On August 14, 2012, in Fahlen v. Sutter Central Valley Hospitals (California Courts of Appeal– 5th District, No. F063023), the court held a doctor who had experienced retaliation for whistleblowing does not have to exhaust administrative remedies that would only provide further means of retaliation against him.
Dr. Mark Fahlen was a doctor with Sutter Central Valley Hospitals who reported the behavior of a group of nurses who disobeyed his orders during the treatment of a patient and was subsequently fired and stripped of his hospital privileges. When a peer review committee reversed the decision to fire Dr. Fahlen because it had found no misconduct on the part of Dr. Fahlen, the hospital responded by reversing the committee's decision, insisting that Dr. Fahlen's conduct was unacceptable. Dr. Fahlen then chose to file suit against the hospital alleging a violation of the Health and Safety Code Section 1278.5's whistleblower protection act. When the hospital responded to this with an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, contending that Dr. Fahlen did not exhaust his administrative remedies before filing suit, the trial court denied their motion.
The California Courts of Appeal found that the trial court did not err in denying the hospital's anti-SLAPP motion. This finding was based on the fact that Dr. Fahlen had already experienced obvious retaliation while going through initial administrative proceedings, and such retaliation would likely occur if he were to continue on that path. The court stated that, since it was made apparent by the hospital's reversal of the peer review committee's decision that Fahlen was not likely to find any relief in the administrative grievance process he would normally need to exhaust, it was not required of him in this case.
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