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Health care facilities are responsible for obeying health and safety laws in order to ensure that patients and medical staff are not subject to unreasonable hazards at the facilities. Care standards are government expectations; however, they do not guarantee quality healthcare. Accordingly, California Health and Safety Code section 1278.5 was implemented to prohibit health care facilities from retaliating against any of their employees for complaining about the quality of care or services provided by the facility. The law protects individuals who make a complaint to a Government agency or to another Government entity about health or safety conditions, so that they are not subject to threats or retaliation from the health care facility in which they work. Specifically, the statute prohibits health care facilities from retaliating against or otherwise discriminating against employees, medical staff, or patients for voicing a complaint or grievance regarding the quality of care or conditions at the health care facility.
The opening paragraph of the statute gives insight to its purpose: "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." To be held liable under the statute, the facility must satisfy the definition of a “health facility” as defined in California Health and Safety Code section 1250. A “health facility” includes general acute care hospitals, acute psychiatric hospitals, skilled nursing facilities, intermediate care facilities, hospice facilities, and nursing facilities among other enumerated facilities.
In 1999, the governor signed into law Senate Bill No. 97 to add section 1278.5 to the Health and Safety Code. While existing law (California Health and Safety Code section 1432) prohibited long-term health care facilities from discriminating or retaliating against a patient or employee of a long-term health care facility for presenting a grievance or complaint, or initiating or cooperating in an investigation or proceeding by a governmental entity, relating to the care, services, or conditions at long-term health care facilities, section 1278.5 imposed similar prohibitions on health facilities other than long-term health care facilities. The need for section 1278.5 was great. The California Department of Health Services (DHS) had reported that there were an annual average of 11,000 complaints against all types of health facilities in California, including long-term care facilities and hospitals. An estimated 7,000 complaints per year were against long-term care facilities. DHS would receive a great number of retaliation complaints against health care facilities, other than long-term care facilities, but without the statutory authority that was later furnished by section 1278.5 they could follow-up on the complaints. 03/10/99- Senate Health and Human Services Committee Analysis.
Under section 1278.5, employees who have been retaliated against for complaining either to an employer or to the government about the conditions of the premises are entitled to reinstatement, reimbursement, or damages. Retaliation can include wrongful termination discharge, demotion, suspension, or any unfavorable change in the terms or conditions of employment of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of doing any of these actions. Further, the facility can be fined up to $25,000 for each of the violations.
Often, violations of California Health and Safety Code section 1278.5 arise in the context of skilled nursing homes. California law requires skilled nursing facilities to provide a minimum of 3.2 hours of nursing care per resident per day. If this staffing level is not adequate to meet resident needs, the nursing home must employ additional licensed nursing and certified nursing assistants as are needed. A facility must post daily for each shift in a clearly visible place the current number of licensed and unlicensed nursing staff directly responsible for resident care. California Health and Safety Code section 1276.5, et seq.; 42 United States Code section 1396r(b)(8); 42 Code of Federal Regulations section 483.30(e). Inadequate staffing is a common reason for employees to lodge complaints to the facility or responsible Government agency or other Government entity.
Feeding tubes are to be used only as a last resort. Feeding tubes may lead to a loss of functioning and can cause serious medical and psychological problems. If a resident is able to swallow and can obtain adequate nutrition by eating, no matter how long it takes, then a feeding tube should not be used. Lack of staff time is not an acceptable excuse. 42 Code of Federal Regulations section 483.25(g); Long-Term Care Facility Resident Assessment Instrument 3.0 User’s Manual Version 1.17.1 October 2019, K0710, 13. Feeding Tubes. Unnecessary use of feeding tubes, catheters, and over-prescribing of drugs are common reasons for employees to lodge complaints to the facility or a responsible Government agency or other Government entity.
Measures must be taken to prevent or reduce the likelihood of bedsores, including changing the position of a bedridden patient, maintaining clean, dry skin, and changing of linens and other items in contact with the patient, as necessary, to maintain a clean, dry skin. 22 California Code of Regulations section 72315. Inadequate care to prevent bedsores is another common reason for employees to lodge complaints to the facility or a responsible Government agency or other Government entity.
An example of a retaliation claim: If a nurse working at a hospital makes a complaint to the Chief of Medicine about the condition of worn-out medical equipment being used on patients in the hospital, and the hospital Board of Directors finds out about it and subsequently fires the nurse, reduces her hours, or demotes her position, then the nurse would likely have a claim against the hospital for violation of California Health and Safety Code section 1278.5. Another example: A patient at a hospital makes a complaint to a health inspector because his hospital bedroom is unclean and contains insects. If the hospital discovers this and consequently discharges the patient for his complaint, then the hospital may be liable for violating California Health and Safety Code section 1278.5.
A further example: Taswell was a licensed medical doctor board certified in nuclear medicine. He was hired at a university medical school as an academic appointee for a six-month period with the explicit understanding that he would be granted a clinical professorship. Taswell was responsible for and had control over the quality, safety, and technical and medical aspects of the imaging procedures performed at the university’s brain imaging center.
Shortly after Taswell was hired, a radiochemist who had recently joined the brain imaging center notified Taswell about potential safety and compliance problems at the brain imaging center. Taswell called his supervisor and informed him of what he had been told by the radiochemist. Taswell also reported the issues to the University of California whistleblower hotline. Later he met with the local designated official responsible for receiving whistleblower complaints. The official told Taswell that investigations would begin and that Taswell should keep the allegations confidential and not investigate the allegations himself.
At a monthly meeting, Taswell expressed his concern that the operation of the brain imaging center was compromising patient safety. Taswell then reported his concerns regarding the brain imaging center to the State Department of Public Health, the United States Food and Drug Administration, and the Department of Health and Human Services. When Taswell notified his supervisor that he had reported his concerns to various public agencies, his supervisor remarked that “this makes me look bad.” Taswell, along with three other University employees with radiation-safety responsibilities, then entered a laboratory related to the brain imaging center and took pictures of what he perceived to be safety violations. A laboratory researcher became angry, questioning whether the group was authorized to enter the laboratory. Taswell believed he was authorized to inspect the laboratory because his responsibilities included conducting inspections, and he had been invited by the radiation safety committee to enter the laboratory.
Taswell was then placed on a paid leave of absence for entering the laboratory. Although a law firm hired by the University to conduct an independent investigation determined that Taswell was authorized to enter the laboratory, the University decided not to renew his contract. Taswell later filed a lawsuit against the University alleging, among other causes of action, retaliation in violation of Health and Safety Code section 1278.5. The trial court granted summary judgment and dismissed Taswell’s lawsuit. On appeal, the Court of Appeal, Fourth District, Division 3 reversed the decision of the trial court, ruling that there was a triable issue of material fact as to whether the University's decisions to place Taswell on an investigatory leave of absence and not renew his contract had a causal connection to Taswell's whistleblowing activities.
Taswell v. The Regents of the Univ. of Cal . (2018) 23 Cal.App.5th 343.Contact Us
If you have experienced retaliation at a health care facility for a health or safety complaint, contact the top retaliation lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.