Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 1 of 8

1
2
3
4 UNITED STATES DISTRICT COURT
5 EASTERN DISTRICT OF CALIFORNIA
6 DAVID F. JADWIN, D.O., 1:07-CV-00026-OWW-TAG
7 Plaintiff, ORDER RE CAL. HEALTH &
8 SAFETY CODE § 1278.5 CLAIMS
v.
9 COUNTY OF KERN; PETER BRYAN (BOTH
10 individually and in his former
capacity as Chief Executive Of Kern
11 Medical Center); IRWIN HARRIS,
M.D.; and DOES 1 through 10,
12 inclusive,

13 Defendants.

14
15 I. INTRODUCTION

16 In this employment case, Plaintiff David F. Jadwin, D.O.

17 (“Plaintiff”) and Defendants County of Kern (“County”), Peter Bryan

18 and Irwin Harris, M.D., filed cross-motions for summary judgment on

19 all eleven claims in Plaintiff’s Second Amended Complaint.

20 Defendants filed a separate motion for judgment on the pleadings on

21 the ground that Plaintiff’s state law claims are barred by virtue

22 of Plaintiff’s failure to comply with California’s Government

23 Claims Act. One count in Plaintiff’s Second Amended Complaint

24 asserts that the County violated California Health & Safety Code §

25 1278.5. Supplemental briefing is necessary to address issues

26 raised by this claim.

27
28

1
 Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 2 of 8

1 II. BRIEF BACKGROUND

2 In Plaintiff’s last pleading, i.e., his Second Amended

3 Complaint (Doc. 241), filed October 7, 2008, he pled that the

4 County retaliated against him in violation of Health & Safety Code

5 § 1278.5. This statute has been amended since it was enacted in

6 1999. Effective January 1, 2000, to December 31, 2007, the

7 original statute provided in pertinent part as follows:

8 (a) The Legislature finds and declares that it is the

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

15
(b)(1) No health facility shall discriminate or retaliate
16 in any manner against any patient or employee of the
health facility because that patient or employee, or any
17 other person, has presented a grievance or complaint, or
has initiated or cooperated in any investigation or
18 proceeding of any governmental entity.
. . . .
19
(d) Any discriminatory treatment of an employee who has
20 presented a grievance or complaint, or has initiated,
participated, or cooperated in any investigation or
21 proceeding of any governmental entity as specified in
subdivision (b), if the health facility had knowledge of
22 the employee's initiation, participation, or cooperation,
shall raise a rebuttable presumption that the
23 discriminatory action was taken by the health facility in
retaliation, if the discriminatory action occurs within
24 120 days of the filing of the grievance or complaint. For
purposes of this section, ‘discriminatory treatment of an
25 employee’ shall include discharge, demotion, suspension,
any other unfavorable changes in the terms or conditions
26 of employment, or the threat of any of these actions.
. . . .
27
(g) An employee who has been discriminated against in
28 employment pursuant to this section shall be entitled to

2
 Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 3 of 8

1 reinstatement, reimbursement for lost wages and work

benefits caused by the acts of the employer, and the
2 legal costs associated with pursuing the case.
3 Cal. Health & Safety Code § 1278.5(a), (b)(1), (d) & (g) (Deering’s
4 Supp. 2000).1 There is no contention in the pleadings or otherwise
5 that any of the purported retaliation in this case occurred after
6 December 31, 2007. Indeed, Plaintiff’s employment as a pathologist
7 with the County at the Kern Medical Center (“KMC”) ended by October
8 2007, when his employment contract expired.
9 Effective January 1, 2008, § 1278.5 of the Health & Safety
10 Code was amended, and it now provides in pertinent part as follows:
11 (a) The Legislature finds and declares that it is the
public policy of the State of California to encourage
12 patients, nurses, members of the medical staff, and other
health care workers to notify government entities of
13 suspected unsafe patient care and conditions. The
Legislature encourages this reporting in order to protect
14 patients and in order to assist those accreditation and
government entities charged with ensuring that health
15 care is safe. The Legislature finds and declares that
whistleblower protections apply primarily to issues
16 relating to the care, services, and conditions of a
facility and are not intended to conflict with existing
17 provisions in state and federal law relating to employee
and employer relations.
18
19 (b)(1) No health facility shall discriminate or
retaliate, in any manner, against any patient, employee,
20 member of the medical staff, or any other health care
worker of the health facility because that person has
21 done either of the following:
22
(A) Presented a grievance, complaint, or report to the
23 facility, to an entity or agency responsible for
accrediting or evaluating the facility, or the medical
24
25
1
To facilitate the parties’ research, this version of the
26 statue can also be found by entering the citation to Health &
27 Safety Code § 1278.5 on Westlaw and then, once the statute appears,
by clicking on the “Versions” section under the heading “Full-Text
28 Document.”

3
 Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 4 of 8

1 staff of the facility, or to any other governmental

entity.
2 . . . .
3
(2) No entity that owns or operates a health facility, or
4 which owns or operates any other health facility, shall
discriminate or retaliate against any person because that
5 person has taken any actions pursuant to this
subdivision.
6 . . . .
7 (d)(1) There shall be a rebuttable presumption that
discriminatory action was taken by the health facility,
8 or by the entity that owns or operates that health
facility, or that owns or operates any other health
9 facility, in retaliation against an employee, member of
the medical staff, or any other health care worker of the
10 facility, if responsible staff at the facility or the
entity that owns or operates the facility had knowledge
11 of the actions, participation, or cooperation of the
person responsible for any acts described in paragraph
12 (1) of subdivision (b), and the discriminatory action
occurs within 120 days of the filing of the grievance or
13 complaint by the employee, member of the medical staff or
any other health care worker of the facility.
14
(2) For purposes of this section, discriminatory
15 treatment of an employee, member of the medical staff, or
any other health care worker includes, but is not limited
16 to, discharge, demotion, suspension, or any unfavorable
changes in, or breach of, the terms or conditions of a
17 contract, employment, or privileges of the employee,
member of the medical staff, or any other health care
18 worker of the health care facility, or the threat of any
of these actions.
19 . . . .
20 (g) An employee who has been discriminated against in
employment pursuant to this section shall be entitled to
21 reinstatement, reimbursement for lost wages and work
benefits caused by the acts of the employer, and the
22 legal costs associated with pursuing the case, or to any
remedy deemed warranted by the court pursuant to this
23 chapter or any other applicable provision of statutory or
common law. A health care worker who has been
24 discriminated against pursuant to this section shall be
entitled to reimbursement for lost income and the legal
25 costs associated with pursuing the case, or to any remedy
deemed warranted by the court pursuant to this chapter or
26 other applicable provision of statutory or common law. A
member of the medical staff who has been discriminated
27 against pursuant to this section shall be entitled to
reinstatement, reimbursement for lost income resulting
28 from any change in the terms or conditions of his or her

4
 Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 5 of 8

1 privileges caused by the acts of the facility or the

entity that owns or operates a health facility or any
2 other health facility that is owned or operated by that
entity, and the legal costs associated with pursuing the
3 case, or to any remedy deemed warranted by the court
pursuant to this chapter or any other applicable
4 provision of statutory or common law.
5 By the time this amended statute went into effect in 2008,
6 Plaintiff’s employment with the County had already ended. Again,
7 there is no contention in the pleadings or otherwise that
8 retaliation against Plaintiff occurred on or after January 1, 2008.
9 Whether the new statute is retrospective has not been raised.
10 III. DISCUSSION AND ANALYSIS
11 A comparison between the old and new version of Health &
12 Safety Code § 1278.5 reveals the following textual changes:
13 • The new version explicitly prohibits retaliation against
any “member of the medical staff” or “any other health
14 care worker of the health facility,” whereas the old
version did not explicitly protect these individuals.
15 The old version prohibited retaliation against “any
patient or employee of the health facility.”
16
• The new version applies to a “grievance, complaint, or
17 report” presented to a party enumerated in the statute.
The old version applies only to a “grievance or
18 complaint.”
19 • The new version applies to a grievance, complaint, or
report “to the facility, to an entity or agency
20 responsible for accrediting or evaluating the facility,
or the medical staff of the facility, or to any other
21 governmental entity.” The old version of the statute did
not explicitly specify to whom the “grievance or
22 complaint” had to be made.
23 • The new version prohibits retaliation by an “entity that
owns or operates a health facility, or which owns or
24 operates any other health facility” and not just
retaliation by the health facility at issue.
25
• The new version of the statute augmented the potential
26 remedies which now (but did not previously) include “any
remedy deemed warranted by the court pursuant to this
27 chapter or any other applicable provision of statutory or
common law.” The new version also apparently treats an
28 “employee” of, a "member of the medical staff" of, and a

5
 Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 6 of 8

1 “health care worker” of, a health facility, as being

distinct from one another.
2
3 In his summary judgment moving and opposition papers,
4 Plaintiff relies on the new version of § 1278.5 to advance his
5 retaliation claims. For example, Plaintiff argues that at a
6 medical conference held on October 12, 2005, he made a “protected
7 report to KMC’s medical staff” and, as a result, he was retaliated
8 against in 2005. (Doc. 272 at 9.) (Emphasis added.) Plaintiff
9 clearly invokes text from the new version of the statute which
10 provides protection for a “report” to the “medical staff.” The
11 version of the statute in effect at the time of the medical
12 conference did not, however, provide protection for a “report.”
13 Nor did the version in effect at the time identify the “medical
14 staff” as one of the potential targets to whom whistleblowing could
15 be made. Nor did the version in effect at the time expressly
16 classify a “member of the medical staff” or any “other health care
17 worker” as protected whistleblowers.2
18 In Plaintiff’s opposition briefing to Defendants’ motion for
19 judgment on the pleadings, Plaintiff also reveals that he is
20 attempting to sue under the new version of the statute. Plaintiff
21 states that “[b]oth whistleblower statutes which Plaintiff is suing
22 under – Labor Code § 1102.5 and Health & Safety Code § 1278.5 —
23 expressly provide that an employee’s reports to his public employer
24 constitute whistleblowing. H&S § 1278.5(b)(1)(A); Labor C. §
25
26 2
The version in effect at the time clearly prohibited
27 retaliation against any "employee of the health facility[,]" but a
member of the medical staff at a health facility, such as a
28 physician, may not be an actual employee of the health facility.

6
 Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 7 of 8

1 1102.5(e).” (Doc. 293 at 5.) Plaintiff’s citation to “H&S §

2 1278.5(b)(1)(A)” is a reference to the new version of the statute
3 – the old version did not contain this section (i.e., (b)(1)(A)).
4 Plaintiff’s attempt to premise liability on the new version of
5 the statute, which did not come into effect until after any alleged
6 retaliation occurred, raises concerns regarding retroactive
7 application of the statute. See Myers v. Phillip Morris Companies,
8 Inc., 28 Cal. 4th 828, 841 (2002) (“California courts comply with
9 the legal principle that unless there is an express retroactivity
10 provision, a statute will not be applied retroactively unless it is
11 very clear from extrinsic sources that the Legislature ... must
12 have intended a retroactive application.”) (emphasis removed and
13 internal quotation marks omitted). The new version of § 1278.5
14 provides no express language on whether it applies retroactively,
15 nor does it, on its face, purport to clarify the original meaning
16 of the statute.
17 IV. CONCLUSION
18 The parties shall have five (5) court days to address, with
19 supplemental briefing, the following questions:
20 1. Does revised § 1278.5 apply retrospectively?
21 2. If revised § 1278.5 does not apply retrospectively, do
22 Plaintiff’s § 1278.5 claims survive?
23 3. If revised § 1278.5 applies retrospectively, then how
24 does this impact Defendants’ motion for judgment on the pleadings
25 given that the revised version did not exist at the time Plaintiff
26
27
28

7
 Case 1:07-cv-00026-OWW-DLB Document 304 Filed 03/02/2009 Page 8 of 8

1 presented a claim or any “supplemented” claim to the County.3

2 The supplemental briefing shall not exceed seven (7) pages and

3 shall address only the questions posed.

4 IT IS SO ORDERED.

5 Dated: March 2, 2009 /s/ Oliver W. Wanger

b2e55c UNITED STATES DISTRICT JUDGE
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 3
Plaintiff pled in his Second Amended Complaint that the
25 last “supplemented Tort Claims Act complaint” that he submitted to
the County was on October 10, 2007 (Doc. 241 at 30), which was
26 during the reign of the old version of the statute. Plaintiff’s
27 pleadings also reveal that he did not present any claim to the
County at any time after the effective date of the revised version
28 of the statute (January 1, 2008).