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Doctor Stripped of $5.3 Million Judgment but Gets New Trial
Opinion Says Plaintiff Was Erroneously Permitted to Pursue Cause of Action Under False Claims Act but Was Barred From Pressing His Viable Claim for Whistleblower Retaliation Under Health & Safety Code
By a MetNews Staff Writer
A medical doctor had a judgment for more than $5.3 million against the County of Los Angeles wiped out by the Court of Appeal for this district on Friday because it was awarded under a statute that is inapplicable to a governmental entity, but he will have another day in court, the opinion declares, because a demurrer was erroneously sustained without leave to amend to a cause of action under a different law.
Surgeon Timothy Ryan was stripped of his privileges at Harbor-UCLA Medical Center after complaining of alleged misconduct on the part of another doctor, Rodney White, including performing an unnecessary surgery and receiving a kickback.
Ryan’s jury award of $2.1 million, plus attorney fees and costs, was improperly predicated on Government Code §12653—a part of the False Claims Act, which prohibits retaliation against whistleblowers—Presiding Justice Lee Edmon of Div. Three wrote, explaining that the California Supreme Court in 2006 determined in Wells v. One2One Learning Foundation that public entities are not subject to suit under that act. But, she said, Ryan should be able to pursue a cause of action under Health and Safety Code §1278.5.
Code Section
That section provides:
“(b)(1) A health facility shall not discriminate or retaliate, in any manner, against a…member of the medical staff…because that person has…[¶] (A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.”
It adds:
“(g)…A member of the medical staff who has been discriminated against pursuant to this section shall be entitled to reinstatement, reimbursement for lost income resulting from any change in the terms or conditions of the member’s privileges caused by the acts of the facility or the entity that owns or operates a health facility or any other health facility that is owned or operated by that entity, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” Then-Los Angeles Superior Court Judge Gregory Keosian (now an arbitrator/mediator) on April 11, 2016, sustained a demurrer to Ryan’s cause of action under that section, without leave to amend, ruling that “absent express words to the contrary, government agencies such as the County are not included within the general words of section 1278.5 applying to ‘owners’ of such health facilities.”
In her opinion reversing that ruling, Edmon noted that §1278.5 makes express reference, as §1250 does also, to certain public facilities. She pointed to subd. (j) of §1278.5 which says:
“This section does not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility.”
The presiding justice commented:
“This exclusion would have been unnecessary if the statute excluded all publicly owned hospitals.”
The legislative history, she declared, supports the conclusion.
In an portion of the opinion that was not certified for publication, Edmon said:
“[W]e will return the Health and Safety Code section 1278.5 claim to the trial court for further proceedings. In doing so, we note that many issues—including Ryan’s claim that his termination was wrongful—have already been resolved and are law of the case in further proceedings. Other factual issues relevant to the Health and Safety Code section 1278.5 claim may have been resolved by the jury’s verdict and need not be presented to a trier of fact. We express no opinion regarding this issue, which we believe is best decided by the trial court in the first instance.”
The case is Ryan v. County of Los Angeles, B320677.
Therese Y. Cannata, Michael M. Ching, Zachary E. Colbeth, Aaron R. Field, and Irene Lee of the San Francisco firm of Cannata, O’Toole & Olson represented Ryan. Linda Miller Savitt, John J. Manier, and Linda B. Hurevitz of the Encino firm of Ballard Rosenberg Golper & Savitt joined with Edward L. Xanders, and Marco A. Pulido of the mid-Wilshire firm of Greines, Martin, Stein & Richland in arguing for the county.
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