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Jadwin v. County of Kern

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 2, 2009

DAVID F. JADWIN, D.O., PLAINTIFF,
v.
COUNTY OF KERN; PETER BRYAN (BOTH INDIVIDUALLY CAPACITY AS CHIEF EXECUTIVE OF KERN AND IN HIS FORMER M.D.; AND DOES 1 THROUGH 10, MEDICAL CENTER); IRWIN HARRIS, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER RE CAL. HEALTH & SAFETY CODE § 1278.5 CLAIMS

I. INTRODUCTION

In this employment case, Plaintiff David F. Jadwin, D.O. ("Plaintiff") and Defendants County of Kern ("County"), Peter Bryan and Irwin Harris, M.D., filed cross-motions for summary judgment on all eleven claims in Plaintiff's Second Amended Complaint. Defendants filed a separate motion for judgment on the pleadings on the ground that Plaintiff's state law claims are barred by virtue of Plaintiff's failure to comply with California's Government Claims Act. One count in Plaintiff's Second Amended Complaint asserts that the County violated California Health & Safety Code § 1278.5. Supplemental briefing is necessary to address issues raised by this claim.

II. BRIEF BACKGROUND

In Plaintiff's last pleading, i.e., his Second Amended Complaint (Doc. 241), filed October 7, 2008, he pled that the County retaliated against him in violation of Health & Safety Code § 1278.5. This statute has been amended since it was enacted in 1999. Effective January 1, 2000, to December 31, 2007, the original statute provided in pertinent part as follows:

(a) The public policy of the State of California to encourage

Legislature finds and declares that it is the patients, nurses, and other health care workers to notify conditions. The Legislature encourages this reporting in government entities of suspected unsafe patient care and order to protect patients government entities charged with ensuring that health and in order to assist those care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a provisions in state and facility and are not intended to conflict with existing and employer relations. federal law relating to employee

(b)(1) No health facility shall discriminate or retaliate other person, health facility because that in any manner against any patient or employee of the patient has initiated or cooperated in any investigation or has presented a grievance or complaint, or or employee, or any

. . . . proceeding of any governmental entity.

(d) Any discriminatory treatment of an employee who has participated, or cooperated in any investigation or proceeding of any governmental entity as specified in subdivision (b), if the the employee's initiation, participation, or cooperation, health facility had knowledge of shall raise a rebuttable presumption that the discriminatory action was taken by the health facility in retaliation, if the discriminatory action occurs within 120 days of the filing of the grievance or complaint. For purposes of employee' shall include discharge, demotion, suspension, this section, 'discriminatory treatment of an presented a grievance or complaint, or has initiated, of employment, or the threat of any of these actions. any other unfavorable changes in the terms or conditions . . . .

(g) An employee who has been discriminated against in to this section shall be entitled to employment pursuant benefits caused by the acts of the employer, and the reinstatement, reimbursement for lost wages and work legal costs associated with pursuing the case.

Cal. Health & Safety Code § 1278.5(a), (b)(1), (d) & (g) (Deering's Supp. 2000).*fn1 There is no contention in the pleadings or otherwise that any of the purported retaliation in this case occurred after December 31, 2007. Indeed, Plaintiff's employment as a pathologist with the County at the Kern Medical Center ("KMC") ended by October 2007, when his employment contract expired.

Effective January 1, 2008, § 1278.5 of the Health & Safety Code was amended, and it now provides in pertinent part as follows:

(a) The Legislature finds patients, nurses, members of the medical staff, and other public policy of the State of California to encourage and declares that it is the health care workers to notify government suspected unsafe patient care and conditions. The entities of Legislature patients and in order to assist those accreditation and encourages this reporting in order to protect government entities charged with ensuring that health whistleblower protections apply primarily to issues care is safe. The Legislature finds and declares that relating to the care, services, and conditions of a provisions in state facility and are not intended to conflict with existing and employer relations. and federal law relating to employee (b)(1) No health facility shall discriminate or member of the medical staff, or any other health care retaliate, in any manner, against any patient, employee, done either of the following: worker of the health facility because that person has

(A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental . . . . entity.

(2) No entity that owns or operates a health facility, or which owns or operates any other health facility, shall person has taken any actions discriminate or retaliate against any person because that subdivision. pursuant to this . . . .

(d)(1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates facility, or that owns or operates any other health that health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by any other health care worker of the facility. the employee, member of the medical staff or (2) For purposes of this section, discriminatory treatment of an any other health care employee, worker member includes, of the but is not limited medical staff, or changes in, or breach of, the terms or conditions of a to, discharge, demotion, suspension, or any unfavorable member of contract, employment, or privileges of the employee, worker of the health care facility, or the threat of any the medical staff, or any other health care . . . . of these actions.

(g) An employee who has been discriminated against in reinstatement, reimbursement for lost wages and work pursuant to this section shall be entitled to benefits caused by the acts of the employer, and the legal costs remedy deemed warranted by the court pursuant to this associated with pursuing the case, or to any chapter or any other applicable provision of statutory or common law. A health care worker who has been discriminated against pursuant to this section shall be entitled to reimbursement for lost income and the legal costs associated deemed warranted by with the pursuing court pursuant to this chapter or the case, or to any remedy other applicable provision member of the medical staff who has been discriminated of statutory or common law. A employment reinstatement, reimbursement for lost income resulting against pursuant to this section shall be entitled to from any change in the terms or conditions of his or her privileges caused by the acts of the facility or the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, case, or to any remedy deemed warranted by the court and the legal costs associated with pursuing the provision of statutory or common law. pursuant to this chapter or any other applicable

By the time this amended statute went into effect in 2008, Plaintiff's employment with the County had already ended. Again, there is no contention in the pleadings or otherwise that retaliation against Plaintiff occurred on or after January 1, 2008. Whether the new statute is retrospective has not been raised.

III. DISCUSSION AND ANALYSIS

A comparison between the old and new version of Health & Safety Code § 1278.5 reveals the following textual changes:

* The new version explicitly prohibits retaliation against any "member of version did not explicitly protect these individuals. care worker of the medical staff" or "any other health the health facility," whereas the old The old version prohibited retaliation against "any patient or employee of the health facility."

* The new version applies to report" presented to a party enumerated in the statute. a "grievance, complaint, or complaint."

The old version applies only to a "grievance or

* The new version applies to a grievance, complaint, or responsible for accrediting or evaluating the facility, report "to the facility, to an entity or agency governmental entity." The old version or the medical staff of the facility, or to any other the statute did complaint" had to be made. not explicitly specify to whom the "grievance or of

* owns or operates a health facility, or which owns or The new version prohibits retaliation by an "entity that operates any other health facility" and not just retaliation by the health facility at issue.

* remedies which now

The new version of (but the did statute not previously) include "any augmented the potential remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law." The new version also apparently treats an "employee" of, a "member of the medical staff" of, and a "health distinct from one another.

care worker" of, a health facility, as being

In his summary judgment moving and opposition papers, Plaintiff relies on the new version of § 1278.5 to advance his retaliation claims. For example, Plaintiff argues that at a medical conference held on October 12, 2005, he made a "protected report to KMC's medical staff" and, as a result, he was retaliated against in 2005. (Doc. 272 at 9.) (Emphasis added.) Plaintiff clearly invokes text from the new version of the statute which provides protection for a "report" to the "medical staff." The version of the statute in effect at the time of the medical conference did not, however, provide protection for a "report." Nor did the version in effect at the time identify the "medical staff" as one of the potential targets to whom whistleblowing could be made. Nor did the version in effect at the time expressly classify a "member of the medical staff" or any "other health care worker" as protected whistleblowers.*fn2

In Plaintiff's opposition briefing to Defendants' motion for judgment on the pleadings, Plaintiff also reveals that he is attempting to sue under the new version of the statute. Plaintiff states that "[b]oth whistleblower statutes which Plaintiff is suing under -- Labor Code § 1102.5 and Health & Safety Code § 1278.5 - expressly provide that an employee's reports to his public employer constitute whistleblowing. H&S § 1278.5(b)(1)(A); Labor C. § 1102.5(e)." (Doc. 293 at 5.) Plaintiff's citation to "H&S § 1278.5(b)(1)(A)" is a reference to the new version of the statute -- the old version did not contain this section (i.e., (b)(1)(A)).

Plaintiff's attempt to premise liability on the new version of the statute, which did not come into effect until after any alleged retaliation occurred, raises concerns regarding retroactive application of the statute. See Myers v. Phillip Morris Companies, Inc., 28 Cal. 4th 828, 841 (2002) ("California courts comply with the legal principle that unless there is an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature ... must have intended a retroactive application.") (emphasis removed and internal quotation marks omitted). The new version of § 1278.5 provides no express language on whether it applies retroactively, nor does it, on its face, purport to clarify the original meaning of the statute.

IV. CONCLUSION

The parties shall have five (5) court days to address, with supplemental briefing, the following questions:

1. Does revised § 1278.5 apply retrospectively?

2. If revised § 1278.5 does not apply retrospectively, do Plaintiff's § 1278.5 claims survive?

3. If revised § 1278.5 applies retrospectively, then how does this impact Defendants' motion for judgment on the pleadings given that the revised version did not exist at the time Plaintiff presented a claim or any "supplemented" claim to the County.*fn3

The supplemental briefing shall not exceed seven (7) pages and shall address only the questions posed.

IT IS SO ORDERED.


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