03/19/2014 (press release: KGWhistleblower) // Jeffery Keller
A California physician who complained about substandard nursing practices at his hospital — and lost his medical privileges at the facility soon after — will be allowed to proceed with a whistleblower lawsuit. But the February 20 ruling by the California Supreme Court, attorneys say, was a victory for all health care whistleblowers, as it clarified that it is not necessary to exhaust other legal remedies before bringing a whistleblower suit alleging retaliation. Such a condition, the court stated, would “seriously undermine the Legislature’s purpose to afford a whistleblower on a hospital medical staff the right to sue.”
In his suit, the whistleblower, Dr. Mark Fahlan, had argued that his complaints in 2007 and 2008 about insubordination and deficient practices by nurses at Memorial Medical Center in Modesto, California culminated in a decision, by Sacramento-based Sutter Health, not to renew his medical privileges.
Fahlan filed his lawsuit in 2011 under a health care whistleblower statute California had enacted more than a decade earlier. But questions about the kidney specialist’s right to bring the suit have bounced the case among California appellate courts ever since. The Feb 20 ruling affirms a 2011 Superior Court ruling to let the case proceed. The decision was lauded by whistleblower experts, who contend that it will remove the fear of retaliation from medical professionals who want to speak out about wrongful behavior.
“The court’s decision will let California’s health care whistleblower statute do what it was designed to do: protect patients,” says Jeffrey F. Keller, a founding partner at Keller Grover and a veteran whistleblower lawyer who has followed the case but does not represent any of the parties. “By saying that you can bring these suits without exhausting every other remedy, the court is reassuring whistleblowers that if they speak out and are retaliated against, they can get justice quickly — by going straight to court.”
California, like a growing number of states, has put in place laws to encourage and support whistleblowers, who are increasingly seen as a potent front-line weapon in the battle against fraud and other wrongdoing. In January, several new whistleblower protections went into effect in California, including a prohibition against employers who report suspected illegal conduct to company officials, or through internal company channels (previously, such protection was afforded only those who reported such behavior to authorities), and a prohibition from taking so-called ‘anticipatory retaliation’ — action against employees based on a belief that they may report suspected improper conduct.
“The state efforts we’re seeing are welcome — but they’re not surprising,” says Keller, whose firm has offices in Los Angeles, San Francisco, San Jose, and Oakland. “Across the country, legislators are looking at the enormous success federal whistleblower laws and programs — particularly the federal False Claims Act — have had, and are emulating them.”
Since it was modified in the mid-1980s to incentivize whistleblowers — by awarding them a percentage of any ultimate recovery — the False Claims Act has facilitated the recovery of more than $34 billion in improperly paid government funds. “It is a statute that has taken on — and beaten — fraud in areas including Medicare and Medicaid, defense spending, pharmaceuticals, and banking,” says Keller. “Implementing similar statutes on a state level is just a sensible thing to do.”
Dr. Fahlen, whose has seen support from the American Medical Association (which filed a ‘friend of the court’ brief with the California Supreme Court), intends to proceed with his lawsuit to regain his privileges at Memorial Medical Center. The court’s ruling, he said, means that “doctors no longer have to choose between speaking out for their patients or continuing with their careers.”