 through 10, inclusive.) 178. Plaintiff alleges this fifth and separate claim for violations of Government Code

7 §§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive, and each of 8 them. 9 179. 10 1 through 141 above, inclusive. 11 180. 12 employment practice for an employer to violate an employee’s rights under the CFRA pursuant 13 to section 12945.2(a) of the Government Code. 14 181. 15 employers who discriminated against an employee for exercising his right to leave or otherwise 16 interfered with an eligible employee’s CFRA rights pursuant to 2 C.C.R. § 7297.1 and Section 17 1615(a)(2) of the United States Code. 18 182. 19 implementing regulations for FMLA that are not inconsistent with CFRA. 29 C.F.R. 825 § 20 825.700(a) provides that “[i]f an employee takes paid or unpaid leave and the employer does not 21 designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA 22 entitlement.” 23 183. 24 Pursuant to 2 C.C.R. § 7297.4(6), an employer must designate leave as CFRA Pursuant to 2 C.C.R.§ 7297.10, CFRA expressly incorporates federal At all material times herein, the CFRA imposed strict liability on covered At all material times herein, the CFRA was in effect and made it an unlawful Plaintiff incorporates by reference herein the allegations contained in Paragraphs

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leave within 10 days of notice of the employee’s need for leave; but the greater protections of 29 C.F.R. § 825.208 which require an employer to do so “within two days absent extenuating circumstances” should apply. 184. In Bachelder v. America West Airlines, 259 F.3d 1112 (9th Cir. 2001), the court

construed 29 C.F.R. Sec. 825.200(e) and held that where an employer does not designate the method used in calculating employees’ entitlement to leave, “the option that provides the most beneficial outcome for the employee will be used.” 185. Pursuant to Government Code § 12945.2(a) and 2 C.C.R. § 7297.2(A), medical

leave requested is not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a written guarantee of employment in the same or a comparable position upon the termination of the leave. 186. Pursuant to 2 C.C.R. § 7297.2(a), CFRA requires that upon granting of leave, an

employer shall guarantee to reinstate an employee to the same or comparable position, and must do so unless refusal to reinstate is “justified” by the defenses stated in 2 C.C.R. § 72972(c). 187. At all material times herein, the County lacked “justification” pursuant to 2

C.C.R.C § 7297.7(c) for refusing to reinstate Plaintiff to the same or comparable position on his return from medical leave. 188. Defendants, and each of them, discriminated against Plaintiff and otherwise

interfered with his CFRA rights because he exercised, or tried to exercise, his CFRA rights, including untimely designation of the initial leave as CFRA leave without providing notice of the method of calculation, untimely notice of how KMC calculated Plaintiff’s entitlement to the extension of his CFRA leave; interference with and denial of Plaintiff’s right to a medically necessary reduced work schedule; requiring Plaintiff to take full-time medical leave when he was

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ready, willing, and able to work part-time which exhausted his medical leave more rapidly than permitted; unjustified notice of Defendants’ intent not to reinstate Plaintiff to his former or comparable position on his return from leave; Defendant’s unjustified refusal to reinstate Plaintiff to his former or comparable position on his return from leave; and Defendants’ excessive reduction in Plaintiff’s salary. 189. These violations may also mean that Defendant further violated Plaintiff’s CFRA

rights by informing him that his medical leave was exhausted as of June 16, 2005, while Plaintiff may have been entitled to medical leave even as of October 4, 2006 when he returned to work. 190. Plaintiff's exercise of, or attempt to exercise, his CFRA rights was a motivating

reason for Defendants’ adverse treatment of him. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. SIXTH CLAIM [Disability Discrimination in Violation of Gov’t Code § 12940(a)] (Against Defendants County and DOES 1 through 10, inclusive) 191. Plaintiff alleges this sixth and separate claim for Disability Discrimination in violation of Government Code § 12940(a) against Defendant County and DOES 1 through 10, inclusive. 192. Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 141 above, inclusive. 193. 194. The FEHA prohibits discrimination on the basis of disability in employment. Defendants, and each of them, through their course of conduct denied Plaintiff a

benefit of employment, in whole or in part, because he is an individual with known disabilities in violation of Government Code 12940(a) and 2 C.C.R. §7293.7. 195. In addition to the adverse actions alleged above, Defendants, and each of them,

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discriminated against Plaintiff, denied him reasonable accommodation, and refused to engage in good faith in an interactive process because of his known disabilities. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. SEVENTH CLAIM (Failure to Provide Reasonable Accommodation in Violation of Gov’t Code § 12940(m)) (Against Defendants County and DOES 1 through 10, inclusive) 196. Plaintiff alleges this seventh and separate claim for Failure to Provide Reasonable

7 Accommodation in violation of Government Code § 12940(m) against Defendant County and 8 DOES 1 through 10, inclusive. 9 197. 10 1 through 141 above, inclusive. 11 198. 12 Plaintiff's known disabilities in violation of Section 12904(m) of the Government Code and 2 13 14 15 16 17 18 19 20 21 22 23 24 EIGHTH CLAIM (Failure to Engage In Interactive Consultation In Violation of Gov’t Code § 12940(n)) (Against Defendants County and DOES 1 through 10, inclusive) 199. Plaintiff alleges this Eighth and separate claim for Failure to Engage in Good C.C.R. § 7293.9. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. Defendants, and each of them, failed to provide reasonable accommodation of Plaintiff incorporates by reference herein the allegations contained in Paragraphs

Faith in an Interactive Consultation in violation of Government Code § 12940(n) against Defendant County and DOES 1 through 10, inclusive. 200. Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 141 above, inclusive. 201. Defendants, and each of them, failed to engage in good faith in a prompt,

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ongoing, interactive consultation regarding reasonable accommodation of Plaintiff's disabilities in violation of Section 12940(n) of the Government Code. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. NINTH CLAIM (Violation of Due Process Right under 42 U.S.C. § 1983) (Against Defendants Bryan both personally and as former CEO of KMC; Kercher both personally and as President of Medical Staff of KMC; Ragland both personally and as President-Elect of Medical Staff of KMC; Abraham both personally and as Immediate Past President of Medical Staff of KMC; and Smith both personally and as Chief Nurse Executive of KMC, in their capacity as members of the JCC of KMC) 202. Plaintiff alleges this Ninth and separate claim for violation of Plaintiff’s

Fourteenth Amendment of the United States Constitution Right of Procedural Due Process under 42 U.S.C. § 1983 against Defendants Bryan both personally and as former CEO of KMC; Kercher both personally and as President of Medical Staff of KMC; Ragland both personally and as President-Elect of Medical Staff of KMC; Abraham both personally and as Immediate Past President of Medical Staff of KMC; and Smith both personally and as Chief Nurse Executive of KMC, in their capacity as members of the JCC of KMC. 203. Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 141 above, inclusive. 204. The Fourteenth Amendment of the United States Constitution protects a public

employee’s right of procedural due process regarding governmental actions that deprive him of life, liberty, or property interest of constitutional magnitude. 205. At all material times herein, Plaintiff had a property interest in his position as

Chair of Pathology and in the excessive reduction of his base salary of constitutional magnitude as provided for in the Second Contract. 206. Defendants, and each of them, intentionally, or with deliberate indifference to, or

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with a conscious disregard of, Plaintiff’s Constitutional rights, denied Plaintiff his right to procedural due process guaranteed by the Fourteenth Amendment of the United States Constitution when they decided to demote Plaintiff and substantially and excessively reduced his salary by a sum of constitutional magnitude in breach of the Second Contract. 207. Defendant Bryan, was acting or purporting to act under color of law in the

performance of his official duties as Chief Executive Officer of KMC when he unilaterally, arbitrarily, and capriciously demoted Plaintiff and excessively reduced his salary by a sum of constitutional magnitude in violation of the Bylaws and the Second Contract, without providing Plaintiff with the customary notice of hearing and opportunity to be heard to which he was entitled. 208. When Plaintiff complained to Bryan that he had been deprived of the customary

hearing regarding his demotion and excessive reduction in pay, the JCC met and ratified Bryan’s decision to demote Plaintiff and substantially and excessively reduced his salary in breach of the Second Contract without providing Plaintiff with prior notice of the hearing or an opportunity to be heard. 209. Defendants and each of them, were acting or purporting to act under color of law

in the performance of their official duties as members of the JCC when they arbitrarily and capriciously decided to demote Plaintiff and substantially and excessively reduced his salary in breach of the Second Contract without providing Plaintiff with the customary notice of hearing and opportunity to be heard to which he was entitled. 210. Thereafter, the Kern County Board of Supervisors met and voted to confirm

Plaintiff’s demotion and the excessive reduction in Plaintiff’s salary in breach of the Second Contract without providing Plaintiff with notice of the hearing or an opportunity to be heard.

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211.

The conduct of Defendants, and each of them, violated Plaintiff’s 14th

Amendment right of procedural due process. 212. harmed. 213. Defendants’ denial of Plaintiff’s procedural due process right was a substantial As a legal result of the conduct of Defendants, and each of them, Plaintiff was

factor in causing Plaintiff’s harm. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. TENTH CLAIM (Defamation in Violation of Civ. Code §§ 45-47) (Against Defendants County, Roy, Harris, DOES 1 through 10, and Each of Them) 214. Plaintiff alleges this Tenth and separate claim for Defamation in violation of Civil

Code §§ 45 to 47 against Defendants Roy, Harris, the County, and DOES 1 through 10, inclusive, and each of them. 215. Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 141 above, inclusive. 216. On information and belief, Plaintiff alleges that Roy made several false statements

of fact, both orally and in writing, which defamed Plaintiff’s professional credentials, competence and/or integrity to other members of KMC’s medical staff and administration, and that Harris and DOES 1 through 10 republished such defamatory statements to other members of KMC’s medical staff and administration. 217. On information and belief, Plaintiff alleges Defendants, and each of them,

included the Roy Letter in papers stored in Plaintiff's personnel file, where they are continuously republished to anyone who consults his personnel file. 218. The above-alleged defamatory statements have continuously been false.

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219.

The hearers of the defamatory statements reasonably understood that they were

about Plaintiff and understood them to mean that Plaintiff’s professional credentials, competence and/or integrity were deficient. 220. As a result of Defendants' wrongful conduct, Plaintiff has suffered harm to his

profession, reputation, and experienced feelings of shame, mortification, and hurt 221. Defendants' wrongful conduct was a substantial factor in causing harm to

Plaintiff's profession and reputation. 222. statements. 223. At all material times, Defendants, and each of them, either knew that each Defendants failed to use reasonable care to determine the truth or falsity of the

statement was false or had serious doubts about the truth of each statement, and that they acted with malice, oppression, or fraud, entitling Plaintiff to an award of punitive damages against the individual Defendants. 224. Defendants Harris, Kercher, Bryan and Abraham have approved, accepted, and

refused to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through 10, thereby ratifying such acts. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. ELEVENTH CLAIM (Violation of FLSA) (Against Defendants County and DOES 1 through 10 inclusive) 225. Plaintiff alleges this Eleventh and separate claim for reimbursement of deductions

from his salary made in violation of FLSA against Defendant County and DOES 1 through 10, inclusive. 226. Plaintiff incorporates by reference herein the allegations contained in Paragraphs

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1 through 141 above, inclusive. 227. Pursuant to 20 C.F.R. § 541.118(1), an employee will not be considered “on a

salary basis” if deductions from his predetermined compensation are made for absences occasioned by the employer. 228. Pursuant to 20 C.F.R. § 541.118(6), where a deduction not permitted by these

interpretations is inadvertent, or is made for reasons other than lack of work, the exemption will not be considered to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future. 229. From April 28 to October 3, 2006, Defendants, and each of them, unlawfully

required Plaintiff to take involuntary full-time unpaid leave rather than reduced scheduled leave even though he was occasionally ready, willing, and able to work part-time during that period of time. 230. During the period from April 28 to October 3, 2006, clinical pathology work was

always available to Plaintiff at KMC. 231. Plaintiff is entitled to reimbursement of salary for those periods of time during the

period from April 28, 2006 to October 3, 2006 when he was ready, willing, and able to work, and was prevented from doing so by the County; and also entitled to a promise that the County will comply in the future. WHEREFORE Plaintiff prays for relief as stated herein and in pertinent part hereinafter.

PRAYER FOR RELIEF Plaintiff prays for judgment against Defendants, and each of them, jointly and severally, as follows:

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1. Reinstatement to his former position as Chair of Pathology and reimbursement for lost wages and work benefits caused by the acts of his employer pursuant to Section 1278.5(g) of the Health & Safety Code and Section 12965 of the Government Code. 2. Recovery of all reasonable attorneys' fees, litigation expenses and costs incurred, pursuant to Section 2699 of the Labor Code for violation of Section 1102.5 of the Labor Code, 1278.5(g) of the Health & Safety Code, Section 1021.5 of the Code of Civil Procedure, Section 12965 of the Government Code, 29 U.S.C. § 2617(a)(3) [FMLA], and 42 U.S.C. § 1988. 3. That Defendant County be enjoined from retaliating against whistleblowers in violation of Section 1278.5 of the Health & Safety Code and Section 1102.5 of the Labor Code. 4. That Defendant County be required to expunge from Plaintiff's personnel records any and all references to Plaintiff’s having "poor relationships" with staff, displaying poor teamwork or other words of similar effect. 5. That Defendant County be required to comply with all of the provisions of the FEHA relating to providing reasonable accommodation and engaging in good faith in an interactive consultation regarding reasonable accommodation [Government Code §§ 12940 (m) & (n)]. 6. That Defendant County be required to provide training to the managerial staff at KMC regarding compliance with Section 1278.5 of the Health & Safety Code, Section 1102.5 of the Labor Code, Sections 12940(m) and (n) of the Government Code, and CFRA (Government Code §§ 12945.1, et seq.). 7. General and compensatory damages according to proof. 8. Liquidated damages under FMLA/CFRA and FLSA according to proof.

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9. Punitive damages against Defendants Roy, Harris, and Bryan pursuant to §3294 Civil Code; 10. Pre-judgment interest pursuant to §3291 of the Civil Code. 11. For such other and further relief as the court may deem proper.

Dated: January 8, 2006 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

LAW OFFICES OF EUGENE LEE

By: ___________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O. DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands trial by jury for all issues and claims triable as of right by a jury. Dated: January 8, 2006 LAW OFFICES OF EUGENE LEE

By: ___________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.

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EXHIBIT 4: Plaintiff’s Second Supplemented Tort Claims Act Claim

USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF SUPPLEMENTAL BRIEF PURSUANT TO COURT’S ORDER OF MARCH 2, 2009 6

10/16/2007 02:46 FAX

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SUPPLEMENTED
CLAIM AGAINST THE COUNTY OF KERN
(Government Code §§ 910,9102 & 810.4)

This claim must be flied with the Clerk of the Board of Supervisors, 1115 Truxtun th Ave" 5 Floor, Bakersfield, California 93301. Iritis a claim for ~ injury to person, inrury to personal property or inrury to growing crops, it must be filed within six months after the accident or event gIving rise to the claim. If it is a claim for any other cause of action, it must be filed within one year after the event(s) giving rise to the claim. You must complete both sides and sign the claim form for the claim to be valid. Complete information must be provided. If the space provided is inadequate, please use additional paper and identify information by paragraph number.
1.

State the name and mailing address of claimant:
91~a7-103~

DavId ¥. Jadwin, D.O., F.C.n.P., 1635 Heather Ridge Dr. Glendale, CA

2.

State the mailing address to which claimant desires notices from the County to
be sent:

Law Office of Eugene Lee, 555 W 5th St, Ste 3100, Los Angeles, CA 90013

3.

State the date, place and other circumstances of the accident or event(s) giving rise to the claim.

See attachment.

4.

Provide a general description of the injury, damage or loss incurred so far as it

may be known: see attachment.

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5.

Provide the name or names of the public employee or employees causing the injljry, damage or loss, if known:

Peter Bryan, Irwin Barris, Eugene Kcrcher, Scott Ragland, Jennifer Abraham, william ROy, philip Dutt 1 Toni smith , David Culberson

6.

Regarding the amount claimed (including estimated amount of any prospective injury, damage or loss known as of the time the claim is filed): If less than ten thousand dollars ($10,000), state the amount: $~_~~~_, If more than ten thousand dollars, would the claim be a limited civil case (less than $25,000)? (Circle one) Yes No

7.

Please state any additional information which may be helpful in considering this claim:

Complainant rn~t with Bernard Ba'l':'lTlann, Kern County CounBe.l., with reapec:::t to the foregoing on F~bruaLY 9, 2006.

Claimant must date and sign below.

B.

Signed this .....,-,;;t""h~_ _ day of October, 20.£2...... l 6

,
CLAIMANT'S SIGNATURE

....

WARNING! IT IS A CRIMINAL OFFENSE TO FILE A FALSE CLAIM (Penal Code §72)
(3103)

Doc 118:9650
S;~laim

Itwm,4Qe

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Attachment to Dr. David F. Jadwin’s Complaints of Discrimination and Retaliation Against County of Kern, Kern Medical Center, Mr. Peter Bryan, and Other Persons Until July 10, 2006, I was Chair of Pathology at Kern Medical Center (“KMC”), a hospital that is owned and operated by the County of Kern in California. My employment began in December 2000, pursuant to an employment contract which I executed on October 24, 2000. On November 12, 2002, I executed a subsequent employment contract with KMC with a five-year term ending on October 4, 2007. I was recruited to rebuild the pathology service. I was able to dramatically improve the performance of the department and patient care throughout the hospital. However, I experienced almost immediate resistance to the changes I made. In 2002, I began to suffer professional mistreatment and harassment by a few members of the KMC medical staff in retaliation for my efforts to address critical deficiencies in the quality of patient care and inefficiencies at the hospital. The tortious attacks, hostile work environment and the conduct of the administration eventually caused me to succumb to debilitating depression, anxiety and insomnia, etc., for which I sought, and continue to receive, expert medical help. Finally, in January 2006, I discussed my disability and my various grievances with Mr. Peter Bryan, CEO of KMC, and requested medical leave. Mr. Bryan agreed that I should take at least six months of time off while continuing on as Chair. I thus continued to work on a part-time basis, capably managing the Pathology Department and fulfilling all essential chair duties. I later submitted a formal application for reduced leave for medical reasons accompanied by a doctor’s note which certified that I would need to work on a part-time basis until on or about September 2006. On April 28, 2006, I had a meeting with Mr. Bryan, during which he announced his unilateral decision to revoke my reduced work schedule medical leave. Discussion was neither invited nor permitted. I was therefore forced to comply with the order. Mr. Bryan followed the meeting up with a toned-down memo that stated, “I also mentioned that after Monday it would be preferable for you not to have an intermittent work schedule and it would be easier on the department to just have you on leave until your status is resolved.” From that point on, I was no longer permitted to take reduced work schedule medical leave or work part-time as an accommodation of my disability. In addition, Mr. Bryan initially stated that I would have until June 16, 2006 to decide whether or not I would resign my position. In his April 17, 2006 memo to me, Mr. Bryan stated “When you return to full time from your medical leave I need for you to make a decision that you will either accept the conditions and work on improving your relationships or you will step down as

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chairman.” In his April 28, 2006 memo to me, Mr. Bryan reiterated, “Finally, I said that by June 16, 2006 you needed to give me your decision about your employment status. Your options were to either return full time or resign your position.” At the April 28, 2006 meeting, Mr. Bryan orally told me that I would be fired if I did not choose to return as a chair at the end of my leave. On May 5, 2006, I underwent medically necessary sinus surgery to treat a long-standing medical condition, and on May 29, 2006, I suffered a serious fall which fractured two bones in my foot and avulsed a ligament in my ankle. On May 31, 2006, I sent a letter to Mr. Bryan, requesting an extension of the June 16, 2006 deadline due to my medical difficulties. On June 13, 2006, 3 days prior to the June 16, 2006 deadline he had promised me, Mr. Peter Bryan (CEO of KMC) summarily informed me by email that I was being stripped of chairmanship effective June 17, 2006, due to my taking excessive sick/medical/recuperative leaves and my resulting alleged “inability to provide consistent and stable leadership in the department for most of the past eight to nine months”. Mr. Bryan further stated that he was going to grant me 90 days of personal leave, despite the fact that I had not yet exhausted the 6 months’ of cumulative sick leave permitted under Kern County rules. According to the human resources department at KMC, as of June 13, 2006, I had taken, in the aggregate, 12 weeks of CFRA sick leave and approximately 3-4 additional weeks of County sick leave based on doctor’s certifications which I submitted. Prior to June 13, 2006, Mr. Bryan had not communicated to me his concerns regarding my sick/medical/recuperative leaves. In fact, as noted above, Mr. Bryan had in at least two written communications told me that I would have until June 16, 2006 to decide whether to continue or resign my position at KMC. On June 26, 2006, Mr. Bryan stated that I had “recently been seen on the hospital campus” while on leave of absence. He then took the drastic measure of ordering me to “refrain from entering the facility for any reason other than seeking medical attention”, “refrain from contacting any employee or faculty member of Kern Medical Center for any reason other than seeking medical attention”, and stated that “usage of any and all equipment as well as access to any and all systems has been suspended while [on my] approved personal necessity leave of absence”. I discovered that this included suspension of my email and voice mail accounts, to which I require access in order to manage ongoing patient care issues. Mr. Bryan concluded his letter by saying that “Failure to comply with the instructions of this letter, are grounds for disciplinary actions up to and including termination of your contract with the County of Kern.”

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On June 29, 2006, my attorney, Mr. Eugene Lee, sent a letter to Ms. Karen Barnes, Deputy County Counsel for the County of Kern, disclosing my intention to pursue legal remedies against KMC and certain of its officers and employees, and requesting that KMC preserve all evidence relating to my claims. The letter specifically stated that I would be pursuing claims for, among other things, disability discrimination, failure to accommodate disability, retaliation for taking California Family Rights Act medical leaves, etc. On July 3, 2006, I filed a Tort Claims Act form with the County of Kern, describing my related tort and contractual breach claims. In that form, I specifically named as potential defendants Mr. Bryan, Dr. Irwin Harris, Dr. Eugene Kercher, Dr. Scott Ragland, and Dr. Jennifer Abraham, all KMC officers and employees, and Dr. William Roy, a contract physician. I later learned from Deputy County Counsel Karen Barnes in her reply letter to Mr. Lee of July 18, 2006 that on July 10,2006 the KMC Joint Conference Committee had formally voted to accept Mr. Bryan’s recommendation that I be removed as Chair of the Pathology Department. I had no prior notice of this meeting or its agenda. On September 19, 2006, I protested the over 35% reduction in my base salary KMC was proposing due to the removal of my chair duties. On September 20, 2006, the interim CEO, Mr. David Culberson, sent me a letter dismissing my concerns about my pay reduction. On October 4, 2006, I resumed working at KMC as a staff pathologist. My former subordinate, Dr. Philip Dutt (“Dr. Dutt”) had been appointed the acting Chair of the Pathology Department. I continued to suffer discrimination, a hostile work environment, retaliation, and defamation of my professional competence by Dr. Dutt. I believe the hearers of Dr. Dutt’s defamatory statements republished them to other members of KMC’s medical staff and administration. On or about November 28, 2006, after almost six years of trying to reform KMC from within, I finally blew the whistle on KMC, formally reporting my various concerns to the Joint Commission on Accreditation of Hospital Organizations, the College of American Pathologists, and the California Department of Health Services (“Authorities”). On or about December 4, 2006, I submitted a written complaint to KMC leadership about numerous additional concerns regarding the quality of patient care and the deterioration of the pathology department, as well as the discrimination, harassment and retaliation to which Mr. Bryan, Dr. Dutt, Dr. Roy, Dr. Ragland, Dr. Harris, and Mr. Culberson, in particular, subjected me since my return to work on October 4, 2006, and asked KMC to investigate. On December 7, 2006, I was placed on involuntary 3

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administrative leave and restricted to my house during working hours, allegedly “pending resolution of a personnel matter”. On December 13, 2006, I sent a letter to Mr. Culberson and carbon-copied to members of KMC’s medical staff leadership, informing him that I had reported my various concerns to the Authorities. On March 28, 2007, KMC authorized me to access my office in order to retrieve my personal computer files. After driving over 100 miles to Bakersfield and upon arriving at KMC, Dr. Dutt informed me that my office was now locked, that Dr. Dutt now had custody of the key, that my file cabinet and computer had been physically removed and re-tasked for other purposes at KMC, and that I would not be able to access my personal computer files after all. On April 4, 2007, I placed Defendant County on notice that (i) I still had yet to be provided any explanation for my involuntary leave or any indication as to whether or when it would end so that I could return to work, (ii) the involuntary leave requiring me to remain at home by my phone during working hours was threatening to erode my pathology skills, jeopardizing my employability and career as a pathologist, (iii) the involuntary leave was denying me the opportunity to earn income from professional fee billing, and (iv) part-time work was deemed therapeutic for me by his physician and that the confinement to my house during working hours was having the opposite effect of severely exacerbating my depression. On April 30, 2007, Defendant County sent a letter to me notifying me of its decision to lift the home restriction. To date, KMC has not properly investigated my complaints, and I have not received any explanation for the involuntary leave or the restriction to my home. On May 1, 2007, Defendant County sent an email to me notifying me of its decision not to renew my employment contract, which was not due to expire until October 4, 2007, and to “let the contract run out”. To date, I have not received any explanation for the decision not to renew this contract as in the past and as customary at KMC. On October 4, 2007, Defendant County failed to renew my employment contract, which therefore expired.

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EXHIBIT 5: AB 632 Legislative History

USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF SUPPLEMENTAL BRIEF PURSUANT TO COURT’S ORDER OF MARCH 2, 2009 7

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california legislature—2007–08 regular session

ASSEMBLY BILL

No. 632

Introduced by Assembly Member Salas February 21, 2007

An act to amend Section 1278.5 of the Health and Safety Code, relating to health care facilities.
legislative counsel’s digest

AB 632, as introduced, Salas. Health care facilities: whistleblower protections. Existing law provides for the licensure and regulation of health care facilities, as defined, by the State Department of Public Health. Under existing law, a health facility is prohibited from retaliating or discriminating against an employee of a health facility that has presented or initiated a complaint or initiated, participated, or cooperated in, an investigation or proceeding of a government entity relating to the care, services, or conditions of the facility. Existing law makes the violation of these provisions a crime and subject to the assessment of a civil penalty. This bill would additionally prohibit a health facility, or its affiliate, from retaliating or discriminating against a physician and surgeon on its medical staff or on the medical staff of its affiliate who has complained of the care, services, or conditions of the health facility or its affiliate or assisted, as specified, a governmental agency in the investigation of those matters. Because the bill would expand the conduct subject to criminal prosecution by extending the whistleblower protection to a physician and surgeon, it would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. The people of the State of California do enact as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 SECTION 1. Section 1278.5 of the Health and Safety Code is amended to read: 1278.5. (a)  The Legislature finds and declares that it is the public policy of the State of California to encourage patients, nurses, physicians and surgeons, and other health care workers to notify government entities of suspected unsafe patient care and conditions. The Legislature encourages this reporting in order to protect patients and in order to assist those government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations. (b)  (1)  No health facility shall discriminate or retaliate in any manner against any patient or employee of the health facility because that patient or, employee, or any other person, has presented a grievance or complaint, or has initiated, participated, or cooperated in any an investigation or proceeding of any governmental entity, relating to the care, services, or conditions of that facility. No health facility or its affiliate shall discriminate or retaliate in any manner against a physician and surgeon on the medical staff of the health facility or its affiliate because the physician and surgeon has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity, relating to the care, services, or conditions of the facility or its affiliate. (2)  A health facility or its affiliate that violates this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4
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(commencing with Section 1417) for long-term health care facilities. (c)  Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to any a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d)  Any discriminatory treatment of an employee or of a physician and surgeon who has presented a grievance or complaint, or has initiated, participated, or cooperated in any an investigation or proceeding of any governmental entity as specified in subdivision (b), if the health facility had knowledge of the employee’s initiation, participation, or cooperation by the employee or by the physician and surgeon, shall raise a rebuttable presumption that the discriminatory action was taken by the health facility in retaliation, if the discriminatory action occurs within 120 days of the filing of the grievance or complaint. For purposes of this section, “discriminatory treatment of an employee or of a physician and surgeon” shall include discharge, demotion, suspension, any other unfavorable changes in the terms or conditions of employment or of the privileges of the physician and surgeon at the health facility or its affiliate, or the threat of any of these actions. (e)  The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f)  Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000). (g)  An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case. A physician and surgeon who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused

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by the acts of the facility or its affiliate, and the legal costs associated with pursuing the case. (h)  For purposes of this section, “affiliate” means a health facility that is directly or indirectly, through one or more intermediaries, controlled by another health facility. (h) (i)  This section shall not apply to an inmate of a correctional facility or juvenile facility of either the Department of the Youth Authority or the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (i) (j)  This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (j) (k)  Nothing in this section abrogates or limits any other theory of liability or remedy otherwise available at law. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

O
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AB 632 Page 1 Date of Hearing: April 10, 2007

ASSEMBLY COMMITTEE ON HEALTH Mervyn Dymally, Chair AB 632 (Salas) - As Introduced: February 21, 2007 SUBJECT : Health care facilities: whistleblower protections.

SUMMARY : Provides whistleblower protections to physicians and surgeons that currently apply to patients and employees of health facilities. Specifically, this bill : 1)Prohibits a health facility or its affiliate from discriminating or retaliating in any manner against a physician and surgeon on the medical staff of the health facility or its affiliate because the physician and surgeon has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity, relating to the care, services, or conditions of the facility or its affiliate. 2)Subjects an affiliate of a health facility that violates existing whistleblower law to a civil penalty of not more than $25,000. 3)Requires that any discriminatory treatment of a physician and surgeon within 120 days of the filing of the grievance or complaint raises a rebuttable presumption that the action was taken by the health facility in retaliation, if the health facility had knowledge of the physician or surgeon's initiation, participation, or cooperation. Requires "discriminatory treatment of a physician or surgeon" to include discharge, demotion, suspension, any other unfavorable changes in the terms or conditions of the privileges of the physician and surgeon at the health facility or its affiliate,
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or the threat of any of these actions.

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4)Entitles a physician and surgeon who has been discriminated against pursuant to this bill to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or its affiliate, and the legal costs associated with pursuing the case. 5)Defines "affiliate" as a health facility that is directly or

AB 632 Page 2 indirectly, through one or more intermediaries, controlled by another health facility. EXISTING LAW :

1)Prohibits a health facility from discriminating or retaliating in any manner against any patient or employee of the health facility because that patient or employee, or any other person, has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding of any governmental entity, relating to the care, services, or conditions of that facility. Health facility does not include long-term care facility for these purposes. 2)Subjects a health facility that violates #1) above to a civil penalty of not more than $25,000, and requires the penalty to be assessed and recovered through a specified administrative process established for long-term health care facilities. 3)Requires that any discriminatory treatment against a patient within 180 days of the filing of a grievance or complaint to raise a rebuttable presumption that the action was taken by
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the health facility in retaliation for the filing of the grievance or complaint. (Places the burden on the facility to Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 provide that the treatment is not retaliation against a patient based on the complaint.) 4)Requires that any discriminatory treatment of an employee within 120 days of the filing of the grievance or complaint raises a rebuttable presumption that the action was taken by the health facility in retaliation, if the health facility had knowledge of the employee's initiation, participation, or cooperation. Requires "discriminatory treatment of an employee" to include discharge, demotion, suspension, any other unfavorable changes in the terms or conditions of employment, or the threat of any of these actions. 5)Specifies that the presumptions in #3) and #4) above affects the burden of producing evidence, as specified. 6)Makes any person who willfully violates #1)-4) above guilty of a misdemeanor punishable by a fine of not more than $20,000. 7)Requires an employee who has been discriminated against in employment pursuant to #4) above to be entitled to

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AB 632 Page 3 reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case. 8)States that it is the public policy of the State of California that a physician and surgeon be encouraged to advocate for medically appropriate health care for his or her patients. Defines, "to advocate for medically appropriate health care" to mean to appeal a payor's decision to deny payment for a
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service pursuant to the reasonable grievance or appeal procedure established by a medical group, independent practice Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 association, preferred provider organization, foundation, hospital medical staff and governing body, or payer, or to protest a decision, policy, or practice that the physician, consistent with that degree of learning and skill ordinarily possessed by reputable physicians practicing according to the applicable legal standard of care, reasonably believes impairs the physician's ability to provide medically appropriate health care to his or her patients. 9)Prohibits a person from terminating, retaliating against, or otherwise penalizing a physician and surgeon for advocacy specified in #8) above, or from prohibiting, restricting, or in any way discouraging a physician and surgeon from communicating to a patient information in furtherance of medically appropriate health care. 10)Requires medically appropriate health care in a health facility that is a hospital to be defined by the hospital medical staff and approved by the governing body, consistent with that degree of learning and skill ordinarily possessed by reputable physicians practicing according to the applicable legal standard of care. 11)States that #8), #9), and #10) above should not be construed to prohibit the governing body of a hospital from taking disciplinary actions against a physician and surgeon as authorized in the Medical Practice Act, as specified. 12)States that it is in public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through the abuse of the judicial process (this "abuse of judicial process" refers to lawsuits that are commonly called Strategic Lawsuit Against Public Participation or SLAPP suits. The law provides for a

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special motion which a defendant can file at the outset of a SLAPP lawsuit to strike a complaint where the complaint arises from conduct that falls within the rights of petition or free speech). FISCAL EFFECT COMMENTS : : Unknown

1)PURPOSE OF THIS BILL . According to the author, existing whistleblower protections in the Health and Safety Code grant protections from retaliation after a grievance is filed by hospital employees and patients but not physicians. By extending the protections to physicians and surgeons this bill would clarify an ambiguity in existing law. This bill also tailors the prohibited type of discrimination or discipline relevant to physicians and surgeons into this code section. 2)PATIENT SAFETY AND MEDICAL ERRORS . The landmark Institute of Medicine Study To Err is Human focused the nation's attention to errors in hospitals by revealing that at least between 44,000 and 98,000 individuals may die each year in United States hospitals as a result of medical errors. In California, between 1978 and 1999, there were more than 210,000 preventable patient deaths. 3)FRAUD AND FALSE CLAIMS . According to a United States Department of Justice 2006 press release, the United States recovered a record amount of more than $3.1 billion in settlements and judgments in cases involving allegations of fraud against the government. Seventy-two percent of the recoveries were in health care. Health care fraud accounted for $2.2 billion in settlements and judgments, including a $920 million settlement with Tenet Healthcare Corporation, the nation's second largest hospital chain. Although Medicare and Medicaid, under the jurisdiction of the federal Department of Health and Human Services, bear the brunt of health care fraud, other programs that were affected include the Federal Employees Health Benefits Program run by the Office of
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Personnel Management, the TRICARE military health insurance programCase 1:07-cv-00026-OWW-DLB Defense, and health care run by the Department of Document 306-2 Filed 03/09/2009 programs run by the Department of Veterans Affairs, the Department of Labor and the Railroad Retirement Board. 4)RETALIATION . According to this bill's sponsor, the California

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AB 632 Page 5 Medical Association (CMA), the issue of retaliation appears in several ways. One way is a direct retaliation for a statement made by a physician regarding concerns of quality of care. According to CMA, the most recent example occurred at Western Medical Center Santa Ana, when the new owners Integrated Healthcare Holdings Inc. (IHHI) sued Michael Fitzgibbons, M.D. a past chief of staff when Dr. Fitzgibbons expressed concerns about the financial viability of the hospital. Dr. Fitzgibbons expressed his concern that a hospital's survival (it was a trauma center) has direct implications on the ability of physicians to provide quality of care for their patients. IHHI sued Fitzgibbons, who ultimately won this SLAPP suit at the appellate level with the help of CMA and the American Medical Association. According to CMA, while this suit was going on, physicians on the medical staff at Western Medical Center Santa Ana, and the other three hospitals owned by IHHI were silenced for the fear of the hospital suing them. CMA provided the committee with a list of methods hospitals can use to suppress whistleblowers. Some of the examples include: 1. Underwriting the salary and/or practice expense of a competing physician; 2. Recruiting competing physicians to the community in the absence of a community deficit for that specialty; 3. Establishing a medical care foundation and supporting its physicians with hospital funds;
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4.

Establishing a medical practice administrative service company for selected physicians and charging below market Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 rates so that the doctor keeps a higher percentage of collections and gains a competitive advantage; 5. Buying the medical building with a 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 specialists' 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) that provide lucrative annual returns on investment (e.g. 50% return of investment or ROI annually); and, 10. Providing special equipment leasing arrangements for

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AB 632 Page 6 selected physicians with above market ROI. 3)SUPPORT . According to CMA, this bill clarifies existing law by extending hospital whistleblower protections to physicians and surgeons. Currently the law provides protections to employees and patients and "any other person" who makes complaints about a health facility. CMA states that some attorneys have used this same section to deny protections to a physician who raised concerns by claiming that the physician was not an employee or patient. CMA believes this bill will prevent the argument from happening again, since most physicians are not employees of a hospital. In addition, the California Alliance for Retired Americans believes it is
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important that physicians in hospital settings feel free to report Case 1:07-cv-00026-OWW-DLB conditions which may be unsafe for patient care. 03/09/2009 Document 306-2 Filed One physician who wrote in support of this bill, indicates that the Redding Medical Center (Tenet) disaster is a good example of what intimidation can do to patients because hundreds of patients were damaged or killed by doctors at the financial benefit of Tenet. 4)SUGGESTED AMENDMENTS . a) The definition of and reference to "affiliate" is vague and may not be necessary. The author may wish to consider deleting it. b) On page 3, line 11, before the comma add "to the health facility." REGISTERED SUPPORT / OPPOSITION Support California Medical Association (sponsor) American Federation of State, County and Municipal Employees, AFL-CIO California Academy of Ophthalmology California Alliance for Retired Americans California Society of Anesthesiologists Citizens Commission on Human Rights San Bernardino Public Employees Association One physician Opposition None on file. :

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AB 632 Page 7
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Teri Boughton / HEALTH / (916) 319-2097

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UNOFFICIAL BALLOT MEASURE: AB 632 AUTHOR: Salas TOPIC: Health care facilities: whistleblower protect DATE: 04/10/2007 LOCATION: ASM. HEALTH MOTION: Do pass as amended and be re-referred to the Committee on Appropriations. (AYES 16. NOES 0.) (PASS)

AYES **** Dymally De Leon Hayashi Lieber Nakanishi Emmerson Hernandez Ma Salas Bass Berg Gaines Hancock Huff Jones Strickland

NOES ****

ABSENT, ABSTAINING, OR NOT VOTING ********************************* De La Torre

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AMENDED IN ASSEMBLY APRIL 17, 2007
california legislature—2007–08 regular session

ASSEMBLY BILL

No. 632

Introduced by Assembly Member Salas February 21, 2007

An act to amend Section 1278.5 of the Health and Safety Code, relating to health care facilities.
legislative counsel’s digest

AB 632, as amended, Salas. Health care facilities: whistleblower protections. Existing law provides for the licensure and regulation of health care facilities, as defined, by the State Department of Public Health. Under existing law, a health facility is prohibited from retaliating or discriminating against an employee of a health facility that has presented or initiated a complaint or initiated, participated, or cooperated in, an investigation or proceeding of a government entity relating to the care, services, or conditions of the facility. Existing law makes the violation of these provisions a crime and subject to the assessment of a civil penalty. This bill would additionally prohibit a health facility, or its affiliate, from retaliating or discriminating against a physician and surgeon on its medical staff or on the medical staffof its affiliate who has complained of the care, services, or conditions of the health facility or its affiliate or assisted, as specified, a governmental agency in the investigation of those matters, and would also prohibit the entity that owns or operates the facility and any other facility owned or operated by that entity from retaliating or discriminating against the physician and surgeon because of taking those actions.
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Because the bill would expand the conduct subject to criminal prosecution by extending the whistleblower protection to a physician and surgeon, it would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. The people of the State of California do enact as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SECTION 1. Section 1278.5 of the Health and Safety Code is amended to read: 1278.5. (a)  The Legislature finds and declares that it is the public policy of the State of California to encourage patients, nurses, physicians and surgeons, and other health care workers to notify government entities of suspected unsafe patient care and conditions. The Legislature encourages this reporting in order to protect patients and in order to assist those government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations. (b)  (1)  No health facility shall discriminate or retaliate in any manner against any patient or employee of the health facility because that patient, employee, or any other person has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity, relating to the care, services, or conditions of that facility. No health facility or its affiliate shall discriminate or retaliate in any manner against a physician and surgeon on the medical staff of the health facility or its affiliate because the its medical staff because the physician and surgeon has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity, relating to the care, services, or conditions of the facility or its affiliate, nor shall the entity that owns or operates the health facility or any
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40

other health facility that is owned or operated by that entity discriminate or retaliate against the physician and surgeon for taking those actions with respect to the facility where he or she is a member of the medical staff. (2)  A health facility or its affiliate that violates this section shall (2)  A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities. (c)  Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d)  Any discriminatory treatment of an employee or of a physician and surgeon who has presented a grievance or complaint to the health facility, peer review body, or any other agency or entity responsible for reviewing health care quality, or who has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity as specified in subdivision (b), if the health facility had knowledge of the initiation, participation, or cooperation by the employee or by the physician and surgeon, shall raise a rebuttable presumption that the discriminatory action was taken by the health facility in retaliation, if the discriminatory action occurs within 120 days of the filing of the grievance or complaint. For purposes of this section, “discriminatory treatment of an employee or of a physician and surgeon” shall include discharge, demotion, suspension, any other unfavorable changes in the terms or conditions of employment or of the privileges of the physician and surgeon at the health facility or its affiliate, or the threat of any of these actions. (e)  The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f)  Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000).
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(g)  An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case. A physician and surgeon who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or its affiliate the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, and the legal costs associated with pursuing the case. (h)  For purposes of this section, “affiliate” means a health facility that is directly or indirectly, through one or more intermediaries, controlled by another health facility. (i) (h)  This section shall not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (j) (i)  This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (k) (j)  Nothing in this section abrogates or limits any other theory of liability or remedy otherwise available at law. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. O
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AB 632 Page 1 Date of Hearing: April 25, 2007

ASSEMBLY COMMITTEE ON APPROPRIATIONS Mark Leno, Chair AB 632 (Salas) - As Introduced: Policy Committee: 16-0 Urgency: No Yes Reimbursable: SUMMARY This bill adds physicians and surgeons to employees of health facilities and facility affiliates that have "whistleblower" protection from retaliation or discrimination in specified circumstances. Specifically, this bill: 1)Adds physicians and surgeons to groups of people in health care settings provided protected status against retaliation with regard to cooperation in complaints and investigations. 2)Specifies these protections are not applicable to inmates of a juvenile correctional facility. FISCAL EFFECT Negligible costs for hospitals to comply with the provisions of this bill. COMMENTS April 17, 2007 Health Vote:

State Mandated Local Program: No

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1)

Rationale . This bill, sponsored by the California MedicalCase 1:07-cv-00026-OWW-DLB Association (CMA), adds physicians and surgeons to Document 306-2 Filed 03/09/2009 classes of people including patients and facility employees protected from retaliation or discrimination as the result of submitting a grievance or complaint. The bill clarifies current law to ensure that physicians and surgeons have these protections. Under some circumstances these individuals have been denied protection under current law.

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AB 632 Page 2 2) Background . A whistleblower is an informant, usually an employee, who reports employer misconduct in the hopes of stopping it. In order to encourage disclosure, many federal and state statutes prohibit employers from retaliating against an employee who files complaint or cooperates in an investigation. Examples of complaints are concerns about quality of care, hospital financial stability, billing fraud, and patient neglect. CMA indicates that some of their members have been sued, bypassed, and targeted by hospitals and health care facilities after expressing some of these concerns.

3)

Related Legislation . SB 97 (Burton), Chapter 155, Statutes of 1999, created the whistleblower protection for patients and employees of health care facilities.

Analysis Prepared by

:

Mary Ader / APPR. / (916) 319-2081

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UNOFFICIAL BALLOT MEASURE: AB 632 AUTHOR: Salas TOPIC: Health care facilities: whistleblower protect DATE: 04/25/2007 LOCATION: ASM. APPR. MOTION: Do pass, to Consent Calendar. (AYES 15. NOES 0.) (PASS)

AYES **** Leno Walters Caballero Davis DeSaulnier Emmerson Huffman Karnette Krekorian La Malfa Lieu Nakanishi Nava Sharon Runner Solorio

NOES ****

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UNOFFICIAL BALLOT MEASURE: AB 632 AUTHOR: Salas TOPIC: Health care facilities: whistleblower protect DATE: 05/03/2007 LOCATION: ASM. FLOOR MOTION: AB 632 SALAS Consent Calendar Second Day Regular Session (AYES 70. NOES 0.) (PASS)

AYES **** Adams Aghazarian Anderson Bass Beall Berg Berryhill Blakeslee Brownley Caballero Charles Calderon Cook Coto Davis De La Torre De Leon DeSaulnier DeVore Duvall Dymally Emmerson Eng Evans Feuer Fuller Gaines Galgiani Garcia Garrick Hancock Hayashi Hernandez Horton Houston Huffman Jeffries Jones Karnette Keene Krekorian La Malfa Laird Leno Levine Lieber Lieu Ma Maze Mendoza Mullin Nakanishi Niello Parra Portantino Price Richardson Salas Saldana Silva Smyth Solorio Strickland Swanson Torrico Tran Villines Walters Wolk Nunez

Carter

NOES ****

ABSENT, ABSTAINING, OR NOT VOTING ********************************* Arambula Benoit Huff Nava

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AMENDED IN SENATE JUNE 6, 2007 AMENDED IN ASSEMBLY APRIL 17, 2007
california legislature—2007–08 regular session

ASSEMBLY BILL

No. 632

Introduced by Assembly Member Salas February 21, 2007

An act to amend Section 1278.5 of the Health and Safety Code, relating to health care facilities.
legislative counsel’s digest

AB 632, as amended, Salas. Health care facilities: whistleblower protections. Existing law provides for the licensure and regulation of health care facilities, as defined, by the State Department of Public Health. Under existing law, a health facility is prohibited from retaliating or discriminating against an employee of a health facility that has presented or initiated a complaint or initiated, participated, or cooperated in an investigation or proceeding of a government entity relating to the care, services, or conditions of the facility. Existing law makes the violation of these provisions a crime and subject to the assessment of a civil penalty. This bill would additionally prohibit a health facility, from discriminating or retaliating or discriminating against any patient, employee, a physician and surgeon on its member of the facility’s medical staff, or any other health care worker of the facility who has complained of the care, services, or conditions of the health facility or assisted, as specified, a governmental agency in the investigation of those matters, and would also prohibit the entity that owns or operates

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the facility and any other facility owned or operated by that entity from retaliating or discriminating against the physician and surgeon because of taking those actions (1) has presented a grievance, complaint, or report to an entity or agency responsible for accrediting or evaluating the facility or to any other governmental entity; or (2) has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as provided. Because the bill would expand the conduct subject to criminal prosecution by extending the whistleblower protection to a physician and surgeon definition of a crime, it would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. The people of the State of California do enact as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 SECTION 1. Section 1278.5 of the Health and Safety Code is amended to read: 1278.5. (a)  The Legislature finds and declares that it is the public policy of the State of California to encourage patients, nurses, physicians and surgeons members of the medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions. The Legislature encourages this reporting in order to protect patients and in order to assist those government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations. (b)  (1)  No health facility shall discriminate or retaliate in any manner against any patient or employee of the health facility because that patient, employee, or any other person has presented a grievance or complaint, or has initiated, participated, or
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cooperated in an investigation or proceeding of any governmental entity, relating to the care, services, or conditions of that facility. No health facility shall discriminate or retaliate in any manner against a physician and surgeon on its medical staff because the physician and surgeon has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity, relating to the care, services, or conditions of the facility, nor shall the entity that owns or operates the health facility or any other health facility that is owned or operated by that entity discriminate or retaliate against the physician and surgeon for taking those actions with respect to the facility where he or she is a member of the medical staff. (b)  (1)  No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility who has done either of the following: (A)  Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. (B)  Has initiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity. (2)  No entity that owns or operates a health facility, or which owns or operates any other health facility, shall discriminate or retaliate against any person who has taken any actions pursuant to this subdivision. (2) (3)  A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities. (c)  Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that
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the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d)  Any discriminatory treatment of an employee or of a physician and surgeon who has presented a grievance or complaint to the health facility, peer review body, or any other agency or entity responsible for reviewing health care quality, or who has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity as specified in subdivision (b), if the health facility had knowledge of the initiation, participation, or cooperation by the employee or by the physician and surgeon, shall raise a rebuttable presumption that the discriminatory action was taken by the health facility in retaliation, if the discriminatory action occurs within 120 days of the filing of the grievance or complaint. For purposes of this section, “discriminatory treatment of an employee or of a physician and surgeon” shall include discharge, demotion, suspension, any other unfavorable changes in the terms or conditions of employment or of the privileges of the physician and surgeon at the health facility, or the threat of any of these actions. (d)  (1)  There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility. (2)  For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any other unfavorable changes in the terms or conditions of employment or of the privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions.

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(e)  The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f)  Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000). (g)  An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case. A physician and surgeon member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, and the legal costs associated with pursuing the case. (h)  For purposes of this section, “health facility” means any facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff. (h) (i)  This section shall not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (i) (j)  This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (j) (k)  Nothing in this section abrogates or limits any other theory of liability or remedy otherwise available at law. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or
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infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

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SENATE HEALTH COMMITTEE ANALYSIS Senator Sheila J . Kuehl, Chair

BILL NO: A AUTHOR: B AMENDED: HEARING DATE: 6 REFERRAL: 3 FISCAL: 2 CONSULTANT: Diaz/Hansel/cjt

AB 632 Salas June 6, 2007 June 13, 2007 Health and Judiciary Appropriations

SUBJECT Health care facilities: whistleblower protections. SUMMARY Establishes protections, similar to those in existing law for employees and patients, for medical staff and other health care workers who file complaints or grievances concerning a licensed health care facility, or who initiate or participate in an investigation or proceeding related to the quality of care, services, or conditions at the facility.
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Existing state law Existing law prohibits a health care facility from discriminating or retaliating against a patient, employee, or any other person who presents a grievance or complaint, or has initiated or cooperated with a government agency in the investigation about the care, services, or conditions of the facility. Existing law subjects a health care facility to a civil penalty of no more than $25,000 for violations of these provisions, and provides that any Continued---

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person who willfully violates them is guilty of a misdemeanor punishable by a fine of no more than $20,000. Existing law provides that any type of discriminatory treatment of a patient by whom, or on whose behalf, a grievance or complaint has been submitted, within 180 days of the filing of the grievance or complaint, raises a rebuttable presumption that a retaliatory action was taken. Existing law also provides that any discriminatory treatment of an employee who has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding, within 120 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that a retaliatory action was taken. Existing law defines discriminatory treatment of an employee to include the discharge, demotion, suspension, any unfavorable changes in the terms or conditions of employment, or the threat of these actions. Existing law requires that employees who have been
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discriminated against by their employers be reinstated and reimbursed for lost wages and benefits and for the legal 03/09/2009 Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed costs associated with pursuing their case. Existing law provides similar whistleblower protections for patients and employees of long-term care facilities and extends those protections additionally to complainants generally. Existing law also provides that the protections do not apply to an inmate of a correctional facility, juvenile detention facility, or local detention facility. Existing law also provides that it is the public policy of the state to encourage physicians and surgeons to advocate for medically appropriate health for their patients and provides that no person shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that advocacy, nor shall any person prohibit, restrict, or in any way discourage a physician and surgeon from communicating to a patient information in furtherance of medically appropriate health care. For purposes of existing law, advocating for medically appropriate care is defined as the appeal of a payer's decision to deny payment for a service pursuant to the grievance or appeal procedure established by a medical group, independent practice association, preferred provider organization, foundation,

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hospital medical staff and governing body, or payer, or to protest a decision, policy, or practice that a physician believes impairs his or her ability to provide medically appropriate health care to his or her patients. Existing federal law Existing federal law, the Sarbanes-Oxley Act of 2002, prohibits a publicly traded company or any officer,
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employee, contractor, subcontractor, or agent of such company, Case 1:07-cv-00026-OWW-DLB from discriminating against Document 306-2 against or retaliating Filed 03/09/2009 an employee who has provided information or assisted in an investigation relating to mail, telecommunications, or shareholder fraud involving the company. Additionally, the federal Civil False Claims Act provides protections for persons who are demoted, suspended, threatened, harassed, or in any manner discriminated against for filing a complaint or providing information that a person or company has knowingly submitted false claims for reimbursement to the federal government. This bill: This bill extends the protection from discrimination or retaliation by a health care facility against persons who present grievances or complaints, or who initiate an investigation regarding the facility's quality of care, services, or conditions, to members of the medical staff and other health care workers of the facility. This bill also extends the rebuttable presumption that a retaliatory action has occurred, if discriminatory treatment occurs within 120 days of the filing of the grievance or complaint, to members of the medical staff and other health care workers. This bill provides that members of the medical staff who have suffered from such retaliation or discrimination shall be reinstated and reimbursed for lost income resulting from any change in the terms or conditions of their privileges caused by the acts of the facility or entity that owns the facility. The bill additionally clarifies that the prohibition on discriminatory or retaliatory action by a health facility extends to the facility's administrative personnel, employees, boards, and committees of the board, and medical staff, as well as an entity that owns or operates a health

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care facility. This bill also clarifies that complaints to and investigations carried out by entities or agencies responsible for accrediting or evaluating the facility are subject to health facility whistleblower protections.

FISCAL IMPACT The Assembly Appropriations Committee analysis states that there will be negligible costs for hospitals to comply with the provisions of this bill. BACKGROUND AND DISCUSSION According to the author, existing law does not fully protect physicians and other health professionals from retaliation if they make a complaint or grievance about a health facility. The author states that currently, this protection only applies to patients, employees, and the nebulous term, "any other person." The author states that some attorneys have interpreted this to deny protections to physicians and other members of the medical staff because they are not employees or patients of the health facility. Members of the medical staff, which can include physicians and surgeons, podiatrists, opthamologists, pathologists, and radiologists, interact with peer review bodies that establish by-laws and regulations pertaining to professional conduct. Complaints about quality of care issues pertaining to health facilities can be raised with a peer review body, hospital governing board, or accrediting agency. However, the author and sponsor state that, in some cases, physicians who raise a complaint to any of these bodies are not protected under current law against retaliation and that AB 632 will clarify existing law to prevent abuses against physicians and other health professionals
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Process to file complaints and grievances Complaints about the quality of care,Document 306-2 services, or Case 1:07-cv-00026-OWW-DLB Filed 03/09/2009 conditions of health care facilities can be submitted in a number of ways. Any person can present a complaint to the chief administrative officer of the health facility or file a complaint with Department of Health Services' (DHS)

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licensing and certification unit by contacting the district office where that health facility is located. A complaint may also be filed with the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), which may conduct an onsite evaluation if the complaint made about an accredited health facility raises serious concerns about patient safety or failure to comply with quality standards of care. The Joint Commission states on its website that it forbids accredited or certified health care organizations from taking retaliatory actions against employees for reporting quality of care concerns. Employment status of medical staff Current state law prohibits the employment of physicians by corporations or other entities that are not controlled by physicians. For that reason, most members of the medical staff are not considered employees of a hospital and must establish contractual relationships with the hospital, either individually or through medical groups. Some exceptions are teaching hospitals, certain clinics, and hospitals owned and operated by a health care district. Number of complaints regarding health facilities DHS reports that in 2006 there were a total of 30,287 complaints made about the quality of care, services, or conditions of health facilities in California. A majority
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of these complaints (70.25 percent) were reported by a health facility official or employee,Document 306-2percent 03/09/2009 while 29.25 Case 1:07-cv-00026-OWW-DLB Filed were reported by patients and other persons. At this time, however, DHS cannot provide data distinguishing whether the health facility official who made the complaint was a physician, nurse, or other health care staff member who is not an employee. Arguments in support CMA, the sponsor of this bill, states that AB 632 is necessary to clarify existing law to protect physicians from retaliation or discrimination related to raising concerns about patient care. According to CMA, hospitals may use a variety of methods to suppress physician whistleblowers, including removing a physician from a referral list, forcing a doctor out of a hospital-owned complex, or underwriting the salary or practice expense of a competing physician. As a result, physicians must decide between reporting allegations of poor patient care and

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protecting their practice and livelihood from harm. CMA cites the case of Integrated Healthcare Holdings, Inc. (IHHI), the owner of Western Medical Center in Santa Ana, CA, which sued Dr. Michael Fitzgibbons after he expressed concerns that the hospital's financial troubles threatened the ability of physicians to provide quality care for their patients. According to CMA, during the lawsuit, IHHI threatened to retaliate against the medical staff at Western Medical Center and the staff at three other IHHI-owned hospitals if they participated in the investigation. CMA also cites a similar case that occurred when Tenet, one of the largest for-profit hospital chains, silenced
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physicians at a Redding, CA hospital who knew about unnecessary open-heart surgeries and Document 306-2 Medicare billing Filed 03/09/2009 fraud Case 1:07-cv-00026-OWW-DLB occurring at the hospital. The California chapter of the American College of Emergency Physicians and the California Academy of Ophthamology state that AB 632 would go a long way to help to improve the quality of care for patients by eliminating the fear of retribution or retaliation physicians face when reporting sub-standard patient care, services or facilities. The American Federation of State, County, and Municipal Employees (AFSCME) and the San Bernardino Public Employees Association believe that AB 632 strengthens job security for health care workers so that they feel encouraged to report problems in the workplace instead of facing backlash. Arguments in opposition The California Hospital Association (CHA) believes there are already sufficient whistleblower protections in existing state and federal law for physicians and surgeons. In addition, CHA states that there is no evidence that physicians have been subject to retaliation or that current statutory protections are inadequate. CHA further argues that the statute that this bill seeks to amend was designed to protect patients and employees from retaliation for raising quality of care concerns, and was not designed to protect physicians and surgeons. CHA argues that the relationship between a hospital and physicians and surgeons who have staff privileges at the hospital differs significantly from the hospital's relationship with its

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employees.

Among other things, the relationship between

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hospitals and physicians is governed by medical staff by-laws and hospital peer review processes. In addition, 03/09/2009 Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed physicians and surgeons already have protections under state law for instances in which they advocate for medically appropriate care, and are also protected under federal statutes for reporting instances of fraud, overbilling, and violations of Stark and anti-kickback statutes. Finally, CHA believes that this bill needs further clarification to ensure that hospitals retain the right to take disciplinary action with regard to disruptive behavior by employees, patients and physicians, regardless of their protected activity.

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PRIOR ACTIONS Assembly Health Committee: Assembly Appropriations: Assembly Floor: 16-0 15-0 70-0

POSITIONS Support: California Medical Association (sponsor) American College of Emergency Physicians, California Chapter American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) California Academy of Ophthalmology California Alliance for Retired Americans California Society of Anesthesiologists Citizens' Commission on Human Rights San Bernardino Public Employees Association One radiologist Oppose: California Hospital Association

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UNOFFICIAL BALLOT MEASURE: AB 632 AUTHOR: Salas TOPIC: Health care facilities: whistleblower protect DATE: 06/13/2007 LOCATION: SEN. HEALTH MOTION: Do pass, but re-refer to the Committee on Judiciary. (AYES 11. NOES 0.) (PASS)

AYES **** Kuehl Aanestad Cox Maldonado Steinberg Wyland Alquist Cedillo Negrete McLeod Ridley-Thomas Yee

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UNOFFICIAL BALLOT MEASURE: AB 632 AUTHOR: Salas TOPIC: Health care facilities: whistleblower protect DATE: 07/10/2007 LOCATION: SEN. JUD. MOTION: Do pass as amended, and re-refer to the Committee on Appropriations. (AYES 5. NOES 0.) (PASS)

AYES **** Corbett Harman Steinberg Ackerman Kuehl

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SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2007-2008 Regular Session

AB 632 Assemblymember Salas As Amended June 6, 2007 Hearing Date: July 10, 2007 Health and Safety Code GMO:jd

A B 6 3 2

SUBJECT Health Care Facilities: Whistleblower Protection for Doctors and Other Health Care Workers

DESCRIPTION The bill would revise and recast portions of the whistleblower statute that protects patients and employees of a health facility from discrimination or retaliation for complaining about the health facility or cooperating in the investigation of the health facility by a government entity. These revisions would: (1) expand coverage of the whistleblower protections to members of the medical staff (physicians) and other health care workers who are not employees of the health facility; (2) extend the whistleblower protections to complaints or grievances made to an entity or agency responsible for accrediting or evaluating the health facility (in
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addition to those made to a government entity under existing law) or its medical staff;Document 306-2 Case 1:07-cv-00026-OWW-DLB Filed 03/09/2009 (3) extend the whistleblower protections to participation or cooperation in an investigation or administrative proceeding carried out by an entity or agency responsible for accrediting or evaluating the health facility (in addition to those carried out by a governmental entity under existing law) or its medical staff; and (4) extend the prohibition against discrimination or retaliation to any entity that owns or operates a health (more)

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facility. The bill would make conforming changes to provide appropriate whistleblower protections and remedies to physicians similar to those provided to employees of the health facility. BACKGROUND Physicians and surgeons are provided protection against retaliation when they advocate for medically appropriate health care for their patients. (Business & Professions Code 2056.) The statute defines "to advocate for medically appropriate health care" as appealing a payor's decision to deny payment for a service pursuant to established rules, or protesting a decision, policy, or practice that the physician reasonably believes impairs the physician's ability to provide medically appropriate health care to his or her patients. To preserve the highest standards of medical practice in the state, the Legislature enacted the peer review process
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by which a committee comprised of licensed medical personnel at a hospital evaluates physicians applying Filed 03/09/2009 for Case 1:07-cv-00026-OWW-DLB Document 306-2 privileges, establishes standards and procedures for patient care, assesses the performance of physicians currently on staff, and reviews other matters critical to the hospital's functioning and duty to ensure quality care. (Business & Professions Code 809, 809.5.) Additionally, to protect patients and in order to assist those government entities charged with ensuring that health care is safe, patients and employees of a health facility are protected from discrimination or retaliation when they notify governmental entities of suspected unsafe patient care and conditions at the facility and when they cooperate in the investigation of the care, services, and conditions of the health facility by a governmental entity. (Health & Safety Code 1278.5.) The legislative findings and declarations contained in the statute specify that these whistleblower protections are not intended to conflict with existing provisions in state and federal law relating to employer-employee relations. According to the California Medical Association (CMA),

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sponsor of AB 632, because physicians are generally not "employees" of a health facility, they do not benefit from the whistleblower protections afforded by Health & Safety Code 1278.5. Thus, when they see problems with patient care beyond their own patients they may actually do nothing about it, for fear of retaliation or discrimination. AB 632 is intended to cure this gap in coverage for whistleblowing in the health care context, and would extend the whistleblower protection further by making an entity
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that owns or operates a health facility liable for the unlawful Case 1:07-cv-00026-OWW-DLB acts of the health facility.Document 306-2 Filed 03/09/2009 CHANGES TO EXISTING LAW Existing law prohibits an employer from preventing an employee from disclosing information to a government or law enforcement agency when that employee has reasonable cause to believe that the information discloses employer's violation of or noncompliance with state or federal law. It also prohibits an employer from retaliating against an employee for that disclosure, or for refusing to participate in an activity that will result in a violation of or noncompliance with state or federal law. A violation subjects an employer to civil penalties of up to $10,000 in addition to actual damages. (Labor Code 1102.5.) Existing law , the federal Sarbanes-Oxley Act, protects whistleblowers from retaliatory action by employers and provides for both injunctive relief and damages for violations. Existing law prohibits a health facility from discriminating or retaliating against a patient, employee, or any other person who presents a grievance or complaint, or who has initiated or cooperated with a government agency in an investigation or proceeding about the care, services, or conditions of the facility. (Health & Safety Code 1278.5(b).) (All references are to the Health and Safety Code unless otherwise indicated.) Existing law establishes a rebuttable presumption that the discriminatory action was taken in retaliation against an employee if the discriminatory action was taken within 120 days of the presentation of a complaint or grievance or

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cooperation with an investigation, if the health facility had knowledge of the employee's action. ( 1278.5(d).) This bill would extend the prohibition against discrimination or retaliation under 1278.5(b) to an entity that owns or operates a health facility. This bill would additionally protect members of the medical staff or any other health care worker of the health facility from discrimination or retaliation. This bill would also extend to the facility's medical staff and other health care workers the rebuttable presumption that a discriminatory act was in retaliation for an employee's whistleblowing action, when the discriminatory act occurs within 120 days of the employee's action. This bill would expand the scope of activities for which the whistleblower protections would apply, to include (1) presentation of a complaint or grievance or report to an entity or agency responsible for accrediting or evaluating the facility or its medical staff, and (2) initiation, participation, or cooperation in an investigation or administrative proceeding related to the quality of care, services, or conditions that is carried out by an entity or agency accrediting or evaluating the facility or its medical staff. This bill would define a "health facility" subject to the whistleblower prohibitions against discrimination or retaliation to include the facility's administrative personnel, employees, boards and committees of the board, and medical staff. COMMENT 1. Stated need for the bill According to the CMA, sponsor of AB 632, "[Health & Safety Code 1278.5] provides protections to employees and patients and the nebulous term 'or any other person.' Unfortunately, enterprising attorneys have used this
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section to deny protections for a physician who raised concerns of 1:07-cv-00026-OWW-DLB correctly stating that 03/09/2009 Case poor patient care by Document 306-2 Filed the physician was not an employee or patient. This bill will prevent that argument from happening again. ?Health and Safety Code 1278.5 is the only section of law that

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grants protection to members of the medical staff when they see problems with patient care beyond their own patients. As such this section must be clarified and strengthened. ?Often physicians are faced with having to decide if they should report allegations of poor patient care or conditions knowing their practice and livelihood may be harmed. Unfortunately, too often the physician decides not to report sub-standard or questionable care. When a physician observes retaliation or discrimination against another physician who speaks out, it is less likely that any more will come forward." The CMA claims that in the case of Integrated Health Care Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, the health facility owner (IHHI) of Western Medical Center in Santa Ana sued Dr. Fitzgibbons after he expressed concerns that the hospital's financial troubles threatened the ability of physicians to provide quality care for their patients. Dr. Fitzgibbons invoked and received the protection of the anti-SLAPP statute in that case. However, according to CMA, during the lawsuit, IHHI threatened to retaliate against the medical staff at Western Medical Center and the staff at three other IHHI-owned hospitals if they participated in the investigation. CMA also cites a similar case that occurred when Tenet, one of the largest for-profit hospital chains, silenced physicians at a Redding, California hospital who knew about unnecessary open-heart
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surgeries and Medicare billing fraud occurring at the hospital. 1:07-cv-00026-OWW-DLB Case Document 306-2 Filed 03/09/2009 In response to CMA's arguments, however, the California Hospital Association (CHA) proposes to amend Business and Professions Code 2056 instead, to clarify that among the activities of a physician that are protected against retaliation (outside of the peer review process) are the filing of a complaint or the initiation or participation in an investigation or proceeding. (See Comment 3.)

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2.

Extending whistleblower protection to medical staff and to other health care workers The goal of Health & Safety Code 1278.5 is to protect

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patients from unsafe care and conditions at a health facility. Thus, reports or grievances about the care, services, and conditions of the facility that are made by either patients or employees are protected. A rebuttable presumption arises if a retaliatory action occurs against a patient within 180 days of making a complaint or if a retaliatory action occurs against an employee within 120 days of making a complaint. The protection extends to initiation of or participation in an investigation or proceeding by a government entity. A violation of this prohibition subjects a health facility to a civil penalty of not more than $25,000. A willful violation by a person is a misdemeanor punishable by a fine of $20,000. An employee who has been discriminated against is entitled to reinstatement,
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reimbursement for lost wages and work benefits caused by the acts of 1:07-cv-00026-OWW-DLB costs associated with Case the employer, and legalDocument 306-2 Filed 03/09/2009 pursuing the case. a. Physicians are not employees; who are "other health workers" covered by the bill? SB 97 (Burton), Chapter 155, Statutes of 1999, extended the whistleblower protections then available to patients and employees of a long-term health care facility to patients and employees of health facilities (hospitals) for filing a grievance or providing information to a governmental entity regarding care, services, or conditions at the facility. That bill was introduced at the behest of nurses who complained that various forms of discrimination or retaliation were the normal response they received when they reported problems regarding quality of care at their places of employment. The legislative findings and declarations contained in SB 97 referred to the state's policy of encouraging "patients, nurses, and other health care workers" to notify government entities of suspected unsafe patient care and conditions. However, the operative part of the statute that was enacted referred only to whistleblower protections for "any patient or employee of the health facility" when "the patient, employee, or any other person has presented a grievance" or

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complaint about the facility. This bill would insert "members of the medical staff"
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into the legislative findings and declarations relating 1:07-cv-00026-OWW-DLB would then 306-2 Case to state policy. It Document prohibit a 03/09/2009 Filed health facility from discriminating or retaliating against "any patient, employee, member of the medical staff, or any other health care worker of the health facility," thus expanding the whistleblower protections of 1278.5 to all health care workers at the facility, including physicians. "Medical staff" as used in Business & Professions Code 2282 refers to a group of five or more physicians permitted to practice in the hospital. Both CMA and the CHA agree that physicians are generally not employees of a hospital. Instead, they enjoy privileges at the hospital and have a relationship with the hospital that is governed by Medical Staff By-Laws, a peer review process, the protections of Business and Professions Code 809, and other protective measures. (See Comment 3.) According to the CMA, even though there is no definition of "other health care workers" used in the legislative findings, it could be interpreted to include persons such as blood, organ, and tissue transporters, emergency medical technicians or paramedics, and physical therapists. By adding the phrase "other health care workers" in the protected class, therefore, these persons would enjoy the whistleblower protections now enjoyed only by patients and employees of the health facility. b. Retaliation: what conduct is prohibited vis a vis doctor whistleblowers? What remedies do they have? All of the state's whistleblower statutes apply to employees who disclose information about their employer's activities or proposed activities that violate or will violate the law in some manner. Thus, these statutes provide for various remedies that only employees could be entitled to, that are ascertainable and easily enforced.
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Current 1278.5 in fact enumerates various remedies for an employee who has been discriminated or retaliated against: reinstatement, reimbursement for lost wages and work benefits caused by the employer's actions, and legal costs associated with pursuing the whistleblower's case under the statute. Because the physician and medical staff are most likely not employees of a hospital, the remedies available to them could be entirely different, depending on the retaliatory action that was taken. According to the CMA, 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
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investment partnerships with selected physicians (surgery 1:07-cv-00026-OWW-DLBthat provide lucrative 03/09/2009 Case center, MRI center) Document 306-2 Filed 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. AB 632 however would provide only the following remedies to a physician who was discriminated or retaliated against: reinstatement (of privileges?), reimbursement for lost income resulting from any

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change in the terms of conditions of his or her privileges caused by the health facility's acts or acts of any other facility owned or operated by the entity, and the legal costs of pursuing the case. It would seem that none of these remedies would give adequate redress to a physician who suffered any of the retaliatory acts named above. SHOULD THERE BE A CATCH-ALL PROVISION FOR A COURT TO FASHION WHATEVER REMEDY WOULD FIT THE RETALIATORY ACT? As to the "other health care workers" - the bill does not provide for any remedy that would be available to these workers, should they be the victims of the employer's discrimination or retaliation. SHOULD THERE BE A LIST OF REMEDIES FOR THESE OTHER HEALTH CARE WORKERS TOO? 3. Whistleblower protection and the peer review process

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Peer review is the process by which the medical staff evaluates physicians with respect to the patient care Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 they provide in a hospital. (Bus. & Prof. C. 809, 809.5.) The peer review process is given great deference as a means of ensuring safe health care in the state. Thus, various provisions, such as immunity from monetary liability and protection from discovery under Evidence Code 1156 and 1157, were enacted to encourage participation by physicians in the peer review process and to ensure their freedom from fear of retribution for participating. Opponent California Hospital Association (CHA) contends that one of the "unintended consequences" of extending Health & Safety Code 1278.5 to members of the medical staff is the "chilling effect it would have on peer review." The CHA claims that the bill could stop a peer review process in its tracks by the simple filing of a 1278.5 action, or it could compel a peer review committee to not initiate a peer review process for fear that it could be considered a retaliatory action and subject the committee to the misdemeanor penalties of 1278.5. The CHA also points out the lack of clarity as to when a

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1278.5 action would have to be filed. [Where there is no statute of limitations specified, an action upon a statute for a penalty or forfeiture must be commenced within one year of the date the event or the action that gave rise to the cause of action occurred. (C.C.P. 340.)] The critical question, according to the principal opponents of AB 632, is what would happen to a pending peer review action, or to the evidentiary protections and
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immunity from liability that attend peer review actions, once the member of the medical staff files a 1278.5 Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 action? The hospital, CHA states, could very well be required to produce evidence in the 1278.5 action even before that evidence has been fully developed and presented in a Medical Staff fair hearing under Bus. & Prof. C. 809 et seq. The interplay between the whistleblower protection offered to physicians by this bill and the peer review process is summarized thus by opponent United Hospital Association: ?AB 632 would also add burdens to, and perhaps have a chilling effect on, the critically important medical staff peer review function within hospitals. This process is an especially important and crucial element of a hospital's responsibility. Under existing California and federal law, hospital governing boards must work closely with their medical staff's elected leaders to review the quality of care provided by physicians who hold medical staff membership and privileges at the hospital. That process is already governed by a complex and well-developed body of law, including multiple substantial protections for the physicians who are subjected to discipline by their peers. The volunteer physicians who participate in peer review are already concerned about their potential liability and the other burdens associated with their involvement in that process. Adding

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whistleblower protections and penalties will further complicate the process and may tend to chill the frankness and candor necessary to allow the peer review process to function effectively.

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SHOULD A 1278.5 ACTION BE HELD IN ABEYANCE UNTIL A PEER REVIEW PROCESS, IF INITIATED, HAS BEEN COMPLETED?

4.

Expansion of whistleblower statute in other ways In addition to expanding the coverage of whistleblower protections to medical staff and other health care workers, this bill would extend liability for a violation to the owner or operator of a health facility. Further, the bill would define "health facility" to include the "medical staff" as well as administrative personnel. According to the opponents, under existing law a hospital medical staff is required to be a self-governing body and therefore its actions cannot and should not be imputed to the hospital. To the proponents, however, these are simply clarifying amendments to existing law, and do not in any way increase the liability of a health facility for its discriminatory or retaliatory acts against a whistleblower.

5.

Other opponents' concerns; supporters' contentions

To be sure, CHA is not the only hospital group opposing AB 632. The United Hospital Association, representing 114 investor-owned California hospitals, states that while its members support the ability of their employees to raise concerns regarding patient health and safety free of retaliation, the extension of these protections to non-employee medical staff ignores the existing relationship between the hospital on the one hand and the physicians and other health care practitioners who have privileges on the hospital's medical staff, on the other. They point to current state and federal laws that already provide protections for individuals, including physicians, who voice their concerns, and are free from
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retaliation by the hospital. They note Bus. & Prof. C. 2056 (protecting physicians from retaliation for Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 advocating for medically appropriate health care for their patients) and prohibitions against retaliation under the Stark and anti-kickback statutes (31 U.S.C.

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3730(h); Gov. C.

12653(a)(b).)

Another opponent points to the intent behind passage of 1278.5: "When this [statute] was added, it was not intended nor should it apply to physicians as there is no evidence that they have been subject to retaliation. ?The current statutory protections are clearly not inadequate nor is it necessary to extend them at this time." Some supporters simply state that "[i]ndividuals should not be threatened into silence when they observe abusive practices. Failing to protect whistleblowers can result in costly lawsuits from the victims, as abusive practices are allowed to continue while those supposed to be responsible knowingly permit them." (Citizens Commission on Human Rights, Los Angeles/Hollywood Chapter letter dated 6/18/07.) Others state that if the opponents (hospital trade associations) really believe that existing law already covers physician members of a hospital medical staff, then AB 632 merely reiterates and clarifies the law so that no new burden is imposed by the bill. (California Society of Anesthesiologists, letter date 6/20/07.) Finally, a supporter states that "[e]nactment of AB 632 would help provide job security and create a climate in which health care workers feel encouraged to report problems in the workplace, instead of feeling that
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raising concerns will result in a backlash." (San Bernardino Public Employees Association letter dated Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 April 4, 2007.)

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Support: California Society of Anesthesiologists (CSA); Citizens Commission on Human Rights Los Angeles/Hollywood; American Academy of Pediatrics California; California Chapter of the American College of Emergency Physicians (CAL/ACEP); American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO; California Academy of Opthalmology; California Alliance for Retired Americans; San Bernardino Public Employees Association; California Teamsters Public Affairs Council; California Podiatric Medical Association; United Food and Commercial Workers Union, Western

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States Council; Engineers and Scientists of California, IFPTE Local 20 Opposition: United Hospital Association; Adventist Health; Loma Linda University Medical Center; Hospital Corporation of America; California Hospital Association HISTORY Source: California Medical Association (CMA) Related Pending Legislation: None Known Prior Legislation: SB 97 (Burton), Chapter 155, Statutes

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of 1999, established whistleblower protections for patients and employees of a 03/09/2009 Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed health facility. Prior Vote: Assembly Health Committee (Ayes 16, Noes 0) Assembly Appropriations Committee (Ayes 15, Noes 0) Assembly Floor (Ayes 70, Noes 0) Senate Health Committee (Ayes 11, Noes 0) **************

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AMENDED IN SENATE JULY 17, 2007 AMENDED IN SENATE JUNE 6, 2007 AMENDED IN ASSEMBLY APRIL 17, 2007
california legislature—2007–08 regular session

ASSEMBLY BILL

No. 632

Introduced by Assembly Member Salas February 21, 2007

An act to amend Section 1278.5 of the Health and Safety Code, relating to health care facilities.
legislative counsel’s digest

AB 632, as amended, Salas. Health care facilities: whistleblower protections. Existing law provides for the licensure and regulation of health care facilities, as defined, by the State Department of Public Health. Under existing law, a health facility is prohibited from retaliating or discriminating against an employee of a health facility that has presented or initiated a complaint or initiated, participated, or cooperated in an investigation or proceeding of a government entity relating to the care, services, or conditions of the facility. Existing law makes the violation of these provisions a crime and subject to the assessment of a civil penalty. This bill would prohibit a health facility, from discriminating or retaliating against any patient, employee, a member of the facility’s medical staff, or any other health care worker of the facility who because that person (1) has presented a grievance, complaint, or report to an entity or agency responsible for accrediting or evaluating the facility or to any other governmental entity; or (2) has initiated, participated,
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or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as provided. This bill would provide that an employee who has been discriminated against in employment in violation of those provisions shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, or to any remedy deemed warranted by the court pursuant to those provisions, or to any applicable provisions of statutory or common law, as specified. The bill would also entitle a health care worker who has been discriminated against, in violation of those provisions, and who prevails in court, to restitution and any legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to those provisions, or any other applicable statutory or common law. Because the bill would expand the definition of a crime, it would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. The people of the State of California do enact as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 SECTION 1. Section 1278.5 of the Health and Safety Code is amended to read: 1278.5. (a)  The Legislature finds and declares that it 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. The Legislature encourages this reporting in order to protect patients and in order to assist those government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations. (b)  (1)  No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39

staff, or any other health care worker of the health facility who because that person has done either of the following: (A)  Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. (B)  Has initiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity. (2)  No entity that owns or operates a health facility, or which owns or operates any other health facility, shall discriminate or retaliate against any person who has taken any actions pursuant to this subdivision. (3)  A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities. (c)  Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d)  (1)  There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility.

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(2)  For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any other unfavorable changes in the terms or conditions of employment or of the privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions. (e)  The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f)  Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000). (g)  An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law. A health care worker who has been discriminated against pursuant to this section shall be entitled to restitution and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or other applicable provision of statutory or common law. A member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law. (h)  The medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on pending peer review matters from the complainant in an action pursuant to this section, if the evidentiary demands from the complainant would impede the peer review process or endanger the health and safety of patients of the health facility during the peer review process.
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(h) (i)  For purposes of this section, “health facility” means any facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff. (i) (j)  This section shall not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (j) (k)  This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (k) (l)  Nothing in this section abrogates or limits any other theory of liability or remedy otherwise available at law. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

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-----------------------------------------------------------|SENATE RULES COMMITTEE | AB 632| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------

THIRD READING

Bill No: Author: Amended: Vote:

AB 632 Salas (D) 7/17/07 in Senate 21

SENATE HEALTH COMMITTEE : 11-0, 6/13/07 AYES: Kuehl, Aanestad, Alquist, Cedillo, Cox, Maldonado, Negrete McLeod, Ridley-Thomas, Steinberg, Wyland, Yee SENATE JUDICIARY COMMITTEE : 5-0, 7/10/07 AYES: Corbett, Harman, Ackerman, Kuehl, Steinberg SENATE APPROPRIATIONS COMMITTEE ASSEMBLY FLOOR : : Senate Rule 28.8

70-0, 5/3/07 - See last page for vote

SUBJECT : protections

Health care facilities: whistleblower

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SOURCE

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DIGEST : This bill establishes protections, similar to those in existing law for employees and patients, for medical staff and other health care workers who file complaints or grievances concerning a licensed health care facility, or who initiate or participate in an investigation or proceeding related to the quality of care, services, or conditions at the facility. ANALYSIS : CONTINUED

AB 632 Page 2

Existing Law 1.Prohibits a health care facility from discriminating or retaliating against a patient, employee, or any other person who presents a grievance or complaint, or has initiated or cooperated with a government agency in the investigation about the care, services, or conditions of the facility. 2.Subjects a health care facility to a civil penalty of no more than $25,000 for violations of these provisions, and provides that any person who willfully violates them is guilty of a misdemeanor punishable by a fine of no more than $20,000. 3.Provides that any type of discriminatory treatment of a patient by whom, or on whose behalf, a grievance or complaint has been submitted, within 180 days of the filing of the grievance or complaint, raises a rebuttable presumption that a retaliatory action was
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taken.

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4.Provides that any discriminatory treatment of an employee who has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding, within 120 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that a retaliatory action was taken. 5.Defines discriminatory treatment of an employee to include the discharge, demotion, suspension, any unfavorable changes in the terms or conditions of employment, or the threat of these actions. 6.Requires that employees who have been discriminated against by their employers be reinstated and reimbursed for lost wages and benefits and for the legal costs associated with pursuing their case. 7.Provides similar whistleblower protections for patients and employees of long-term care facilities and extends those protections additionally to complainants

AB 632 Page 3 generally. 8.Provides that the protections do not apply to an inmate of a correctional facility, juvenile detention facility, or local detention facility. 9.Provides that it is the public policy of the state to encourage physicians and surgeons to advocate for medically appropriate health for their patients and
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provides that no person shall terminate, retaliate against, or otherwise penalize a physician 306-2surgeon 03/09/2009 Case 1:07-cv-00026-OWW-DLB Document and Filed for that advocacy, nor shall any person prohibit, restrict, or in any way discourage a physician and surgeon from communicating to a patient information in furtherance of medically appropriate health care. For purposes of existing law, advocating for medically appropriate care is defined as the appeal of a payer's decision to deny payment for a service pursuant to the grievance or appeal procedure established by a medical group, independent practice association, preferred provider organization, foundation, hospital medical staff and governing body, or payer, or to protest a decision, policy, or practice that a physician believes impairs his or her ability to provide medically appropriate health care to his or her patients. 10.Prohibits a publicly traded company or any officer, employee, contractor, subcontractor, or agent of such company, from discriminating against or retaliating against an employee who has provided information or assisted in an investigation relating to mail, telecommunications, or shareholder fraud involving the company. Additionally, the federal Civil False Claims Act provides protections for persons who are demoted, suspended, threatened, harassed, or in any manner discriminated against for filing a complaint or providing information that a person or company has knowingly submitted false claims for reimbursement to the federal government. This bill: 1. Extends the protection from discrimination or retaliation by a health care facility against persons

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who present grievances or complaints, or who initiate an investigation regarding the facility's quality of care, services, or conditions, to members of the medical staff and other health care workers of the facility. 2. Extends the rebuttable presumption that a retaliatory action has occurred, if discriminatory treatment occurs within 120 days of the filing of the grievance or complaint, to members of the medical staff and other health care workers. 3. Provides that members of the medical staff who have suffered from such retaliation or discrimination shall be reinstated and reimbursed for lost income resulting from any change in the terms or conditions of their privileges caused by the acts of the facility or entity that owns the facility. 4. Clarifies that the prohibition on discriminatory or retaliatory action by a health facility extends to the facility's administrative personnel, employees, boards, and committees of the board, and medical staff, as well as an entity that owns or operates a health care facility. 5. Clarifies that complaints to and investigations carried out by entities or agencies responsible for accrediting or evaluating the facility are subject to health facility whistleblower protections. 6. Provides that an employee who has been discriminated against in employment in violation of those provisions shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, or to any remedy deemed warranted by the court pursuant to those provisions, or to any applicable provisions of statutory or common law, as specified. 7. Entitles a health care worker who has been discriminated against, in violation of those provisions, and who
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prevails in court, to restitution and any legal costs associated 1:07-cv-00026-OWW-DLB or to any remedy Case with pursuing the case,Document 306-2 Filed 03/09/2009 deemed warranted by the court pursuant to those provisions, or any other applicable statutory or common

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AB 632 Page 5 law. Background Complaints about the quality of care, services, or conditions of health care facilities can be submitted in a number of ways. Any person can present a complaint to the chief administrative officer of the health facility or file a complaint with Department of Health Services' (DHS) licensing and certification unit by contacting the district office where that health facility is located. A complaint may also be filed with the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), which may conduct an onsite evaluation if the complaint made about an accredited health facility raises serious concerns about patient safety or failure to comply with quality standards of care. The Joint Commission states on its website that it forbids accredited or certified health care organizations from taking retaliatory actions against employees for reporting quality of care concerns. Current state law prohibits the employment of physicians by corporations or other entities that are not controlled by physicians. For that reason, most members of the medical staff are not considered employees of a hospital and must establish contractual relationships with the hospital, either individually or through medical groups. Some exceptions are teaching hospitals, certain clinics, and
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hospitals owned and operated by a health care district.

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DHS reports that in 2006 there were a total of 30,287 complaints made about the quality of care, services, or conditions of health facilities in California. A majority of these complaints (70.25 percent) were reported by a health facility official or employee, while 29.25 percent were reported by patients and other persons. At this time, however, DHS cannot provide data distinguishing whether the health facility official who made the complaint was a physician, nurse, or other health care staff member who is not an employee. FISCAL EFFECT Local: Yes : Appropriation: No Fiscal Com.: Yes

AB 632 Page 6 SUPPORT : (Verified 8/21/07)

California Medical Association (source) American College of Emergency Physicians, California Chapter American Federation of State, County and Municipal Employees California Academy of Ophthalmology California Alliance for Retired Americans California Society of Anesthesiologists Citizens' Commission on Human Rights San Bernardino Public Employees Association OPPOSITION : (Verified 8/21/07)

California Hospital Association
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ARGUMENTS IN 1:07-cv-00026-OWW-DLB CMA, the Documentof this bill, sponsor 306-2 Case SUPPORT : Filed 03/09/2009 states that this bill is necessary to clarify existing law to protect physicians from retaliation or discrimination related to raising concerns about patient care. According to CMA, hospitals may use a variety of methods to suppress physician whistleblowers, including removing a physician from a referral list, forcing a doctor out of a hospital-owned complex, or underwriting the salary or practice expense of a competing physician. As a result, physicians must decide between reporting allegations of poor patient care and protecting their practice and livelihood from harm. CMA cites the case of Integrated Healthcare Holdings, Inc. (IHHI), the owner of Western Medical Center in Santa Ana, CA, which sued Dr. Michael Fitzgibbons after he expressed concerns that the hospital's financial troubles threatened the ability of physicians to provide quality care for their patients. According to CMA, during the lawsuit, IHHI threatened to retaliate against the medical staff at Western Medical Center and the staff at three other IHHI-owned hospitals if they participated in the investigation. CMA also cites a similar case that occurred when Tenet, one of the largest for-profit hospital chains, silenced physicians at a Redding, CA hospital who knew about unnecessary open-heart surgeries and Medicare billing fraud occurring at the hospital.

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AB 632 Page 7

ARGUMENTS IN OPPOSITION : The California Hospital Association (CHA) believes there are already sufficient whistleblower protections in existing state and federal law
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for physicians and surgeons. In addition, CHA states that there is Case 1:07-cv-00026-OWW-DLB no evidence that physicians Document 306-2 have been subject to 03/09/2009 Filed retaliation or that current statutory protections are inadequate. CHA further argues that the statute that this bill seeks to amend was designed to protect patients and employees from retaliation for raising quality of care concerns, and was not designed to protect physicians and surgeons. CHA argues that the relationship between a hospital and physicians and surgeons who have staff privileges at the hospital differs significantly from the hospital's relationship with its employees. Among other things, the relationship between hospitals and physicians is governed by medical staff by-laws and hospital peer review processes. In addition, physicians and surgeons already have protections under state law for instances in which they advocate for medically appropriate care, and are also protected under federal statutes for reporting instances of fraud, overbilling, and violations of Stark and anti-kickback statutes. Finally, CHA believes that this bill needs further clarification to ensure that hospitals retain the right to take disciplinary action with regard to disruptive behavior by employees, patients and physicians, regardless of their protected activity. ASSEMBLY FLOOR : AYES: Adams, Aghazarian, Anderson, Bass, Beall, Berg, Berryhill, Blakeslee, Brownley, Caballero, Charles Calderon, Carter, Cook, Coto, Davis, De La Torre, De Leon, DeSaulnier, DeVore, Duvall, Dymally, Emmerson, Eng, Evans, Feuer, Fuller, Gaines, Galgiani, Garcia, Garrick, Hancock, Hayashi, Hernandez, Horton, Houston, Huffman, Jeffries, Jones, Karnette, Keene, Krekorian, La Malfa, Laird, Leno, Levine, Lieber, Lieu, Ma, Maze, Mendoza, Mullin, Nakanishi, Niello, Parra, Portantino, Price, Richardson, Salas, Saldana, Silva, Smyth, Solorio, Strickland, Swanson, Torrico, Tran, Villines, Walters, Wolk, Nunez NO VOTE RECORDED: Arambula, Benoit, Huff, Nava, Plescia, Sharon Runner, Ruskin, Soto, Spitzer, Vacancy

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AB 632 Page 8

CTW:do

8/21/07

Senate Floor Analyses SUPPORT/OPPOSITION: **** END SEE ABOVE

****

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AMENDED IN SENATE SEPTEMBER 5, 2007 AMENDED IN SENATE JULY 17, 2007 AMENDED IN SENATE JUNE 6, 2007 AMENDED IN ASSEMBLY APRIL 17, 2007
california legislature—2007–08 regular session

ASSEMBLY BILL

No. 632

Introduced by Assembly Member Salas February 21, 2007

An act to amend Section 1278.5 of the Health and Safety Code, relating to health care facilities.
legislative counsel’s digest

AB 632, as amended, Salas. Health care facilities: whistleblower protections. Existing law provides for the licensure and regulation of health care facilities, as defined, by the State Department of Public Health. Under existing law, a health facility is prohibited from retaliating or discriminating against an employee of a health facility that has presented or initiated a complaint or initiated, participated, or cooperated in an investigation or proceeding of a government entity relating to the care, services, or conditions of the facility. Existing law makes the violation of these provisions a crime and subject to the assessment of a civil penalty. This bill would prohibit a health facility from discriminating or retaliating against any patient, employee, a member of the facility’s medical staff, or any other health care worker of the facility because that person (1) has presented a grievance, complaint, or report to an

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entity or agency responsible for accrediting or evaluating the facility or to any other governmental entity; or (2) has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as provided. This bill would provide that an employee who has been discriminated against in employment in violation of those provisions shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, or to any remedy deemed warranted by the court pursuant to those provisions, or to any applicable provisions of statutory or common law, as specified. The bill would also entitle a health care worker who has been discriminated against, in violation of those provisions, and who prevails in court, to restitution reimbursement for lost income and any legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to those provisions, or any other applicable statutory or common law. Because the bill would expand the definition of a crime, it would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. The people of the State of California do enact as follows: 1 2 3 4 5 6 7 8 9 10 11 12 SECTION 1. Section 1278.5 of the Health and Safety Code is amended to read: 1278.5. (a)  The Legislature finds and declares that it 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. The Legislature encourages this reporting in order to protect patients and in order to assist those accreditation and government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing

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provisions in state and federal law relating to employee and employer relations. (b)  (1)  No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following: (A)  Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. (B)  Has initiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity. (2)  No entity that owns or operates a health facility, or which owns or operates any other health facility, shall discriminate or retaliate against any person who because that person has taken any actions pursuant to this subdivision. (3)  A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities. (c)  Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d)  (1)  There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the
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discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility. (2)  For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any other unfavorable changes in the terms or conditions of employment or of the privileges of the employee, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions. (e)  The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f)  Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000). (g)  An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law. A health care worker who has been discriminated against pursuant to this section shall be entitled to restitution reimbursement for lost income and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or other applicable provision of statutory or common law. A member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.
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(h)  The medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on a pending peer review matters hearing from the complainant in member of the medical staff who has filed an action pursuant to this section, if the evidentiary demands from the complainant would impede the peer review process or endanger the health and safety of patients of the health facility during the peer review process. Prior to granting an injunction, the court shall conduct an in camera review of the evidence sought to be discovered to determine if a peer review hearing, as authorized in Section 805 and Sections 809 to 809.5, inclusive, of the Business and Professions Code, would be impeded. If it is determined that the peer review hearing will be impeded, the injunction shall be granted until the peer review hearing is completed. Nothing in this section shall preclude the court, on motion of its own or by a party, from issuing an injunction or other order under this subdivision in the interest of justice for the duration of the peer review process to protect the person from irreparable harm. (i)  For purposes of this section, “health facility” means any facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff. (j)  This section shall not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (k)  This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (l)  Nothing in this section shall be construed to limit the ability of the medical staff to carry out its legitimate peer review activities in accordance with Sections 809 to 809.5, inclusive, of the Business and Professions Code. (l)   (m)  Nothing in this section abrogates or limits any other theory of liability or remedy otherwise available at law.

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SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

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-----------------------------------------------------------|SENATE RULES COMMITTEE | AB 632| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------

THIRD READING

Bill No: Author: Amended: Vote:

AB 632 Salas (D) 9/5/07 in Senate 21

SENATE HEALTH COMMITTEE : 11-0, 6/13/07 AYES: Kuehl, Aanestad, Alquist, Cedillo, Cox, Maldonado, Negrete McLeod, Ridley-Thomas, Steinberg, Wyland, Yee SENATE JUDICIARY COMMITTEE : 5-0, 7/10/07 AYES: Corbett, Harman, Ackerman, Kuehl, Steinberg SENATE APPROPRIATIONS COMMITTEE ASSEMBLY FLOOR : : Senate Rule 28.8

70-0, 5/3/07 - See last page for vote

SUBJECT : protections

Health care facilities: whistleblower

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SOURCE

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California Medical Association

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DIGEST : This bill establishes protections, similar to those in existing law for employees and patients, for medical staff and other health care workers who file complaints or grievances concerning a licensed health care facility, or who initiate or participate in an investigation or proceeding related to the quality of care, services, or conditions at the facility. Senate Floor Amendments of 9/5/07 further clarify language CONTINUED

AB 632 Page 2 of the bill and deal with the effect of a whistleblower complaint in the context of peer review proceedings. ANALYSIS :

Existing Law 1.Prohibits a health care facility from discriminating or retaliating against a patient, employee, or any other person who presents a grievance or complaint, or has initiated or cooperated with a government agency in the investigation about the care, services, or conditions of the facility. 2.Subjects a health care facility to a civil penalty of no more than $25,000 for violations of these provisions, and provides that any person who willfully violates them is guilty of a misdemeanor punishable by a fine of no more than $20,000. 3.Provides that any type of discriminatory treatment of a
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patient by whom, or on whose behalf, a grievance or complaint has been submitted, within 180 days of the Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 filing of the grievance or complaint, raises a rebuttable presumption that a retaliatory action was taken. 4.Provides that any discriminatory treatment of an employee who has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding, within 120 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that a retaliatory action was taken. 5.Defines discriminatory treatment of an employee to include the discharge, demotion, suspension, any unfavorable changes in the terms or conditions of employment, or the threat of these actions. 6.Requires that employees who have been discriminated against by their employers be reinstated and reimbursed for lost wages and benefits and for the legal costs associated with pursuing their case.

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7.Provides similar whistleblower protections for patients and employees of long-term care facilities and extends those protections additionally to complainants generally. 8.Provides that the protections do not apply to an inmate of a correctional facility, juvenile detention facility, or local detention facility.
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9.Provides that it is the public policy of the state Filed 03/09/2009 to Case 1:07-cv-00026-OWW-DLB Document 306-2 encourage physicians and surgeons to advocate for medically appropriate health for their patients and provides that no person shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that advocacy, nor shall any person prohibit, restrict, or in any way discourage a physician and surgeon from communicating to a patient information in furtherance of medically appropriate health care. For purposes of existing law, advocating for medically appropriate care is defined as the appeal of a payer's decision to deny payment for a service pursuant to the grievance or appeal procedure established by a medical group, independent practice association, preferred provider organization, foundation, hospital medical staff and governing body, or payer, or to protest a decision, policy, or practice that a physician believes impairs his or her ability to provide medically appropriate health care to his or her patients. 10.Prohibits a publicly traded company or any officer, employee, contractor, subcontractor, or agent of such company, from discriminating against or retaliating against an employee who has provided information or assisted in an investigation relating to mail, telecommunications, or shareholder fraud involving the company. Additionally, the federal Civil False Claims Act provides protections for persons who are demoted, suspended, threatened, harassed, or in any manner discriminated against for filing a complaint or providing information that a person or company has knowingly submitted false claims for reimbursement to the federal government.

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This bill: 1.Extends the protection from discrimination or retaliation by a health care facility against persons who present grievances or complaints, or who initiate an investigation regarding the facility's quality of care, services, or conditions, to members of the medical staff and other health care workers of the facility. 2.Extends the rebuttable presumption that a retaliatory action has occurred, if discriminatory treatment occurs within 120 days of the filing of the grievance or complaint, to members of the medical staff and other health care workers. 3.Provides that members of the medical staff who have suffered from such retaliation or discrimination shall be reinstated and reimbursed for lost income resulting from any change in the terms or conditions of their privileges caused by the acts of the facility or entity that owns the facility. 4.Defines "discriminating treatment" for these purposes to include, but not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment or privileges of the employee, or the threat of any of those actions. 5.Clarifies that the prohibition on discriminatory or retaliatory action by a health facility extends to the facility's administrative personnel, employees, boards, and committees of the board, and medical staff, as well as an entity that owns or operates a health care facility. 6.Clarifies that complaints to and investigations carried out by entities or agencies responsible for accrediting or evaluating the facility are subject to health facility whistleblower protections.
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Case 1:07-cv-00026-OWW-DLB Filed 03/09/2009 7.Provides that an employee who has Document 306-2 been discriminated against in employment in violation of those provisions shall be entitled to reinstatement, reimbursement for

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AB 632 Page 5 lost wages and work benefits caused by the acts of the employer, or to any remedy deemed warranted by the court pursuant to those provisions, or to any applicable provisions of statutory or common law, as specified. 8.Entitles a health care worker who has been discriminated against, in violation of those provisions, and who prevails in court, to restitution and any legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to those provisions, or any other applicable statutory or common law. 9.Provides that the medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on a pending peer review hearing from the member of the medical staff who has filed an action pursuant to this section, if the evidentiary demands from the complainant would impede the peer review process or endanger the health and safety of patients of the health facility during the peer review process. Prior to granting an injunction, the court shall conduct an in camera review of the evidence sought to be discovered to determine if a peer review hearing, as authorized in Section 805 and Section 809 to 809.5, inclusive, of the Business and Profession Code, would be impeded. If it is determined that the peer review
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hearing will be impeded, the injunction shall be granted until Case peer review hearing is completed. Nothing in the 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 this section shall preclude the court, on motion of its own or by a party, from issuing an injunction or other order under this subdivision in the interest of the justice for the duration of the peer review process to protect the person from irreparable harm. 10.The bill provides nothing in this bill shall be construed to limit the ability of the medical staff to carry out its legitimate peer review activities in accordance with Sections 809 to 809.5, inclusive, of the Business and Profession Code. Background

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AB 632 Page 6 Complaints about the quality of care, services, or conditions of health care facilities can be submitted in a number of ways. Any person can present a complaint to the chief administrative officer of the health facility or file a complaint with Department of Health Services' (DHS) licensing and certification unit by contacting the district office where that health facility is located. A complaint may also be filed with the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), which may conduct an onsite evaluation if the complaint made about an accredited health facility raises serious concerns about patient safety or failure to comply with quality standards of care. The Joint Commission states on its website that it forbids accredited or certified health care organizations from taking retaliatory actions against employees for reporting quality of care concerns.
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Current state 1:07-cv-00026-OWW-DLB Case law prohibits the employment of 306-2 Document physicians by Filed 03/09/2009 corporations or other entities that are not controlled by physicians. For that reason, most members of the medical staff are not considered employees of a hospital and must establish contractual relationships with the hospital, either individually or through medical groups. Some exceptions are teaching hospitals, certain clinics, and hospitals owned and operated by a health care district. DHS reports that in 2006 there were a total of 30,287 complaints made about the quality of care, services, or conditions of health facilities in California. A majority of these complaints (70.25 percent) were reported by a health facility official or employee, while 29.25 percent were reported by patients and other persons. At this time, however, DHS cannot provide data distinguishing whether the health facility official who made the complaint was a physician, nurse, or other health care staff member who is not an employee. FISCAL EFFECT Local: Yes SUPPORT : : Appropriation: No Fiscal Com.: Yes

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(Verified

9/6/07)

California Medical Association (source) American College of Emergency Physicians, California

AB 632 Page 7 Chapter American Federation of State, County and Municipal Employees California Academy of Ophthalmology
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California Alliance for Retired Americans California Society of Anesthesiologists Case 1:07-cv-00026-OWW-DLB Document 306-2 Citizens' Commission on Human Rights San Bernardino Public Employees Association OPPOSITION : (Verified 9/6/07)

Filed 03/09/2009

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California Hospital Association ARGUMENTS IN SUPPORT : CMA, the sponsor of this bill, states that this bill is necessary to clarify existing law to protect physicians from retaliation or discrimination related to raising concerns about patient care. According to CMA, hospitals may use a variety of methods to suppress physician whistleblowers, including removing a physician from a referral list, forcing a doctor out of a hospital-owned complex, or underwriting the salary or practice expense of a competing physician. As a result, physicians must decide between reporting allegations of poor patient care and protecting their practice and livelihood from harm. CMA cites the case of Integrated Healthcare Holdings, Inc. (IHHI), the owner of Western Medical Center in Santa Ana, CA, which sued Dr. Michael Fitzgibbons after he expressed concerns that the hospital's financial troubles threatened the ability of physicians to provide quality care for their patients. According to CMA, during the lawsuit, IHHI threatened to retaliate against the medical staff at Western Medical Center and the staff at three other IHHI-owned hospitals if they participated in the investigation. CMA also cites a similar case that occurred when Tenet, one of the largest for-profit hospital chains, silenced physicians at a Redding, CA hospital who knew about unnecessary open-heart surgeries and Medicare billing fraud occurring at the hospital. ARGUMENTS IN OPPOSITION : The California Hospital Association (CHA) believes there are already sufficient whistleblower protections in existing state and federal law

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AB 632 Page 8 for physicians and surgeons. In addition, CHA states that there is no evidence that physicians have been subject to retaliation or that current statutory protections are inadequate. CHA further argues that the statute that this bill seeks to amend was designed to protect patients and employees from retaliation for raising quality of care concerns, and was not designed to protect physicians and surgeons. CHA argues that the relationship between a hospital and physicians and surgeons who have staff privileges at the hospital differs significantly from the hospital's relationship with its employees. Among other things, the relationship between hospitals and physicians is governed by medical staff by-laws and hospital peer review processes. In addition, physicians and surgeons already have protections under state law for instances in which they advocate for medically appropriate care, and are also protected under federal statutes for reporting instances of fraud, over billing, and violations of Stark and anti-kickback statutes. Finally, CHA believes that this bill needs further clarification to ensure that hospitals retain the right to take disciplinary action with regard to disruptive behavior by employees, patients and physicians, regardless of their protected activity. ASSEMBLY FLOOR : AYES: Adams, Aghazarian, Anderson, Bass, Beall, Berg, Berryhill, Blakeslee, Brownley, Caballero, Charles Calderon, Carter, Cook, Coto, Davis, De La Torre, De Leon, DeSaulnier, DeVore, Duvall, Dymally, Emmerson, Eng, Evans, Feuer, Fuller, Gaines, Galgiani, Garcia, Garrick, Hancock, Hayashi, Hernandez, Horton, Houston, Huffman, Jeffries, Jones, Karnette, Keene, Krekorian, La Malfa, Laird, Leno, Levine, Lieber, Lieu, Ma, Maze, Mendoza, Mullin, Nakanishi, Niello, Parra, Portantino, Price, Richardson, Salas, Saldana, Silva, Smyth, Solorio,
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Strickland, Swanson, Torrico, Tran, Villines, Walters, Wolk, Nunez 1:07-cv-00026-OWW-DLB Case Document 306-2 Filed 03/09/2009 NO VOTE RECORDED: Arambula, Benoit, Huff, Nava, Plescia, Sharon Runner, Ruskin, Soto, Spitzer, Vacancy

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RJG:do

9/6/07

Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE

AB 632 Page 9

****

END

****

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UNOFFICIAL BALLOT MEASURE: AB 632 AUTHOR: Salas TOPIC: Health care facilities: whistleblower protect DATE: 09/10/2007 LOCATION: SEN. FLOOR MOTION: Assembly 3rd Reading AB632 Salas By Aanestad (AYES 38. NOES 1.) (PASS)

AYES **** Aanestad Ackerman Alquist Ashburn Battin Calderon Cedillo Cogdill Corbett Correa Cox Denham Ducheny Dutton Florez Harman Kehoe Kuehl Lowenthal Machado Maldonado Margett McClintock Migden Negrete McLeod Oropeza Padilla Ridley-Thomas Romero Runner Scott Simitian Steinberg Torlakson Vincent Wiggins Wyland Yee

NOES **** Hollingsworth

ABSENT, ABSTAINING, OR NOT VOTING ********************************* Perata

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UNOFFICIAL BALLOT MEASURE: AB 632 AUTHOR: Salas TOPIC: Health care facilities: whistleblower protect DATE: 09/11/2007 LOCATION: ASM. FLOOR MOTION: AB 632 Salas Concurrence in Senate Amendments (AYES 62. NOES 15.) (PASS)

AYES **** Aghazarian Arambula Bass Beall Benoit Berg Berryhill Blakeslee Brownley Caballero Charles Calderon Cook Coto Davis De La Torre De Leon DeSaulnier Dymally Emmerson Eng Evans Feuer Fuentes Fuller Gaines Galgiani Garcia Garrick Hancock Hayashi Hernandez Horton Huffman Jones Karnette Keene Krekorian Laird Leno Levine Lieber Lieu Ma Mendoza Mullin Nakanishi Nava Parra Portantino Price Ruskin Salas Saldana Solorio Soto Spitzer Swanson Torrico Tran Wolk Nunez

Carter

NOES **** Adams Houston Maze Smyth Anderson DeVore Duvall Huff Jeffries La Malfa Niello Plescia Silva Villines Walters

ABSENT, ABSTAINING, OR NOT VOTING *********************************
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Sharon Runner

Strickland

Vacancy

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BILL ANALYSIS

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AB 632 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 632 (Salas) As Amended September 5, 2007 Majority vote ----------------------------------------------------------------|ASSEMBLY: |70-0 |(May 3, 2007) |SENATE: |38-1 |(September 10, | | | | | | |2007) | ----------------------------------------------------------------Original Committee Reference: HEALTH

SUMMARY : Expands to members of health facility medical staffs, whistleblower protections currently provided to patients, employees, and others in health facility settings that prohibit owners and operators of any health facility from retaliating because a person from one of these groups has notified government entities of suspected unsafe patient care and conditions. The Senate amendments :

1)Revise the new category of medical professionals to whom whistleblower protections are extended, from physicians and surgeons to members of the medical staff. Revise the definition of members of health facility medical staffs, to provide equivalent whistleblower protection to a doctor that is currently available to an employee or patient of a hospital facility and to other health care workers. 2)Eliminate the application of civil penalties to health facility affiliates. 3)Expand the definition of discriminatory treatment of an employee, member of the medical staff, of any other health
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care worker to also include any unfavorable changes in, or breach Case the terms or conditions Document 306-2 of, 1:07-cv-00026-OWW-DLB of a contract. Filed 03/09/2009 4)Specify that, for damages to any employee, health care worker, or member of the medical staff who has been discriminated or retaliated against, he or she is entitled to any remedy deemed warranted by the court in lieu of reinstatement, reimbursement for lost wages and work benefits, and legal costs. 5)Make technical changes in the wording of the list of

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AB 632 Page 2 financially related circumstances to be taken under consideration for remedy when there is a determination that discrimination has occurred. 6)Require that a health care worker determined to have been discriminated against is entitled to reimbursement for lost income rather than restitution. 7)Authorize a member of the medical staff to petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on pending peer review matters if the physician has filed a whistleblower complaint or if the evidentiary demands would impede the peer review process or endanger patient health and safety. 8)Require that an in camera review of evidentiary demands be held to determine if the evidentiary demands will impede the peer review process. EXISTING LAW prohibits any health facility from discriminating or retaliating in any manner against any patient or employee of any health facility because that patient or employee, or any
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other person, has presented any grievance or complaint, or has initiated or cooperated in any investigation or proceeding of Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 any governmental entity, relating to the care, services, or conditions of that facility. "Health facility" does not include long-term care facility for these purposes. Any health facility that violates such prohibitions may be subject to a civil penalty of not more than $25,000, and any person associated with the facility, as specified, who willfully violates such prohibitions, may be subject to a misdemeanor punishable by a fine of not more than $20,000. AS PASSED BY THE ASSEMBLY , this bill extended to physicians and surgeons whistleblower protections that currently apply to patients and employees of health facilities. Specifically, this bill: 1)Prohibited a health facility or its affiliate from discriminating or retaliating in any manner against a physician and surgeon on the medical staff of the health facility or its affiliate because the physician and surgeon has presented a grievance or complaint, or has initiated, participated, or cooperated in an investigation or proceeding of any governmental entity, relating to the care, services, or

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AB 632 Page 3 conditions of the facility or its affiliate. 2)Required that any discriminatory treatment of a physician and surgeon within 120 days of the filing of the grievance or complaint raises a rebuttable presumption that the action was taken by the health facility in retaliation, if the health facility had knowledge of the physician's initiation, participation, or cooperation. Specifies that "discriminatory treatment of a physician or surgeon" includes discharge,
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demotion, suspension, any other unfavorable changes in the terms or conditions of the privileges of the physician and Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 surgeon at the health facility or its affiliate, or the threat of any of these actions. 3)Entitled a physician and surgeon who has been discriminated against pursuant to this bill, to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or its affiliate, and the legal costs associated with pursuing the case. FISCAL EFFECT : According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS : The Senate amendments clarify that this bill applies to physicians and surgeons who are on the medical staff of a health facility. The Senate Judiciary Committee analysis notes that using the phrase "members of the medical staff" is consistent with language in the Business and Professions Code. According to the Senate Judiciary Committee, the Senate amendment in #3) above was added by their committee to ensure that the health facility peer review committee continues to operate as it has under current law. As stated in the Senate Judiciary Committee analysis: Peer review is a process by which the medical staff evaluates physicians with respect to the patient care they provide.?Thus, the various provisions, such as immunity from monetary liability and protection from discovery?were enacted to encourage participation by physicians in the peer review process and to ensure their freedom from fear of retribution for participation. The Senate amendments allowing a physician to petition the court

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are based on the Senate Judiciary Committee's judgment that a judge would be the party best suited to determine what specific items among those actions sought by the health facility would impact the peer review committee and or patient health and safety. Hospitals oppose this bill, as amended, because they argue it will have a chilling affect on the peer review process. In addition, they argue this bill is not necessary to protect physicians against retaliation and discrimination because existing law provides adequate protection. This bill is supported by physician organizations that see a need for clarifying existing law to protect physicians from retaliation or discrimination, which they argue is expressed in a variety of methods, including termination of a physician or surgeon's hospital privileges. According to the Senate Judiciary Committee, the amendments made to this bill on September 5, 2007, were taken to deal with some objections made by the hospitals regarding the impact of the bill on the peer review. This analysis also states: This bill would provide equivalent whistleblower protection to a doctor that is currently available to an employee or patient of a hospital facility and to other health care workers. The amendments would provide for an in camera hearing of evidentiary requests by a whistleblower complainant so that a court may determine whether or not the evidentiary demands would impede a peer review proceeding. The amendments would further clarify that the bill would not be construed to limit the ability of the medical staff to carry out its legitimate peer review activities.

Analysis Prepared by 319-2097

:

M. Anne Powell / HEALTH / (916)

FN: 0003293
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Assembly Bill No. 632

Passed the Assembly September 11, 2007

Chief Clerk of the Assembly

Passed the Senate September 10, 2007

Secretary of the Senate

This bill was received by the Governor this of , 2007, at o’clock m.

day

Private Secretary of the Governor

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An act to amend Section 1278.5 of the Health and Safety Code, relating to health care facilities.
legislative counsel’s digest

AB 632, Salas. Health care facilities: whistleblower protections. Existing law provides for the licensure and regulation of health care facilities, as defined, by the State Department of Public Health. Under existing law, a health facility is prohibited from retaliating or discriminating against an employee of a health facility that has presented or initiated a complaint or initiated, participated, or cooperated in an investigation or proceeding of a government entity relating to the care, services, or conditions of the facility. Existing law makes the violation of these provisions a crime and subject to the assessment of a civil penalty. This bill would prohibit a health facility from discriminating or retaliating against any patient, employee, a member of the facility’s medical staff, or any other health care worker of the facility because that person (1) has presented a grievance, complaint, or report to an entity or agency responsible for accrediting or evaluating the facility or to any other governmental entity; or (2) has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as provided. This bill would provide that an employee who has been discriminated against in employment in violation of those provisions shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, or to any remedy deemed warranted by the court pursuant to those provisions, or to any applicable provisions of statutory or common law, as specified. The bill would also entitle a health care worker who has been discriminated against, in violation of those provisions, and who prevails in court, to reimbursement for lost income and any legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to those provisions, or any other applicable statutory or common law.

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Because the bill would expand the definition of a crime, it would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. The people of the State of California do enact as follows: SECTION 1. Section 1278.5 of the Health and Safety Code is amended to read: 1278.5. (a)  The Legislature finds and declares that it 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. The Legislature encourages this reporting in order to protect patients and in order to assist those accreditation and government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations. (b)  (1)  No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following: (A)  Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. (B)  Has initiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity. (2)  No entity that owns or operates a health facility, or which owns or operates any other health facility, shall discriminate or
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retaliate against any person because that person has taken any actions pursuant to this subdivision. (3)  A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities. (c)  Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d)  (1)  There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility. (2)  For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions. (e)  The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f)  Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000).
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(g)  An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law. A health care worker who has been discriminated against pursuant to this section shall be entitled to reimbursement for lost income and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or other applicable provision of statutory or common law. A member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law. (h)  The medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on a pending peer review hearing from the member of the medical staff who has filed an action pursuant to this section, if the evidentiary demands from the complainant would impede the peer review process or endanger the health and safety of patients of the health facility during the peer review process. Prior to granting an injunction, the court shall conduct an in camera review of the evidence sought to be discovered to determine if a peer review hearing, as authorized in Section 805 and Sections 809 to 809.5, inclusive, of the Business and Professions Code, would be impeded. If it is determined that the peer review hearing will be impeded, the injunction shall be granted until the peer review hearing is completed. Nothing in this section shall preclude the court, on motion of its own or by a party, from issuing an injunction or other order under this subdivision in the interest of justice for the duration of the peer review process to protect the person from irreparable harm.

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(i)  For purposes of this section, “health facility” means any facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff. (j)  This section shall not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (k)  This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (l)  Nothing in this section shall be construed to limit the ability of the medical staff to carry out its legitimate peer review activities in accordance with Sections 809 to 809.5, inclusive, of the Business and Professions Code. (m)  Nothing in this section abrogates or limits any other theory of liability or remedy otherwise available at law. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

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Approved

, 2007

Governor

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Assembly Bill No. 632 CHAPTER 683 An act to amend Section 1278.5 of the Health and Safety Code, relating to health care facilities.
[Approved by Governor October 14, 2007. Filed with Secretary of State October 14, 2007.]

legislative counsel’s digest

AB 632, Salas. Health care facilities: whistleblower protections. Existing law provides for the licensure and regulation of health care facilities, as defined, by the State Department of Public Health. Under existing law, a health facility is prohibited from retaliating or discriminating against an employee of a health facility that has presented or initiated a complaint or initiated, participated, or cooperated in an investigation or proceeding of a government entity relating to the care, services, or conditions of the facility. Existing law makes the violation of these provisions a crime and subject to the assessment of a civil penalty. This bill would prohibit a health facility from discriminating or retaliating against any patient, employee, a member of the facility’s medical staff, or any other health care worker of the facility because that person (1) has presented a grievance, complaint, or report to an entity or agency responsible for accrediting or evaluating the facility or to any other governmental entity; or (2) has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as provided. This bill would provide that an employee who has been discriminated against in employment in violation of those provisions shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, or to any remedy deemed warranted by the court pursuant to those provisions, or to any applicable provisions of statutory or common law, as specified. The bill would also entitle a health care worker who has been discriminated against, in violation of those provisions, and who prevails in court, to reimbursement for lost income and any legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to those provisions, or any other applicable statutory or common law. Because the bill would expand the definition of a crime, it would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason. The people of the State of California do enact as follows: SECTION 1. Section 1278.5 of the Health and Safety Code is amended to read: 1278.5. (a)  The Legislature finds and declares that it 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. The Legislature encourages this reporting in order to protect patients and in order to assist those accreditation and government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations. (b)  (1)  No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following: (A)  Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. (B)  Has initiated, participated, or cooperated in an investigation or administrative proceeding related to, the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity. (2)  No entity that owns or operates a health facility, or which owns or operates any other health facility, shall discriminate or retaliate against any person because that person has taken any actions pursuant to this subdivision. (3)  A violation of this section shall be subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). The civil penalty shall be assessed and recovered through the same administrative process set forth in Chapter 2.4 (commencing with Section 1417) for long-term health care facilities. (c)  Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d)  (1)  There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation

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against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility. (2)  For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions. (e)  The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f)  Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000). (g)  An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law. A health care worker who has been discriminated against pursuant to this section shall be entitled to reimbursement for lost income and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or other applicable provision of statutory or common law. A member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law. (h)  The medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on a pending peer review hearing from the member of the medical staff who has filed an action pursuant to this section, if the evidentiary demands from the complainant would impede the peer review process or endanger the health and safety of patients of the health facility during the peer review process. Prior to granting an injunction, the court shall conduct an in camera review of the evidence sought to be discovered to determine if a peer review hearing, as authorized in Section 805 and

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Sections 809 to 809.5, inclusive, of the Business and Professions Code, would be impeded. If it is determined that the peer review hearing will be impeded, the injunction shall be granted until the peer review hearing is completed. Nothing in this section shall preclude the court, on motion of its own or by a party, from issuing an injunction or other order under this subdivision in the interest of justice for the duration of the peer review process to protect the person from irreparable harm. (i)  For purposes of this section, “health facility” means any facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff. (j)  This section shall not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (k)  This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (l)  Nothing in this section shall be construed to limit the ability of the medical staff to carry out its legitimate peer review activities in accordance with Sections 809 to 809.5, inclusive, of the Business and Professions Code. (m)  Nothing in this section abrogates or limits any other theory of liability or remedy otherwise available at law. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

O
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EXHIBIT 6: Defendants-Appellee’s Answering Brief in Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105 (9th Cir. 2008)

USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF SUPPLEMENTAL BRIEF PURSUANT TO COURT’S ORDER OF MARCH 2, 2009 8

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LEXSEE 2006 U.S. 9TH CIR. BRIEFS 55981 View U.S. Circuit Court Opinion View Original Source Image of This Document MARIE BERNADETTE MENDIONDO, Plaintiff and Appellant, vs. CENTINELA HOSPITAL MEDICAL CENTER, et al., Defendants and Appellees. Case No. 06-55981 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 2006 U.S. 9th Cir. Briefs 55981; 2007 U.S. 9th Cir. Briefs LEXIS 46 February 2, 2007 Appeal from the United States District Court for the Central District Of California, Hon. Terry J. Hatter, Jr. Case No. CV 03-5757 TJH. Initial Brief: Appellee-Respondent VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. Circuit Court: Brief(s) COUNSEL: [**1] Susan S. Azad (Bar No. 145471), Jennifer Blair (Bar No. 222125), LATHAM & WATKINS LLP, 633 West Fifth Street, Suite 4000, Los Angeles, CA 90071-2007, (213) 485-1234 (phone), (213) 891-8763 (fax). Attorneys for Defendants and Appellees, Tenet Healthcare Corporation and Centinela Hospital Medical Center. DISCLOSURES: CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Defendants and Appellees Tenet Healthcare Corporation ("Tenet") and Centinela Hospital Medical Center, by and through their undersigned counsel, certify as follows: Tenet was the parent corporation of Centinela Hospital Medical Center at the time of the events at issue in this appeal. Centinela Hospital Medical Center has since been sold to third-party Centinela Freeman HealthSystem, which, to the best of Tenet's knowledge, owns and operates the hospital today. Another Tenet entity, CVHS Hospital Corporation, retained liability relating to this lawsuit as part of the sale. Dated: February 1, 2007 Respectfully submitted, LATHAM & WATKINS LLP Susan S. Azad

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Jennifer Blair By: /s/ [Signature] Susan S. [**2] Azad Defendants and Appellees Tenet Healthcare Corporation and Centinela Hospital Medical Center TITLE: ANSWERING BRIEF OF APPELLEES TENET HEALTHCARE CORPORATION AND CENTINELA HOSPITAL MEDICAL CENTER TEXT: I. STATEMENT OF JURISDICTION Defendants and Appellees Centinela Hospital Medical Center ("CHMC") and Tenet Healthcare Corporation ("Tenet") (collectively, the "Hospital") concur in Plaintiff and Appellant Marie Bernadette Mendiondo's ("Mendiondo") jurisdictional statement. II. STATEMENT OF THE CASE Mendiondo and two other relators (whose claims have since been abandoned or dismissed) filed a qui tam complaint (the "Complaint") premised on alleged violations of the federal and California False Claims Act (the "FCA"). After the United States declined to intervene, Mendiondo voluntarily dismissed her substantive FCA claims with prejudice. Mendiondo, the sole plaintiff left in the case, is thus left only with claims for wrongful termination under the FCA, the California Whistleblower Protection Act, and public policy. In the Complaint, Mendiondo alleges she complained to her supervisors about wrongful conduct by the Hospital. As a result, Mendiondo [**3] claims she was fired by the Hospital. [*2] Mendiondo cannot maintain her FCA wrongful termination claims. In order to plead FCA retaliation, Mendiondo must plead facts demonstrating she was terminated because she was either investigating or pursuing a false claims action, which was filed or to be filed. This means Mendiondo must be able to plead facts demonstrating four things: First, that there were colorable false claims to begin with, involving actionable payments by the government; second, that Mendiondo was investigating or pursuing a false claims action based on these payments; third, that the Hospital knew Mendiondo was investigating or pursuing such claims; and fourth, that Mendiondo was fired because of it. Mendiondo cannot make these factual showings given what she has already pleaded. First, none of the claims alleged in the Complaint demonstrate that colorable false claims exist or that Mendiondo knew about them. Mendiondo alleges she signed false medical director timesheets and inventoried defective defibrillators. None of these activities involve claims for payment by the government. There are no allegations that Mendiondo knew about or investigated any false [**4] claims for payment made to the government. [*3] Nor does Mendiondo allege facts that demonstrate the Hospital knew about any such investigation into any such hypothetical false claims. More fundamentally, the facts Mendiondo alleges, taken in the light most favorable to Mendiondo, demonstrate she was fired because she complained to her supervisors about, and refused to engage in, cost-cutting measures she felt were illegal and might affect patient care. Mendiondo has alleged the reason she was fired -because she complained and refused to do what her employer told her to do. The district court thus properly dismissed her FCA retaliation claims. Having properly dismissed Mendiondo's FCA claims, the district court was within its discretion to dismiss Mendiondo's

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supplemental state law claims as well. III. STATEMENT OF FACTS A. The Allegations of the Complaint The Complaint references allegations by three purported relators, two of whom chose not to pursue the action any further and are thus not involved in this appeal. See Excerpts of Record ("ER") 2, at P 4; Appellant's Opening Brief ("AOB"), at 11 n.3. In addition, all of the FCA allegations (claims 1 [**5] and 2) have been dismissed with [*4] prejudice. See ER 33-37. Thus, the sole remaining claims in this case are the wrongful termination claims asserted by Mendiondo against CHMC and its parent corporation, Tenet. See generally AOB. B. Mendiondo's Employment by the Hospital Mendiondo alleges that she is a registered nurse who "was recruited by Apex Cardiology to build a new cardio-vascular practice" at CHMC in March 2000. ER 13, at P 45. CHMC is an acute-care hospital located in Los Angeles, California. See ER 3, at P 9. The parent corporation of CHMC at the time of Mendiondo's termination, Tenet, owns and operates a number of hospitals in California and other states. See ER 3, at P 8. Mendiondo alleges that she "was terminated [from her position at CHMC] by Tenet" on August 19, 2002. ER 14, at P 47; cf. AOB, at 10 ("Mendiondo's employment at [CHMC] was terminated."). C. The Claims: The Hospital's Alleged Conduct The Complaint contains a section specifically addressing the facts supporting Mendiondo's wrongful termination claims. This section is entitled "Facts Relating to Wrongful Termination of Mendiondo." ER 13-14, at PP 45-48. The Complaint [**6] also mentions Mendiondo in two other paragraphs: paragraph 21 (alleging [*5] Mendiondo "signed [false medical director] timesheets in fear of being fired if she refused") and paragraph 41 (alleging Mendiondo, while taking inventory of defibrillators at CHMC, found "defibrillators so old they could not provide temporary pacemaker support for patients in cardiac arrest"). ER 6, at P 21; ER 11-12, at P 41. In support of her claims, Mendiondo alleges that "from the time Mendiondo started her employ, she was pressured to cut costs and reduce services" and that she "was fired for her resistance to [Tenet's budget cuts that would jeopardize patient care]." ER 13, at P 45. Mendiondo alleges that "she went to [CHMC] CEO, Harry Koenig, and warned that she was 'being set up for failure' by being given mandates that were impossible to meet as to do [sic] would be below the standard of care . . . and constitute civil and criminal violations." ER 13-14, at P 46. Mendiondo alleges that her supervisor "demanded on a near daily basis that Mendiondo cut costs advising that if she did not she would be fired." ER 14, at P 46. Mendiondo alleges she was fired "for supposed failures to adequately [**7] perform her job," but then alleges this reason was a ruse and that she was actually fired "because she demanded that minimum [*6] state and federal standards of health care be maintained, and because of her investigation into facts relating to Tenet and CHMC's submission of false claims and false records to the government." ER 14, at P 47. Mendiondo contends that the Hospital's wrongful termination of her employment at CHMC amounts to retaliation against her in violation of (1) the federal FCA, (2) the California FCA, (3) the California Whistleblower Protection Act, and (4) public policy. See ER 20-22, at PP 77-93. Notably, nowhere does Mendiondo allege facts demonstrating that the Hospital knowingly submitted false claims for payment to the government, that Mendiondo ever investigated the submission of false claims for payment to the government in furtherance of a potential FCA case or investigation, or that the Hospital ever had any knowledge of such an investigation on Mendiondo's part. See ER 1-28.

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D. Procedural History On August 13, 2003, Mendiondo, her fellow nurse Beverly Panaro ("Panaro"), and an unnamed, California-licensed physician filed a sealed [**8] Complaint as qui tam relators. See ER 1-2. [*7] The three plaintiffs brought eleven claims for relief n1 against Apex Cardiology, the Arthritis Institute, Tenet, CHMC, and Daniel Freeman Memorial Hospital ("Freeman"). See ER 1-27. n2

n1 Although the Complaint's caption lists twelve claims (see ER 1), the body of the Complaint only contains eleven claims for relief (see ER 25-27). n2 According to Mendiondo, defendants Apex Cardiology, the Arthritis Institute, and Freeman were never served with the Complaint. See AOB, at 11 n.5. Thus, CHMC and Tenet are the only Appellees in this appeal.

On November 23, 2005, the district court ordered the Complaint unsealed after the United States declined to intervene in this action. See ER 29-32. Thereafter, Mendiondo served the Hospital with the Complaint and the parties entered into a stipulation to dismiss the first and second claims (violation of the federal and California FCAs) with prejudice. The dismissal was entered on April 26, 2006. [**9] See ER 33-37. The district court's docket reflects Mendiondo's purported filing of an ineffectual first amended complaint on December 30, 2003, for which no summons was issued. See ER 90. Mendiondo contends that "no such complaint was located in the court's unsealed records and it was never served on Defendants." [*8] FAOB, at 11 n.4. Hence, Mendiondo asserts that the only "operative complaint is the original complaint." Id. On May 22, 2006, the Hospital filed a motion to dismiss the remaining claims (the "Motion") in the Complaint for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6), 9(b), and 8(e) . See ER 38-55. On June 28, 2006, the district court granted the Hospital's Motion with respect to Mendiondo's wrongful termination claims, and further "ordered, sua sponte, that the supplemental claims be, and hereby are, dismissed." n3 ER 78-79. Thus, the court dismissed the remaining third through seventh claims in the Complaint, all of which concerned Mendiondo's former employment at CHMC and Freeman n4 : wrongful [**10] termination in violation of the federal FCA, wrongful termination in violation of the California FCA, wrongful termination in violation of the California Whistleblower Protection Act, wrongful termination in violation of [*9] public policy, and constructive termination in violation of public policy. See ER 20-23, at PP 77-93. n5 On July 19, 2006, Mendiondo filed a notice of appeal, giving rise to the present appeal. See ER 80-85.

n3 Mendiondo criticizes the district court's "eight line order," in which the "court gave no explanation for its decision." AOB, at 3. However, the federal rules explicitly state that conclusions of law and findings of fact are not required for such decisions on a motion to dismiss. See Fed. R. Civ. P. 52 ("Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12."). n4 Mendiondo contends that she was constructively terminated from a second nursing position at Freeman. See ER 14, at P 48. n5 The district court also dismissed the eighth through eleventh claims in the Complaint, all of which concerned Panaro's former employment at CHMC: constructive termination, wrongful termination in violation of the federal FCA, wrongful termination in violation of the California FCA, and wrongful termination in violation of the California Whistleblower Protection Act. See ER 23-26, at PP 94-115; ER 79. Panaro has not appealed the dismissal of these claims. [**11]

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IV. SUMMARY OF THE ARGUMENT Mendiondo's FCA claims were properly dismissed by the district court as futile. The federal and state FCAs impose liability for knowingly submitting a false claim to the government in order to receive payment. Per the language of the applicable statutes, civil actions under the FCA - including claims for retaliation - may be brought only against alleged false claimants. Accordingly, an employee bringing a retaliation action must have been acting in furtherance of a potential or realized FCA action in order to state a claim for relief. Moreover, a successful FCA retaliation claim cannot [*10] be based on mere violations of laws, rules, or regulations in the absence of an actionable, fraudulent, knowingly false misrepresentation to the government. In this case, Mendiondo never alleges the requisite submission of a false claim by the Hospital to the government. Instead, she alleges irrelevant, general wrongdoing on the part of the Hospital and further alleges that she was terminated due to her complaints to her supervisors about such purported wrongdoing. Because of the anti-fraud nature of the FCA, a heightened standard of specificity [**12] in pleading applies. However, the Complaint contains no allegations that set forth specific facts about Mendiondo's investigation into or reporting of actionable false claims. Moreover, Mendiondo never alleges that the Hospital was put on notice of her pursuit of an investigation under the FCA, as is required to maintain this claim. After the district court dismissed Mendiondo's only federal claim, it rightfully exercised its discretion to dismiss her supplemental state law claims. Mendiondo's supplemental state law claims were also properly dismissed on the merits. Mendiondo's California Whistleblower Protection Act claim fails because she does [*11] not and cannot allege any facts that demonstrate she was terminated because of any complaints she made in connection to activities that compromised the health and safety of patients at the Hospital. Further, the fate of Mendiondo's claims for wrongful termination and constructive termination based on public policy depends upon her statement of proper statutory claim. As Mendiondo failed to state such a claim, her dependent public policy claims likewise fail. Thus, the district court's decision should be affirmed in its entirety. [**13] V. STATEMENT OF THE STANDARD OF REVIEW A. Finality of Dismissal and Judgment The Hospital concurs with Mendiondo's argument that the district court fully adjudicated the Motion and demonstrated its intent to dispose of the entire action. See AOB, at 13-16. The Hospital further concurs with Mendiondo's argument that the district court's failure to enter judgment does not preclude consideration of this appeal. See AOB, at 16-17. Like Mendiondo, the Hospital believes that remanding this case for the sole purpose of obtaining entry of judgment would result in the needless duplication of judicial [*12] efforts. Id. Therefore, the Hospital joins in Mendiondo's request for a substantive review of this appeal. B. Legal Standard for Dismissal Dismissal under Rule 12(b)(6) is proper when a complaint demonstrates a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss pursuant to Rule 12(b)(6), a court may assume the truth of the factual allegations in the complaint, [**14] but "'conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss."' In re Daou Sys., Inc. Sec. Litig., 411 F.3d 1006, 1013 (9th Cir. 2005) (quoting In re VeriFone Sec. Litig., 11 F.3d 865, 868 (9th Cir. 1993)). In federal court, most pleadings must contain merely "a short and plain statement of the claim showing that the

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pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001). However, Rule 9(b) requires fraud allegations to be "stated with particularity." Fed. R. Civ. P. 9(b). Because the federal FCA, 31 U.S.C. § 3729 et seq., is an "anti-fraud statute," Rule 9(b)'s heightened pleading standard applies [*13] to claims for relief brought under both the federal and California FCAs. n6 Bly-Magee, 236 F.3d at 1018. Non-compliance with Rule 9(b) justifies a court's dismissal of claims "grounded in fraud." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003). n7

n6 Mendiondo alleges two wrongful termination claims: one under the federal FCA ("FFCA"), 31 U.S.C. § 3729 et seq., and one under the California FCA ("CFCA"), Cal. Gov't Code § 12651 et seq. Because the CFCA was "patterned after the federal False Claims Act," it is "appropriate to look to precedent construing [the FFCA]" in determining CFCA claims. Debro v. Los Angeles Raiders, 112 Cal. Rptr. 2d 329, 333 (Cal. App. 2001); California v. Altus Finance, 36 Cal. 4th 1284, 1299 (2005). Therefore, the Hospital's analysis herein encompasses both the FFCA and the CFCA and applies to both of Mendiondo's FCA wrongful termination claims. [**15]

n7 Federal Rule of Civil Procedure 8(e) provides another basis to justify the district court's dismissal of the Complaint. The federal rules require each averment of a pleading to be "simple, concise, and direct." Fed. R. Civ. P. 8(e); see McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). If a complaint is "confusing," "argumentative, prolix, replete with redundancy and largely irrelevant," it can be dismissed under Rule 8(e). See McHenry, 84 F.3d at 1177-79 (affirming dismissal of a complaint under Rule 8(e) because it was rambling, confusing, and made "sweeping allegations" against the defendant; such a complaint made it impossible to "figure out which Appellees were allegedly liable for which wrongs" and did "not make clear connections between specific allegations and individual Appellees"). The vagueness and unnecessarily confusing nature of Mendiondo's Complaint makes it impossible for the Hospital to formulate a proper answer or defense; therefore, Rule 8(e) provides an additional basis for the dismissal of the Complaint. [**16] On appeal, this Court reviews de novo a dismissal pursuant to Rules 9(b) or 12(b)(6). See Vess, 317 F.3d at 1102. [*14] However, "[d]enial of leave to amend is reviewed for an abuse of discretion." Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). VI. ARGUMENT A. Mendiondo Failed to State Any Claims 1. Mendiondo Failed to Allege a Viable Claim Under the Federal or California FCA The federal and state FCAs impose liability for anyone who knowingly submits a false claim to the government in order to receive payment. 31 U.S.C. § 3729(a)-(c); Cal. Gov't Code § 12651; see also United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996); Debro v. Los Angeles Raiders, 112 Cal. Rptr. 2d 329, 333 (Cal. App. 2001). A "claim" under Section 3729 is defined as "any request or demand" for money or reimbursement of monies paid that is made to an agent of the U.S. government. 31 U.S.C. § 3729(c); Cal. Gov't Code § 12651; see also Hopper, 91 F.3d at 1266 (holding [*15] that the FCA "attaches liability, [**17] not to underlying fraudulent activity, but to the "claim for payment'"). n8

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n8 Even if Mendiondo's vague, sweeping allegations assert the existence of fraudulent conduct on the part of the Hospital, dismissal of the FCA claims was proper because Mendiondo's Complaint fails to identify any actual, specific false claims submitted to the government by the Hospital. Such allegations fail to meet the Rule 9(b) heightened pleading requirements for FCA claims. See United States ex rel. Lee v. Smithkline Beecham Clinical Labs., 245 F.3d 1048, 1051-52 (9th Cir. 2001) (affirming dismissal of FCA complaint because the allegations of violations were too broad); Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 563-64 (6th Cir. 2003) (affirming dismissal of FCA complaint because plaintiff-employee did not cite a single false claim submitted directly to the government in his complaint).

The following Section of the FCA provides for civil actions that may be brought against alleged violators [**18] of Section 3729. See 31 U.S.C. § 3730. Among the possibilities of relief provided by this Section is a remedy for an "employee who is discharged . . . because of lawful acts done by the employee . . . in furtherance of an action under this section, including investigation for . . . an action filed or to be filed under this section . . . ." 31 U.S.C. § 3730(h) (emphasis added); see also Cal. Gov't Code § 12653. To assert an FCA wrongful termination claim, the plaintiff-employee must prove that: (1) the employee was engaging in conduct protected under the [*16] FCA; (2) the employer must have known that the employee was engaging such conduct; and (3) the employer must have discriminated against the employee because of her protected conduct. See Hopper, 91 F.3d at 1269. a. No FCA claim exists upon which to predicate Mendiondo's claims In the Complaint, Mendiondo alleges numerous incidents of generally wrongful conduct, including that the Hospital illegally induced physicians to join CHMC and Apex Cardiology by providing them directorships and reduced rent on medical office space (see ER [**19] 5-9, at PP 16-34); manipulated patient care and admissions to maximize its reimbursements (see ER 9-11, at PP 35-38); and attempted to maximize profits at the expense of patient care (see ER 11-13, at PP 39-44). However, Mendiondo never alleges the submission of a false claim by the Hospital to the government, which is required in order to maintain a claim for relief under the FCA. n9

n9 Mendiondo's best effort at alleging an FCA violation (see ER 10-11, at P 38) states that the Hospital engaged in billing fraud by placing patients in higher-paying ambulatory categories. However, Mendiondo provides no facts regarding any actual ambulatory claims submitted by the Hospital to the government. Again, these generic allegations do not satisfy the heightened pleading standard under Fed. R. Civ. P. 9(b). See Smithkline Beecham, 245 F.3d at 1051-52.

[*17] Mendiondo fails to make any connection between the Hospital's alleged wrongful [**20] conduct and the actual submission of a false claim to Medicare or any other government program. Instead, Mendiondo relies solely on broad and vague allegations of misconduct by the Hospital. Specifically, Mendiondo alleges that she was forced to sign false medical director timesheets (which involve payments by the hospital to physicians) and that she inventoried defective defibrillators. See ER 6, at P 21; ER 11-12, at P 41. She also makes vague allegations that she refused to abide by cost-cutting measures that negatively would affect patient care. See ER 13, at P 45. These facts simply do not demonstrate that a false claim for payment was made by the Hospital to the government. Because the Complaint fails to allege facts demonstrating there were any colorable false claims for payment by the Hospital to the government to begin with, Mendiondo does not (and cannot) allege the fraudulent underpinnings of her case with sufficient particularity under Rule 9(b), on which to predicate her claims of FCA wrongful termination. See United States ex rel. Lee v. Smithkline [*18] Beecham Clinical Labs., 245 F.3d 1048, 1051-52 (9th Cir. 2001)

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(affirming the dismissal [**21] of a FCA complaint under Fed. R. Civ. P. 9(b) because allegations of FCA violations were too broad and provided no details of defendant's fraudulent behavior with regard to date, time, or place); Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 563-64 (6th Cir. 2003) (affirming the dismissal of a FCA complaint pursuant to Rules 12(b)(6) and 9(b) where plaintiff employee alleged fraudulent conduct on part of defendant employer, but did not cite in his complaint a single false claim submitted directly to the government). n10

n10 Mendiondo cites the First Circuit case of United States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220 (1st Cir. 2004), for the proposition that a plaintiff does not need to meet the heightened Rule 9(b) standard in order to state an FCA retaliation claim under Section 3730(h), as distinguished from claims brought under the remaining provisions of Section 3730. See id. at 238 n.23. In turn, the Karvelas decision cites only one ostensibly supporting case, which does not appear to address Rule 9(b). See ibid.; United States ex rel. Barrett v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 28 (D.D.C. 2003). The Hospital has been unable to locate similar precedent in the Ninth Circuit, and submits that the more reasoned approach would be to require specificity at least for pleading the underlying FCA violations that support Mendiondo's retaliation action, if not also for the retaliation. [**22] At bottom, Mendiondo utterly fails to allege facts that demonstrate she was acting in furtherance of (investigating or [*19] reporting) a potential FCA violation - i.e., the Hospital's knowing submission of a false claim for payment to the government - as opposed to simply complaining to her supervisors. Mendiondo argues that the reach of the FCA should be broader; however, "[v]iolations of laws, rules, or regulations alone do not create a cause of action under the FCA" in the absence of an actionable, fraudulent, knowingly false misrepresentation to the government. See Hopper, 91 F.3d at 1266-67. Thus, while Mendiondo argues that she need not show that a false claim was actually made by the Hospital, Mendiondo has missed the point. Mendiondo must plead specific facts to demonstrate there was a colorable FCA investigation in the first place. n11

n11 Mendiondo's citation to the factually inapposite case of Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838 (9th Cir. 2002), is unavailing. In Moore, a former employee of a government contractor reported his suspicions to NASA's Office of the Inspector General that his employer was engaged in fraud in connection with the performance of the contractor's contract with NASA, a government agency. Id. at 846. The reported fraud directly related to the contractor's right to receive payment under its contract with the government. Ibid. Accordingly, the Ninth Circuit ruled that a reasonable jury could find an objective and subjective good-faith belief that the government contractor "was attempting to defraud the government in violation of the False Claims Act." Ibid. By contrast, Mendiondo complained to her supervisors that she did not want to engage in cost-cutting measures that would affect patient care. Nothing in Mendiondo's allegations even remotely suggests that she was pursuing colorable false claims for payment made to the government. Thus, unlike the plaintiff in Moore, Mendiondo did not (and cannot) allege any facts that would suggest she was terminated because of protected activity under the FCA. [**23] [*20] Mendiondo's conclusory allegation that she was "investigat[ing] . . . facts relating to Tenet and CHMC's submission of false claims and false records to the government," in the absence of facts from which one could conclude false claims for payment had been submitted by the Hospital to the government, is insufficient and can be disregarded

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by the court. See In re Daou Sys., Inc. Sec. Litig., 411 F.3d 1006, 1013 (9th Cir. 2005) ("'[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.'") (citation omitted). Moreover, Mendiondo's analysis completely ignores the premise of the FCA - and Section 3730, which permits her to bring actions only in furtherance of the pursuit of a Section 3729 violation. See AOB, at 24-25. Mendiondo's vague allegations are insufficient to proceed with her retaliatory discharge claims under the FCA. Regardless, the facts Mendiondo did plead demonstrate that she was fired because she complained to her employer, not because she was investigating or pursuing a false [*21] claims action. Given these facts, Mendiondo's Complaint cannot be "fixed" to state an FCA retaliation [**24] claim. Thus, the district court properly exercised its discretion in dismissing Mendiondo's FCA retaliation claims without leave to amend. b. Mendiondo's Failure to Plead Notice Is Fatal to her Claims Even if the Court were to find that Mendiondo properly pleaded that she was engaged in an investigation under the FCAs, Mendiondo's failure to plead facts demonstrating that the Hospital was on notice of her investigation is fatal to her claims. See Hopper, 91 F.3d at 1269; see also United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir. 1996) ("When seeking legal redress for retaliatory discharge under the FCAs, plaintiff has the burden of pleading facts which would demonstrate that the Hospital had been put on notice that plaintiff was either taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the government." (emphasis added)). Mere complaints by employees to employers about suspected fraudulent behavior does not qualify as putting the employer "on notice" that the employee was acting "in furtherance of an action" under the FCA. [*22] See Hopper, 91 F.3d at 1269; [**25] see also McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508, 518 (6th Cir. 2000) (citing United States ex rel. Yesudian v. Howard University, 153 F.3d 731, 743 (D.C. Cir. 1998)) ("[A] plaintiff . . . must show that his employer was aware of his protected activity. Merely grumbling to the employer about job dissatisfaction or regulatory violations does not satisfy the requirement - just as it does not constitute protected activity in the first place."). Even if an employee makes numerous complaints, both oral and written, regarding an employer's lack of compliance with federal and state regulations, such action is not considered sufficient to put an employer "on notice" of the employee's furtherance of an FCA action. See Hopper, 91 F.3d at 1269. In this case, Mendiondo fails to show that she put CHMC or Tenet "on notice" that she was acting "in furtherance" of an FCA action. Instead, Mendiondo alleges only that she told CHMC's CEO that "she was 'being set up for failure' by being given mandates that were impossible to meet as to do [sic] would be below the standard of care . . . and constitute civil and criminal violations. [**26] " ER 13-14, at P 46. Mendiondo also alleges that she warned CHMC's Chief [*23] Nursing Officer that to cut costs "would go below well-established standards of care." ER 13-14, at P 46. Finally, Mendiondo alleges she "was fired for her resistance to [Tenet's insistence on budget cuts that would jeopardize patient care]." ER 14, at P 45. Tellingly, Mendiondo does not allege that she was investigating specific false claims or records submitted to the government by the Hospital, let alone that the Hospital was aware of her investigation. Nor does Mendiondo allege that she cooperated with a government investigation, testified in support of such an investigation, or assisted in an action filed or to be filed under the FCA, and that the Hospital knew about it. Mendiondo's allegations are patently insufficient to demonstrate the Hospital was on notice that Mendiondo was pursuing an FCA investigation or claim. In the absence of colorable facts, Mendiondo resorts to making conclusory legal statements that she was fired "because of her investigation into facts relating to Tenet and CHMC's submission of false claims . . . ." ER 14, at P 47. This allegation does not provide any detail as [**27] to what specific "facts" or "false claims" Mendiondo was "investigating," nor is there an allegation that her employer was on notice of any alleged FCA investigation. Because the allegation in [*24] paragraph 47 is so vague and conclusory, it does not even meet ordinary, let alone heightened, pleading standards. See In re Daou Sys., Inc. Sec. Litig., 411 F.3d 1006, 1013 (9th Cir. 2005) ("'[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.'") (citation omitted). As such, Mendiondo's FCA wrongful termination claims fail to state a claim on which relief can be granted.

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2. Mendiondo Failed to State a Claim Under the California Whistleblower Protection Act As recognized by the district court when it granted the Hospital's Motion, Mendiondo failed properly to plead a claim under the California Whistleblower Protection Act. The California Legislature enacted this law "to encourage patients, nurses, and other healthcare workers to notify government entities of suspected unsafe patient care and conditions." Cal. Health & Safety Code § 1278.5(a). In furtherance of this purpose, [**28] "[n]o health facility shall discriminate or retaliate in any manner against any . . . employee of the health facility because that . . . employee . . . has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding of any governmental entity, relating to the care, services, [*25] or conditions of that facility." Id. § 1278.5(b)). In other words, a claim for violation of the California Whistleblower Protection Act requires a causal connection between an employee's grievance, complaint, or investigation and that employee's job termination. See id. § 1278.5(b), (d). While Mendiondo alleges that the Hospital performed activities that compromised the health and safety of patients at CHMC, Mendiondo fails to allege any facts that demonstrate she was terminated because of any complaints she made in connection with such activities. Rather, Mendiondo expressly alleges that she was terminated "for supposed failures to adequately perform her job." ER 14, at P 47. Mendiondo's allegations are so vague that it is unclear if Mendiondo contends that she complained about any specific activities regarding patient safety. n12 Regardless, [**29] Mendiondo cannot deny that [*26] she never alleged that she "notif[ied] government entities" about any "suspected unsafe patient care and conditions" at CHMC. Cal. Health & Safety Code § 1278.5(a). Mendiondo simply is not a whistleblower deserving of protection under California law, and the trial court's dismissal of this claim should be affirmed.

n12 Mendiondo argues that paragraph 47 of the Complaint contains sufficient allegations of an "investigation" by Mendiondo and her resulting termination. See AOB, at 28-29. Paragraph 47 of the Complaint asserts that Mendiondo was terminated "because she demanded that minimum state and federal standards of health care be maintained, and because of her investigation into facts relating to Tenet and CHMC's submission of false claims and false records to the government." ER 14, at P 47. These allegations fail to specify what standards, what investigation, which false claims, and which false records.

3. [**30] Because Mendiondo's Statutory Claims Failed, Her Dependent Claims for Termination in Violation of Public Policy Likewise Failed Because the trial court concluded that Mendiondo failed to state a claim for wrongful termination under any statute, Mendiondo's dependent claims for wrongful termination and constructive termination based on public policy necessarily failed. In order to prevail on a claim for wrongful termination in violation of public policy, a plaintiff must show that the defendant terminated her employment in violation of a policy that is (1) embodied in a statute or constitutional provision, (2) beneficial to the public, (3) articulated at the time of discharge, and (4) fundamental. See Rivera v. Amtrak, 331 F.3d 1074, 1078 (9th Cir. 2003); see also Yuhasz, 341 F.3d at 568-69 (holding that because plaintiff failed to state a claim for [*27] retaliation with respect to the FCA, plaintiff's common law public policy claims should also be dismissed). Hence, the fate of Mendiondo's public policy claims must dovetail with her FCA and California Whistleblower Protection Act claims. As Mendiondo failed properly to allege a violation [**31] of any of these statutes, her claims for wrongful and constructive termination in violation of public policy rightly were dismissed by the trial court. B. The District Court Had Discretion to Dismiss Appellee's Pendent State Law Claims Because the district court properly dismissed the sole federal claim in Mendiondo's action, it was well within its discretion to also dismiss the state law claims over which it had only supplemental jurisdiction. See ER 78-79 (dismissing California law claims sua sponte). Thus, the district court's decision to decline jurisdiction serves as an

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independent basis to affirm the dismissal of Mendiondo's state law claims. The Ninth Circuit's "practice [is] to dismiss state law claims once the federal claim has been resolved." Danner v. Himmelfarb, 858 F.2d 515, 523 (9th Cir. 1988); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Needless decisions of [*28] state law should be avoided . . . . Certainly, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well."). While a federal court may retain state law claims if doing so promotes interests [**32] such as judicial economy and convenience, this Court has upheld a district court's discretion to dismiss state law claims even "after 3 1/2 years of discovery and pretrial wrangling." Danner, 858 F.2d at 524. Indeed, "Supreme Court and Ninth Circuit precedent teaches us that the district court is in the best position to judge the extent of resources invested in a case and that, therefore, the district court's discretion ought not be lightly disturbed." Schneider v. TRW, Inc., 938 F.2d 986, 993-94 (9th Cir. 1991). Accordingly, this Court "review[s] a district court's decision not to accept pendent jurisdiction for abuse of discretion." Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1102 (9th Cir. 1995). In this case, the district court did not abuse its discretion in dismissing the supplemental state law claims, which depended upon Mendiondo's ability to state a valid FCA claim. As discussed above, Mendiondo cannot save her only federal claim; hence, her state law claims should be adjudicated in the California court system. Because this case did not progress to the point of discovery, much less "pretrial [*29] [**33] wrangling," the interests of judicial economy and duplication of effort are not implicated. Thus, the district court properly declined to retain the pendent claims, and its decision should not be disturbed. VII. CONCLUSION For the foregoing reasons, the Hospital respectfully requests that this Court affirm the dismissal of the Complaint and each alleged claim for relief therein. Dated: February 1, 2007 Respectfully submitted, LATHAM & WATKINS LLP Susan S. Azad Jennifer Blair By: /s/ [Signature] Susan S. Azad Defendants and Appellees Tenet Healthcare Corporation and Centinela Hospital Medical Center [*30] STATEMENT OF RELATED CASES Defendants and Appellees Tenet Healthcare Corporation and Centinela Hospital Medical Center know of no case pending in this Court that is related to this appeal, as defined in Circuit Rule 28-2.6. Dated: February 1, 2007

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Respectfully submitted, LATHAM & WATKINS LLP Susan S. Azad Jennifer Blair By: /s/ [Signature] Susan S. Azad Defendants and Appellees Tenet Healthcare Corporation and Centinela Hospital Medical Center

CERTIFICATION OF COMPLIANCE WITH [**34] RULE 32-1 (CASE NO. 02-55629)

FED. R. APP. P. 32(a)(7)(C) AND CIRCUIT

I certify that pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached Answering Brief is double-spaced (except for headings and footnotes), proportionately spaced, and has been prepared using 14-point Times New Roman font. The main portion of this brief, which responds to Appellants' Opening Brief, contains 5,832 words. Microsoft Word was used to compute the word count. Dated: February 1, 2007 LATHAM & WATKINS LLP Susan S. Azad Jennifer Blair By: /s/ [Signature] Susan S. Azad Defendants and Appellees Tenet Healthcare Corporation and Centinela Hospital Medical Center PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to this action. My business address is Latham & Watkins LLP, 633 West Fifth Street, Suite 4000, Los Angeles, CA 90071-2007. On February 1, 2007, I served the following document(s) described as: ANSWERING BRIEF OF APPELLEES TENET HEALTHCARE [**35] CORPORATION AND CENTINELA HOSPITAL MEDICAL CENTER by serving a true copy of the above-described document(s) in the following manner:

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I am familiar with the office practice of Latham & Watkins LLP for collecting and processing documents for mailing with the United States Postal Service. Under that practice, documents are deposited with the Latham & Watkins LLP personnel responsible for depositing documents with the United States Postal Service; such documents are delivered to the United States Postal Service on that same day in the ordinary course of business, with postage thereon fully prepaid. I deposited in Latham & Watkins LLPs' interoffice mail a sealed envelope or package containing the above-described document(s) and addressed as set forth below in accordance with the office practice of Latham & Watkins LLP for collecting and processing documents for mailing with the United States Postal Service: Co-counsel for Appellant Marcus A. Mancini, Esq. Christopher Barnes, Esq. Mancini & Associates 15303 Ventura Blvd., Suite 600 Sherman Oaks, CA 91403 Co-counsel for Appellant Gerald M. Serlin, Esq. Douglas G. Benedon, Esq. Kelly R. Horwitz, Esq. Benedon & Serlin 21700 [**36] Oxnard Street, Suite 1290 Woodland Hills, CA 91367 I declare that I am employed in the office of a member of the Bar of, or permitted to practice before, this Court at whose direction the service was made and declare under penalty of perjury that the foregoing is true and correct. Executed on February 1, 2007, at Los Angeles, California. /s/ [Signature] Guadalupe Y. Soriano


								
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