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
(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
(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 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
(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.
(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. http://www.leginfo.ca.gov/cgi-bin/di...le=1275-1289.5