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Wednesday, August 15, 2012

Fahlen v. Sutter Central Valley Hospitals: Healthcare Whistleblower Need Not File Mandamus Before Filing in Court

Fahlen v. Sutter Central Valley Hospitals (8/14/12) --- Cal. App.4th --- addresses exhaustion requirements for whistleblowers in the healthcare industry.  
Health and Safety Code section 1278.5 is a whistleblower protection law designed to encourage health care workers to notify authorities of “suspected unsafe patient care and conditions.” (§ 1278.5, subd. (a).) One of the issues we must decide is whether a doctor claiming he lost his hospital privileges as a form of whistleblower retaliation must exhaust his judicial remedy of pursuing review, via writ of mandate, of the hospital's action before he can file a whistleblower lawsuit under section 1278.5. A section 1278.5 claim cannot be asserted in writ proceedings, so applying the exhaustion requirement would delay relief for a whistleblower.   
In two recent cases interpreting the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.), the California Supreme Court held that a state employee sanctioned by an agency need not file a mandate petition against the agency before suing it under the whistleblower statute. The court recognized the Legislature's intent to encourage employees to report threats to public health without fear of retribution. (Runyon v. Board of Trustees of California State University (2010) 48 Cal.4th 760, 763, 774; State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 977-978.) For the same reason, prior filing of writ proceedings also is not required here. 
Slip op. at 2.  The Court held that the same rule applied to the plaintiff's cause of action for declaratory judgment under Business and Professions Code Section 803.1, but he would have to exhaust administrative remedies on the following common law and statutory causes of action:  interference with the right to practice an occupation; interference with prospective economic advantage; retaliation for advocating for appropriate care for his patients in, violation of Business and Professions Code sections 510 and 2056; and wrongful termination of hospital privileges.  

The opinion is available here.

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