Written by Jennet Zapata and Galen T. Shimoda
Unfortunately, health care facilities do not always provide the best of care to patients or hold themselves to the highest standards of care and some employees feel compelled to report their suspicions of wrongful conduct. The law protects employees who report their suspicions.
In 2007, it became unlawful for a health care facility to retaliate against any employee or member of the medical staff because that person
(1) presented a complaint or report to the facility she works for or a governmental agency about unsafe patient care, services or conditions at the facility, or (2) because the person initiated or cooperated in an investigation carried out by a government entity. See Health and Safety Code section 1278.5.
This law was adopted to encourage patients, nurses, members of the medical staff and other health care workers to notify their employer or government entities of suspected unsafe patient care, services and conditions of a facility.
In fact, there is a rebuttable presumption that the health facility unlawfully retaliated against an employee, or other health care worker who filed a complaint, if the retaliation occurred within 120 days of the filing of the complaint by the employee. In other words, if an employee is terminated within 120 days of filing a complaint, there is an assumption that he or she was terminated because of the complaint he or she made.
To establish a case, the employee must show that (1) he or she engaged in activity protected under the law; (2) that the employer knew the employee engaged in protected activity; and (3) that the employer discriminated against the plaintiff because he or she engaged in protected activity. To meet the first element, the employer engages in protected activity if she reasonably believes that the entity she is working for is committing fraud or is not complying with other laws. The second element requires that the employee give notice to the employer of the violations. Third, the employee must show that she was terminated because of her complaints to the employer. If the termination occurs within 120 days of the complaint, the burden of production shifts to the employer.
For example, a court found that an employee who reported suspected deceitful practices to the CEO of the facility she worked at, including practices to inflate Medicare reimbursement claims, perform unnecessary medical procedures, or changes to the billing records, had alleged sufficient facts to support a claim for retaliation in violation of the California Health and Safety Code Section 1278.5 (described above) and a claim for wrongful termination in violation of the public policies embodied in California Health and Safety Code Section 1278.5 and the Federal False Claims Act and the California False Claims Act.
An employee who has been discriminated because he or she reported unsafe health care conditions is entitled to recover lost wages and work benefits caused by the acts of the employer, and the attorney's fees and costs associated with pursuing the case. There are criminal consequences as well for any person who willfully terminates an employee in violation of this law, including a misdemeanor crime punishable by a fine of not more than twenty thousand dollars ($20,000). A violation of this law subjects the health facility to a civil penalty up to twenty-five thousand dollars ($25,000). If the health care facility is owned or operated by a separate entity, that separate entity is also liable under this law.
Similar protections and presumptions apply to employees of "long-term health care facilities," as defined under the law. See Health and Safety Code section 1432.
If you believe your employer retaliated against you because you reported unsafe conditions at a health care facility, you may have a viable claim for retaliation. Please contact the Shimoda Law Corp. to speak with an attorney about your individual situation.
If you think you may have potential claims relating to your employment or believe you have claims appropriate for a class action, contact our office to have your claims evaluated.