Nosal-Tabor v. Sharp Chula Vista Medical Center
239 Cal. App. 4th 1224
Cal. Ct. App.2015Background
- Nosal-Tabor, a registered nurse at Sharp Chula Vista, refused to perform "nurse‑led" cardiac stress tests after Sharp implemented them in 2011 and repeatedly complained that Sharp lacked legally adequate standardized procedures authorizing nurses to perform those tests.
- Sharp adopted several documents (Department Guidelines, Protocol, Treadmill Guidelines, Stress Test Order Set) and relied on internal approval by its Cardiology Advisory Committee and a declaration from its medical director, Dr. Cepin, to show compliance with the Board/Medical Board "Guidelines."
- Nosal‑Tabor lodged complaints with Sharp management and the Board of Registered Nursing, received disciplinary warnings and suspension, and was placed on administrative leave and terminated in April 2012.
- Sharp moved for summary judgment, arguing Nosal‑Tabor refused to perform lawful job duties because Sharp had lawful standardized procedures; the trial court granted the motion, finding no credible evidence the procedures were deficient.
- On appeal, the court examined whether Sharp’s written procedures met the mandatory contents of the Board/Medical Board Guidelines (Cal. Code Regs., tit. 16, § 1474) and whether genuine triable issues existed on wrongful termination/public‑policy, Labor Code § 1102.5, and Health & Safety Code § 1278.5 claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sharp adopted legally sufficient standardized procedures under the Guidelines | Nosal‑Tabor: Sharp's documents lacked required elements (competency evaluation, written record of authorized nurses, periodic review) so procedures were legally deficient | Sharp: Its Department Guidelines/Protocol and internal approvals satisfied the Guidelines; Dr. Cepin opined they complied | Held: Sharp's documents omitted several mandated elements (b(5), b(6), b(11)); triable issue exists — procedures were not shown as compliant as a matter of law |
| Wrongful termination in violation of public policy (claim based on B&P Code § 2725/Guidelines) | Nosal‑Tabor: Termination was motivated by refusal to perform acts unlawful under § 2725/Guidelines | Sharp: Termination was for legitimate nonretaliatory reason — refusal to perform lawful job duties | Held: Because triable issue exists that procedures were legally deficient, reasonable juror could find termination violated public policy; summary judgment was improper |
| Labor Code § 1102.5 subdivision (c) (refusal to participate in activity that would violate law) | Nosal‑Tabor: Refusal was protected because nurse‑led tests would violate statutes/regulations absent valid standardized procedures | Sharp: Nurse‑led testing did not violate law; Nosal‑Tabor cannot show noncompliance | Held: Triable issue exists because of the deficient procedures; summary judgment improper. Trial court also erred requiring exhaustion of administrative remedies |
| Health & Safety Code § 1278.5 (health‑care whistleblower retaliation) | Nosal‑Tabor: Repeated complaints to supervisors and hotline, followed by discipline and termination within ~120 days, support retaliation | Sharp: Actions were discipline for refusal to perform lawful testing, not retaliation for complaints | Held: Evidence supports a rebuttable presumption and triable factual dispute whether Sharp retaliated; summary judgment improper |
Key Cases Cited
- Gantt v. Sentry Ins. Co., 1 Cal.4th 1083 (recognizes wrongful discharge for refusing to violate statute)
- Green v. Ralee Eng’g Co., 19 Cal.4th 66 (wrongful discharge for refusing to violate administrative regulation)
- Fahlen v. Sutter Cent. Valley Hospitals, 58 Cal.4th 655 (interpreting Health & Safety Code § 1278.5 whistleblower protections)
- Towns v. Davidson, 147 Cal.App.4th 461 (summary judgment can be granted when plaintiff cannot establish an essential element)
- Trop v. Sony Pictures Entm’t, 129 Cal.App.4th 1133 (appellate standard: independent review of summary judgment)
- Yau v. Allen, 229 Cal.App.4th 144 (elements of wrongful discharge in violation of public policy)
- Cal. Society of Anesthesiologists v. Brown, 204 Cal.App.4th 390 (discusses scope of nursing practice under B&P § 2725)