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Nosal-Tabor v. Sharp Chula Vista Med. Ctr., 239 Cal. App. 4th 1224, 191 Cal. Rptr. 3d 651 (2015)

The Court held that summary judgement is not proper with respect to evaluating both retaliation and whistleblower claims where evidence did not conclusively demonstrate a nurse’s complaints of illegal hospital procedures, or that there were any nursing standards applied incorrectly or in an unreasonable way.

The Factual Background

Plaintiff nurse brought a wrongful termination claim against defendant former employer hospital, alleging that she was terminated in retaliation for complaining about and refusing to perform nurse led stress testing on cardiac patients. Plaintiff alleged that she filed various complaints to hospital management that the stress tests lacked a legally required standardized procedure authorizing the performance of nurse-led testing and that her licensing agency had confirmed that the testing was unsafe and as a result, had warned her to stop conducting the tests. Despite the hospital’s attempts to demonstrate otherwise, Plaintiff nurse continued to believe that such tests were unsafe, unlawful, and fell below the reasonable medical care.

After Plaintiff filed various complaints about such hospital management and unsafe tests, including refusing to perform such cardiac tests, she was given a poor performance review, suspended and eventually terminated because of her unreasonable refusal to perform her lawful job duties. At the time of hearing regarding the employee’s termination, the hospital submitted documentation and expert testimony that such test procedures were lawful and that plaintiff has been provided overwhelming confirmation of the legality of such tests.

In opposition, Plaintiff submitted evidence from the Board of Registered Nurses, advising that the stress testing was not to be done without a standardized procedure, as well as deposition testimony from hospital management, and that it could not be confirmed whether the procedures were in fact standardized. As a result, the trial court granted summary judgment in favor of defendant finding that Plaintiff employee had presented no credible evidence that the procedures were insufficient and therefore no reasonable jury could find that Defendant had failed to adopt legal procedures or had terminated Plaintiff employee based on any improper reasons.

The Court of Appeals

The California Court of Appeals reversed holding that because it was undisputed that plaintiff was terminated for refusing to perform the stress testing, a reasonable juror could find that the hospital improperly retaliated against plaintiff for complaining and refusing to participate in an activity that could result in a violation of law. The Court made such determinations based on a number of findings including that the documents submitted by the Defendant failed to support the actual legality of the testing procedures.

The Court also rejected the Defendant’s expert witness testimony on the legality of the procedures, finding it was not a matter subject expert testimony on the legality of the procedures, finding it was not a matter subject to expert medical testimony and that Plaintiff was not required to submit disputing testimony to avoid summary judgement. As such, a reasonable juror could find that the hospital’s procedures were legally insufficient wherein neither the complaint investigation records nor the information given to Plaintiff directly addressed the legality of nurse-led stress testing and therefore Plaintiff could not be said to have known that all legal requirements were met. Therefore, the trial court erred in granting summary judgement for Defendant.

Employment based claims involving a large employer requires a law firm that is experienced, competent, and knowledgeable concerning the complexities of employment based classifications including among medical professionals and their decisions to refuse to effectuate treatment of unsafe, unreasonable, and other medical treatment. If you have any employment-related dispute and are considering suing your employer for discriminatory conduct contact the Orange County Employment Lawyers at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.

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