This is a rather
interesting decision. In April of this
year, the First District Court of Appeal in San Francisco held that a hospital
can fire an employee who brought a lawsuit against a patient after being assaulted
by that patient. The employee had what
is referred to as an “at will” agreement, which means she could be hired or
fired at the will of her employer. When
the hospital asked her to dismiss her suit, she would not do so and they
subsequently fired her.
In this case, we have Ester
Jersey, a now former employee of the John Muir Medical Center. In August of 1997 she was assaulted by a
patient and took a leave of absence to allow her injuries to heal. Ms. Jersey then filed a personal injury
action against the patient. The powers
that be at the Medical Center told Ms. Jersey that she needed to drop her suit
as a conflict of interest was being created.
The battery had taken place in the head trauma unit, and the hospital
told Ms. Jersey that “it is not uncommon for head trauma patients to exhibit
erratic and sometimes violent behavior due to their medical condition.” Ms. Jersey was further informed that
sueing a head trauma patient was not consistent with the values and the mission
of the medical center. Justice Stuart
Pollak wrote for the majority, and he opined that the medical center thought
that this claim was inappropriate in that it was against “a patient whose
conduct may have been affected by the very injuries for which the patient was
being treated.”
After the hospital fired
Ms. Jersey, she sued the hospital, claiming wrongful termination. She claimed that they were violating her
Constitutional right to bring a lawsuit.
(I have subsequently reviewed our Constitution, and I do not find that
right listed anywhere.)
The Appellate Panel decided
that there are certain Constitutional rights one can exercise that one cannot
be fired for; however, there are others for which being fired is not
proscribed. The example the Court used is
that if the employee exercised her right to join a union or file a complaint
about working conditions, that employee could not be fired. In this case however, the Court concluded
that there is no “clear expression of legislative policy” in this matter and
what the hospital did was logical and permissible. In other words, the right to sue is not protected.
Ms. Jersey’s attorney
indicates that a visit to the California State Supreme Court is the likely next
step.
Personally, I went back and
forth as to my views of this ruling until I learned that the hospital
subsequently sued the patient for workers’ compensation costs that it had to
pay to Ms. Jersey when she was out.
Apparently the hospital does not have a problem with litigating against
the patient. Ms. Jersey had to choose
between bringing suit and keeping her job.
She chose to bring her suit. The
hospital then brought its suit and did not suffer the negative consequences
which befell Ms. Jersey. I think this
makes the hospital appear highly hypocritical and I am now rooting for Ms.
Jersey when this case goes up on appeal.
Charlie Unger is a criminal defense attorney in the Glendale
law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the
Foothill Centre for Personal and Family Development. Mr. Unger writes a bimonthly column on legal and psychological
issues. He can be reached at charlie@charlieunger.com or at (818) 244-8694