Dr. Jim from Oakland asks this week's question:
Q: "Last week, you wrote an article on whistle-blowing concerning false claims for medical services not provided. I am a physician who is concerned that the lead physician at our facility is providing substandard care by refusing to give certain tests and prescribing certain inferior, less expensive medications. I have suggested that he change his practices so as to improve the care we provide. As a result, I think I am being retaliated against. What are my rights?"
A: Your problem is unfortunately not uncommon. I have handled many cases where doctors who have advocated for better practices suffered retaliation. Often it is insidious: Complaining doctors are written up for insubordination, their medical judgment is questioned, they are put under intense scrutiny, their hours are cut and, in several cases that I have seen, they are sent for a psychological evaluation.
Doctors who challenge the system risk having their careers destroyed. Doctors, especially surgeons, don't like to be questioned in any way. (As I know by personal experience, this is especially true when the questioner is a lawyer questioning their conduct.)
The public policy behind patient safety is so strong, and the threat to doctors is so real, that the Legislature passed Business and Professions Code Section 2056 relating to retaliation against physicians who advocate for patient safety. The Business and Professions Code regulates doctors, lawyers, engineers and other licensed professionals. This particular section provides protection for physicians.
Section 2056 states it is the public policy of the state that a physician and surgeon be encouraged to advocate for medically appropriate health care for his or her patients.
Under Section 2056, to advocate for medically appropriate health care means to appeal a payer's decision to deny payment for a service, or to protest a decision, policy or practice that the physician — consistent with that degree of learning and skill ordinarily possessed by reputable physicians practicing according to the applicable legal standard of care — reasonably believes impairs the physician's ability to provide appropriate health care.
Section 2056 prohibits retaliation against an employee or contractor through termination, or in any other manner that penalizes a physician principally for advocating for medically appropriate health care consistent with that degree of learning and skill ordinarily possessed by reputable physicians practicing according to the applicable legal standard of care violates the public policy of the state.
The section also states that "no person shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that advocacy, nor shall any person prohibit, restrict, or in any way discourage a physician and surgeon from communicating to a patient information in furtherance of medically appropriate health care."
An appeals court in Khajavi v. Feather River Anesthesia Medical Group (2000) summed up the purpose and reason behind Section 2056, saying that, "In sum, Section 2056 should be construed as its text reads: to provide that the termination or penalization of a physician and surgeon 'principally for advocating for medically appropriate health care ... violates the public policy of this state.'
"This declaration — that public policy is violated whenever 'any person' decides to terminate or penalize a physician 'principally for advocating for medically appropriate health care' — expresses an unambiguous legislative intent to apply the statute broadly — to protect physicians' exercise of their professional judgment in advocating for medically appropriate health care, without limitation over the basis of the dispute."
So, Dr. Jim, thank you for standing up for your patients. You have legal protection. If you are retaliated against for advocating for improved patient health care, you should, as much as doctors tend to hate us, hire a trial lawyer to protect your rights, assist you in obtaining reinstatement to your prior position, and assist you in recovering compensation for your economic and noneconomic losses.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to email@example.com.