Whistleblowing and Peer Review

Last month, we discussed the fact that one long-settled aspect of the California Supreme Court's peer-review jurisprudence is the exhaustion-of-remedies doctrine, which holds that a doctor aggrieved by a privileging decision must exhaust all available peer-review remedies before initiating a tort action. We stated that two of California's intermediate appellate courts addressed doctors' ' 1278.5 whistleblower claims ' with diametrically opposed results. The court in Nesson v. N. Inyo Cnty. Local Hosp. Dist., 204 Cal. App. 4th 65 (2012), applied the Westlake Cmty. Hosp. v. Superior Court, 17 Cal. 3d 465 (1976) exhaustion rule and held (without much explanation) that a doctor's whistleblower claim was barred because he did not exhaust administrative remedies. But on materially similar facts, the court in Fahlen v. Sutter Cent. Valley Hosps., 208 Cal. App. 4th 557 (2012), held that exhaustion of ' 1278.5 claims is not required because the statute displaced Westlake's common-law exhaustion requirement. Although they reached opposing results, both the Nesson and the Fahlen courts embraced all-or-nothing approaches.