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Jadwin v. County of Kern

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 ...


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