California Civil Jury Instructions (CACI) (2017)

4606. Whistleblower Protection—Unsafe Patient Care and Conditions—Essential Factual Elements (Health & Saf Code, § 12785)

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4606.Whistleblower Protection—Unsafe Patient Care and
Conditions—Essential Factual Elements (Health & Saf. Code,
§ 1278.5)
[Name of plaintiff] claims that [name of defendant] discriminated against
[him/her] in retaliation for [his/her] [briefly specify protected conduct]
regarding unsafe patient care, services, or conditions at [specify hospital
or other health care facility], [name of defendant]’s health care facility. In
order to establish this claim, [name of plaintiff] must prove all of the
1. That [name of plaintiff] was [a/an] [patient/employee/member of
the medical staff/specify other health care worker]of [name of
2. That [name of plaintiff] [select one or both of the following
[a. [presented a grievance, complaint, or report to [[name of
defendant]/an entity or agency responsible for accrediting or
evaluating [name of defendant]/[name of defendant]’s medical
staff/ [or] a governmental entity] related to, the quality of
care, services, or conditions at [name of defendant]’s health
care facility;]
[a. [or]
[b. [initiated, participated, or cooperated in an [investigation [or]
administrative proceeding] related to, the quality of care,
services, or conditions at [name of defendant]’s health care
facility that was carried out by [an entity or agency
responsible for accrediting or evaluating the facility/its
medical staff/a governmental entity];]
3. That [name of defendant] [mistreated/discharged/[other adverse
action]] [name of plaintiff];
4. That [name of plaintiff]’s [specify] was a substantial motivating
reason for [name of defendant]’s [mistreatment/discharge/[other
adverse action]] of [name of plaintiff];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2016
Directions for Use
A patient, employee, member of the medical staff, or any other health care worker
of a health facility is protected from discrimination or retaliation if he or she, or his
or her family member, takes specified acts regarding suspected unsafe patient care
and conditions at a health care facility. (Health & Saf. Code, § 1278.5.) A person
alleging discrimination or retaliation by the facility has a private right of action
against the facility. (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th
655, 676 [168 Cal.Rptr.3d 165, 318 P.3d 833].)
For elements 3 and 4, choose “mistreated” and “mistreatment” if the plaintiff was a
patient. Choose “discharge” or specify another adverse action if the plaintiff is or
was an employee, member of the medical staff, or other health care worker of the
defendant’s facility. Other adverse actions include, but are not limited to, demotion,
suspension, or any unfavorable changes in, or breach of, the terms or conditions of
the plaintiff’s contract, employment, or privileges, or the threat of any of these
actions. (Health & Saf. Code, § 1278.5(d)(2).)
There are rebuttable presumptions of retaliation and discrimination if acts are taken
within a certain time after the filing of a grievance. (See Health & Saf. Code,
§ 1278.5(c), (d).) However, these presumptions affect only the burden of producing
evidence. (Health & Saf. Code, § 1278.5(e).) A presumption affecting only the
burden of producing evidence drops out if evidence is introduced that would
support a finding of its nonexistence. (Evid. Code, § 604.) Therefore, unless there is
no such evidence, the jury should not be instructed on the presumptions.
Sources and Authority
• Whistleblower Protection for Patients and Health Care Personnel. Health and
Safety Code section 1278.5.
• “Section 1278.5 declares a policy of encouraging workers in a health care
facility, including members of a hospital’s medical staff, to report unsafe patient
care. The statute implements this policy by forbidding a health care facility to
retaliate or discriminate ‘in any manner’ against such a worker ‘because’ he or
she engaged in such whistleblower action. It entitles the worker to prove a
statutory violation, and to obtain appropriate relief, in a civil suit before a
judicial fact finder.” (Fahlen, supra, 58 Cal.4th at pp. 660−661; internal citation
• “A medical staff member who has suffered retaliatory discrimination ‘shall be
entitled’ to redress, including, as appropriate, reinstatement and reimbursement
of resulting lost income. Section 1278.5 does not affirmatively state that these
remedies may be pursued by means of a civil action, but it necessarily assumes
as much when it explains certain procedures that may apply when ‘the member
of the medical staff . . . has filed an action pursuant to this section . . . ’ ”
(Fahlen, supra, 58 Cal.4th at p. 676, original italics, internal citation omitted.)
• “[Defendant] also appears to contend that it was entitled to judgment as a
matter of law on [plaintiff]’s claim for violation of Health and Safety Code
section 1278.5 because the undisputed evidence established that [defendant]
terminated [plaintiff] for refusing to perform nurse-led stress testing, rather than
for making complaints concerning [defendant]’s nurse-led stress testing. We are
not persuaded. In light of the evidence of [plaintiff]’s complaints pertaining to
the legality of nurse-led stress testing and the disciplinary actions discussed
above, a jury could reasonably find that [defendant] retaliated against her for
making these complaints. This is particularly so given that many of the
complaints and disciplinary actions occurred within 120 days of each other,
thereby triggering the rebuttable presumption of discrimination established in
Health and Safety Code section 1278.5, subdivision (d)(1).” (Nosal-Tabor v.
Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1246 [191
Cal.Rptr.3d 651], original italics.)
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2014) Crimes Against Public
Peace and Welfare, § 393
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13[14]
(Matthew Bender)
4607–4699. Reserved for Future Use