San Francisco Employment Law Firm Blog

Besides other federal and California workplace anti-retaliation laws available to different groups of employees, nurses and other medical professionals working at hospital, clinics, and other healthcare facilities have additional law in California that protects them from retaliation. Under section 1278.5 of California Health and Safety Code, the employers may not prohibit against any employee who complains to an employer or a governmental agency about unsafe patient care or conditions.

Unfortunately, this kind of retaliation is not uncommon. The persons in charge who are afraid that the medical safety complaints are not only directed to them but they are also in part or in whole might be their responsibility will likely make it their first priority to terminate the complaining employee or otherwise shut him up.

In Mendiondo v. Centinela Hospital Medical Center, 521 F.3d 1097 (2008), the employee complained about compromised patient care, including unnecessary catheterizations, refusing to use the safest drug for heart attacks because of cost reasons, and using outdated cardiac equipment, among other things. Her manager informed her outright that she should either stop complaining or she will be fired. The ninth circuit allowed the case to proceed forward after it was found to be improperly dismissed by the district court.

Thus, healthcare employees who are fired for caring about their patients and about complying with their ethical obligations should know that the above statute protects them, and while it might not force the employer who unlawfully fired them, reinstate the victim of retaliation, it gives them a strong voice in court, especially if the fact that questionable practices took place is corroborated by other existing or former employees.

Most labor and employment attorneys know that their client's deposition testimony is likely the most important part and stage of the case. Few aggrieved employees win a case just because they do well at a deposition, but many lose their case or substantially decrease the value of their case because of how they testify or how they present to the opposing counsel. This is exactly why it is so important that you understand how the deposition works and learn to do well.

If your attorney does not plan to spend at least a few hours with you before your deposition because he doesn't think it's necessary or because he is too busy, request that your deposition be postponed, so your attorney can thoroughly prepare you for your testimony. Your attorney should explain to you the purpose of deposition, the basic rules, what to expect from the opposing side, and the common mistakes that deponents make that you should avoid.

My experience suggests that the most confident and calm people become very nervous during their deposition, especially if they testify for the first time. One of the best ways to eliminate the nervousness is for a client to see a video of a deposition, so he/she knows exactly what's going on during those proceedings, and what kinds of questions are being asked.

Attorneys know that when it comes to your deposition, it's not only what you say but how you act and how you present to the other side that matters just as much or even more than the substance of your testimony. If you are a calm, polite, charismatic person who doesn't get destabilized or angry under pressure, who doesn't get offended by inappropriate questions or false allegations, and who is generally likable, this will send a message to the opposing attorneys that the jury or the arbitrator is going to like you too - something that they will be eager to avoid, which in turn will contribute to a faster and better settlement for you. If, on the other hand, you show entitlement mentality, are angry and combative, would not stop talking when answering a question, instead of giving brief and direct answers, the deposing attorney will have a lot of fun "torturing" you at a deposition to the great disappointment of your attorney and will assume that you will simply not last all the way through trial.

As an example, here is one simple question and two very different ways to answer it that essential mean the same, but will produce extremely different results as far as your case goes:

Q: "Isn't it true that you stole $260.00 from the cash register?"
Good answer: "No, I didn't" - calmly and quietly.
Bad Answer: "How can you say something like that. I have never ever stole anything in my life, especially from this evil employer....How dare they accuse me of this after I did so much good work for them. This is outrageous and they need to be punished for this."