Whistleblower protection extended to California's doctors.

With near-unanimous support in the state's legislature, California Gov. Arnold Schwarzenegger signed into law in October a measure providing expanded protections for doctors and other medical staff who report quality-of-care concerns at health care facilities.

The law, backed by the California Medical Association, amended [section] 1278.5 of California's Health and Safety Code, which provided whistleblower protection for hospital employees. The amendment explicitly extends those protections to physicians and other health care workers who are not necessarily hospital employees--and states that "'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."

"The people who know what is wrong with patient care, structurally and in the particulars, are physicians, and none of them, as a rule, are hospital employees. This law therefore extends protection from retaliation in an important way," said Pasadena, California, attorney and former hospital gastroenterologist Arlan Cohen.

Like the old law, the new one creates a rebuttable presumption that a health care facility took discriminatory action against a complaining health care worker if that action took place within 120 days of the worker's filing a complaint about quality of care. Both versions of the law define discrimination as including (but not limited to) "discharge, demotion, suspension," and changes in a worker's contract or privileges.

The amendment extends legal remedies for retaliation--including reimbursement for legal costs, employee reinstatement, and (new to this law) "any other applicable provision of statutory or common law"--to all hospital workers, not just employees. And like the old law, the new one specifies a penalty of up to $25,000 for violations.

California is not alone in extending such legal protections. In June, the Joint Commission, which accredits health care facilities nationwide, revised its accreditation standards for hospitals. As of January 1, all accredited hospitals are prohibited from taking retaliatory action against whisfleblowers--including nonemployee doctors--when they report quality-of-care concerns to the commission. The commission does not specify penalties for policy violations or avenues of recourse for whistleblowers who are retaliated against.

One possible form of retaliation--peer review of a whisfleblower doctor--is not explicitly mentioned in the law. But some defense attorneys who represent hospitals worry that the California law will allow a legal action by a whistleblower against a hospital to proceed while peer review of the whisfleblower is under way, disrupting that process.

In fact, a section of the California amendment acknowledges that possibility: It allows hospitals to petition a 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 a [legal] action" against the facility. It also requires courts to conduct an in camera review of such evidence before granting the injunction, to determine if the release of the records would impede the peer-review process.

For Cohen, defense worries about peer review being disrupted by whistleblower legal actions are misplaced.

"The only way this right could be misused is if the doctor who knows he is to be disciplined begins to send in complaints [about qualityofcare] before the disciplinary actions starts," Cohen said. "Even then, if the disciplinary action is justified, why is the hospital concerned? And if the complaints are contrived, again, why is the hospital concerned?

"Reading between the lines here, the main concern is that the doctor's newly approved rights may open up peer review to the light of day, to some extent, through discovery in the civil case. About time."

Mary Alexander, a San Francisco medical malpractice lawyer and former AAJ president, said the amended law is good news for patient advocates seeking to break a white-coat circle of silence.

"It means that nurses or doctors who see things going wrong can speak up with immunity," she said. "I think it means we ultimately will have better health care."