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Doctor Whistle Blower May Sue for Retaliation

Dr. Mark T. Fahlen of Modesto sued his employer, Sutter Central Valley Hospital, alleging he as stripped of his privileges (admitting and treating patients) at the hospital because he complained about bad nursing practices. After various threats directed against him, the hospital invoked a “peer review” privilege and used the result to bar him from the door. The plaintiff-doctor did not first seek a writ of mandamus. The State Supreme Court ruled last week that he was not required to go to the cumbersome administrative process of a mandamus, but could proceed directly to court. This is because retaliation is not a covered “mandamus” subject.

The hospital had claimed that there was a federal pre-emption which attaches to retaliation claims and as such the court was without jurisdiction to hear the matter. Further, the hospital claimed allowing retaliation claims to proceed when based on “peer review” hearings means that employees will have to be interviewed. (Is that a bad thing?). The plaintiff’s attorney said this decision gives physician whistle-blowers strong statutory protections.

This case illustrates an increasing trend in California to streamline and simply administrative proceedings in a variety of settings. For example, new legislation (California Labor Code 1102.7) provides that a claim must be brought with an administrative agency such as the Department of Labor Standards Enforcement or the California Workforce Development Agency only if specifically required by statute. (Danz & Associates has prepared a lengthy check list of all California employment causes of action, please ask us for a copy and we’ll send it free).