Alliance for Patient Safety

                            All that is necessary for the triumph of evil...
                                                                ... is for good men to do nothing.

                                                                                                   Edmund Burke

Retaliation Against Physicians - Klaus Wagener, MD

Fenton and Wagner v. Centinela Hospital Medical Center, et al.
This case was brought by emergency physicians working for an exclusive contractor, and who lost their jobs under the contractor when the exclusive contract was canceled. Further, when a new exclusive contractor was obtained, the physicians applied to work under the contract, and were denied by order of the hospital. The physicians sued the hospital based on alleged racial bias as the basis for the contract termination. Included in the facts were the ED physicians’ protests to the hospital regarding certain policies imposed on the ED (such as a 15 minute maximum time spent with each patient) that affected quality of care. The physicians lost on summary judgment at the trial court. On July 31, 1997, CMA filed an amicus curiae brief with the California Court of Appeal (2nd. Dist.) arguing that it is critical to the continuation of high quality health care that physicians and other health care professionals be permitted, and in fact, encouraged to raise objections if they reasonably believe treatment practices or facilities are substandard, without fear of retaliation.

Outcome: On July 13, 1998, the Court of Appeal ruled, in an unpublished opinion, that the case should be remanded for further fact finding on two issues only: (1) to determine employee/independent contractor status of the plaintiffs under the contract, because an employee of an exclusive contractor may sue a hospital under the California Fair Employment and Housing Act (FEHA) if the hospital acted to coerce the contractor to fire the employees for reasons contrary to public policy (in this case, racial prejudice); and (2) to determine if facts warrant that hearing rights accrue to the physicians because they were subsequently denied rehiring by the new exclusive contractor at the hospital. On September 10, 1998, CMA requesting the appellate court publish the opinion, which request was denied by the court on December 16, 1998.