Executive Summary: The California Supreme Court recently held that California Health and Safety Code section 1278.5(g), which protects health care workers and medical staff from discrimination and retaliation for reporting unsafe patient care and conditions, does not provide a right to a jury trial. While claims brought directly under Section 1278.5(g) do not entitle the parties to a jury trial on that claim, this does not foreclose a jury trial on a related claim for wrongful termination in violation of public policy.
On April 10, 2017, the California Supreme Court in Shaw v. Superior Court (THC-Orange County, Inc.), Case No. S221530, decided that an employee who sought damages for alleged whistleblower retaliation pursuant to Section 1278.5(g) did not have a right to a jury trial on that claim.
The employee, a Human Resources Coordinator, filed a lawsuit against her former employer, a hospital (and related entities) claiming that the defendants wrongfully terminated her employment because she complained that they were employing health care professionals who were not licensed and/or certified and who did not properly complete their competencies. She asserted one causes of action for whistleblower retaliation under Section 1278.5(g) and a second cause of action for wrongful termination in violation of public policy (a Tameny claim). She sought an array of damages including compensatory and emotional distress damages, front pay, back pay, lost bonuses and benefits, punitive and exemplary damages, prejudgment interest, attorneys' fees, costs and civil penalties.
In the lower courts, the trial court denied the employee's request for a jury trial on the Section 1278.5(g) claim, and the Court of Appeal reversed.
As a threshold matter, the California Supreme Court determined that the employee could file a petition for an extraordinary writ seeking appellate review of the trial court's order prior to trial, and did not need to wait until after trial on appeal to contest the denial. A long line of precedent supported this finding.
The Court then ruled that Section 1278.5(g) does not afford a right to a jury trial. Because the statute does not expressly address this issue, the Court examined the statutory language as a whole and the legislative history. The Court reasoned that the court, and not a jury, must rule on this claim because the statute expressly provides the following remedies: reinstatement, reimbursement for lost wages and work benefits and legal costs (i.e. traditionally equitable remedies that a court must decide) and other remedies "deemed warranted by the court." Further, the legislative history indicated that the original text of the statute offered equitable remedies and that the Legislature amended the statute in 2007 so that courts could fashion other remedies as needed to redress the full spectrum of harm suffered by claimants who are not employees (e.g., physicians and surgeons).
The Court concluded that despite not being entitled to a jury trial on the Section 1278.5(g) claim, the employee still could obtain a jury trial on her Tameny claim based on the public policies declared in Section 1278.5. The trial court would need to hear the two causes of action concurrently and allow the jury to decide the Tameny claim first, and then give effect to the jury's decision in determining remaining issues.
The Bottom Line: This decision should be considered a victory for health care facilities. Employees may get around the absence of a jury trial under Section 1278.5(g) by asserting Tameny claims based on the same public policies. However, remedies such as attorneys' fees and civil penalties are not available on Tameny claims, and this type of claim may not apply depending on the nature of the relationship between the plaintiff and defendant.
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