... is for good men to do nothing.
Retaliation Against Physicians - Marjorie Shuer, M.D.Shuer v. County of San Diego
(Physicians Must Be Able to Obtain Prompt Direct Judicial Review of Actions Brought Pursuant to CMA-Sponsored Anti-Retaliation Statute—Business and Professional Code §2056)
Issue: This cases involves a physician was allegedly terminated from employment with a county juvenile hall in direct retaliation for her patient care advocacy. The trial court dismissed the physician’s lawsuit on the grounds that she failed to exhaust her administrative remedies provided by the county. In September 2003, CMA filed an amicus curiae brief explaining that the exhaustion of administrative remedies doctrine (requiring an aggrieved individual let the agency or, in this case, county, decide the matter, before going to court) does not apply in this context.
CMA was the sponsor of Business & Professions Code §2056, a provision that protects physicians against retaliation for advocating for medically appropriate health care for their patients and/or for communications with patients. As the statute itself and its legislative history reveals, the Legislature intentionally enacted a provision with the broadest application to protect all physicians who provide medical services, whether permanent or probationary employees, “at will” employees or independent contractors, and ensure that if they face retaliation as a result of their advocating medically appropriate health care, they have a prompt and direct right to judicial recourse. Given the statute’s purpose—to protect medical whistleblowers against retaliation for advocating for their patients, CMA believes that Business & Professions Code §2056 is not a statute for which exhaustion of administrative remedies is required.
CMA’s brief explained that physicians are often trapped between their ethical and legal duty to remain dedicated to, and vigorously advocate for, their patients’ health care needs and the practical necessity to protect their relationship with the entities that control their ability to practice medicine and treat patients, such as hospitals and managed care plans, and in this case, a county. To ensure that physicians not compromise their obligations to their patients, California law places an affirmative obligation upon physicians to become medical whistleblowers, that is—advocate for medically appropriate health care for their patients where they reasonably believe their ability to provide medically appropriate care is impaired. (Wickline v. State of California (1986) 192 Cal.App.3d 1630, 239 Cal.Rptr. 810.) To safeguard medical whistleblowers from retaliation, CMA explained that the California Legislature in Business & Professions Code §2056, recognized that prompt and direct judicial protection for all physicians victimized by improper terminations or penalties from hospitals, managed care organizations and other organizations that control a physician’s ability to treat patients must exist. Without such protections, at best physician/patient relationships are needlessly destroyed; at worst, the provision of quality medical care is jeopardized. The law countenances neither result.
Physician advocates must have the ability to have their claims heard first and promptly before an independent judiciary as the Legislature intended. If the organization subject to the complaint must first address the charges, no longer will physicians feel safe in zealously acting in their patients’ best interests. No longer will critical physician/patient relationships be maintained. No longer will physicians be able to give, and patients be able to receive, unquestionably un-compromised health care. For these reasons, California Medical Association filed an amicus curiae brief urging that the Court of Appeal reverse the trial court’s judgment and provide the affected physician with the opportunity to seek judicial recourse as the Legislature intended.
Outcome: On April 8, 2004, the California Court of Appeal, Fourth Appellate District, Division One reversed the trial court’s dismissal of the physician’s lawsuit and ruled that 1) it was unclear whether the physician had the right to seek an administrative remedy and 2) the County was barred from asserting that she had failed to exhaust her administrative remedies. Because of these findings, the Court of Appeal did not make a ruling on the physician’s claims and returned the case to the trial court for consideration as to whether Business & Professions Code §2056 was violated. In June 2004, the County of San Diego and various constituencies, including the California Employment Lawyers Association, requested that the Court’s opinion be de-published. On August 11, 2004, the Court denied these requests and the court’s opinion will remain published.