1278.5 Retaliation Cases

There are two few key important things that claimants in California Health and Safety Code 1278.5 retaliation cases should know:

1. Statute of Limitations in A Section 1278.5 Retaliation Cases

There has been a lot of confusion regarding which statute of limitations applies to cases under section 1278.5. Contrary to a popular belief, the correct statute of limitations is one year. This is because Code of Civil Procedure section 340 specifies a limitations period of one year for an action upon a statute for a penalty. A penalty is mandatory under section 1278.5(b)(3), which states that “a violation of this section shall be subject to a civil penalty” of not more than $25,000. It appears that under the existing case law, even if the claimant doesn’t seek these penalties, this statute of limitations still applies because the penalty is simply part of the statute. This is in stark contract to other anti-retaliation laws that have a three-year statute of limitations. (Minor v FedEx Office & Print Services (2016).) 

2. Elements of a 1278.5 Retaliation Case  

To establish a case under section 1278.5,  a claimant must satisfy three elements and show that he (1) presented a grievance, complaint or report to the hospital or medical staff regarding the quality of patient care (2) regarding the quality of patient care, and (3) the hospital retaliated against him for doing so.

With regard to the first element, reporting a concern does not require a formal procedure, it at least requires a clear communication that puts the employer on notice as to what wrongful conduct it should investigate or correct. Otherwise, vague or conclusory comments that fail to put the employer on notice as to what conduct it should investigate will not be sufficient to establish this element. (Yanowitz v L’Oréal USA, Inc. (2005)). For instance, simply asking a nurse during a surgery whether larger pads or a different operating table were available is not considered a protected conduct. A hospital worker’s post-surgery conversation with a patient’s parents is also insufficient, because statements must be made 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” in order to be protected under the law. (1278.5(b)(1)(A).



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