Doctor’s Suit Over Firing to Be Test of Law

Dr. Claudia Jensen still cries when she recalls the harried 72-hour shift she worked over a holiday weekend two years ago.

As the designated on-call pediatrician for a managed health care group, Jensen fielded 158 phone calls and treated 20 children while darting between hospitals in Camarillo and Thousand Oaks.

By her standards, it was unacceptable. She had already complained to her supervisor at Greater Valley Medical Group about the on-call practices, and she complained again.

Less than a month later, she was terminated.

Now, the 43-year-old pediatrician is suing her former employers in an action that will test a relatively new statute prohibiting employers from retaliating against doctors who advocate for better patient care. It is believed to be one of the first cases of its kind ever filed.

In her lawsuit, set for trial Wednesday in Ventura County Superior Court, Jensen claims that her bosses retaliated against her for complaining about what she called dangerous practices. Greater Valley attorneys say the termination was a financial decision and that two other doctors were laid off at the same time.

Amended as recently as last year, the 1993 statute has never been tested in the state’s higher courts.

Jensen’s case delves into questions about what is expected of doctors, whether those expectations are reasonable and whether managed care adequately addresses patients’ needs.

It is a case that has opened up Jensen to great personal, professional and financial risk.

“I don’t care,” she said of the risks involved. “Sooner or later, someone is going to get hurt if you don’t change the system.”

Jensen was hired by the Northridge-based Greater Valley in 1994, attracted to the group’s commitment to high-quality health care and the opportunity to move into management, she said.

Six months later, Greater Valley expanded its pediatric practice. The group oversees health care for 20,000 residents in Ventura County and 43,000 in the San Fernando Valley.

In May 1995, Greater Valley purchased the assets of Children’s Medical Group of Thousand Oaks and added four pediatricians.

After the acquisition, an on-call panel of six pediatricians was established to handle after-hours calls.

Jensen initially declined to join the rotating panel because she wanted to handle only the calls of her own patients. But she relented.

In November, Greater Valley’s doctors were told that the group was in financial trouble, but Jensen said her bosses assured them that there would be no layoffs.

Meanwhile, Jensen became concerned that the on-call system was not meeting the needs of the group’s patients. On Dec. 22, she wrote a lengthy letter to her supervisor, Dr. Albert Odio, detailing the problems she saw:

Phone calls from concerned parents were not being returned quickly enough, she said. Medical histories were being glossed over, and the high volume of patients, she wrote, was preventing doctors from adequately screening for appetite, fluid intake or pain.

Then came the 1995 New Year’s weekend.

“I had so many patients coming in on Saturday that Los Robles [Regional Medical Center] opened a second wing just for my patients and gave me a nurse,” she said. “You can imagine the quality of care. I was running a fast track.”

Fearing that the emergency room patients were waiting too long, she asked the on-call secretary to contact other pediatricians to help out. Some could not be reached. Others got angry, she said, later telling Jensen that she should have been able to handle the situation.

Within two weeks, she was laid off.

The group director declined to comment. But Jensen said he told her that the reason for her dismissal was “strictly financial.” She said she was stunned.

“I never in my wildest dreams expected that I was going to be laid off,” she said.

After struggling to find another job, Jensen decided to file a wrongful termination lawsuit. She is seeking damages for hundreds of thousands of dollars in lost wages.

Jensen specifically alleges that under state law, Greater Valley violated the statute protecting California doctors from retaliatory terminations for advocacy against medical practices that are “reasonably likely to be detrimental to patient safety.”

“It sounds to me like they are getting rid of a squeaky wheel and replacing her with a wheel that doesn’t squeak,” said Karen B. Darnall, Jensen’s former attorney and close friend.

“A jury could find that what she expects is too much,” Darnall said. “I think that what she is asserting is very practical.”

But Kenneth Drake, the Sherman Oaks attorney representing Greater Valley, said Jensen’s attempt to bring her case within the reach of the 1993 statute is “like putting a round peg into a square hole.”

The law does not protect a doctor who protests any practice believed to compromise medically appropriate health care, but those who argue for reasonable practices consistent with the community’s standard of care, his legal papers say.

“We don’t think that the facts of this case come within the reach of [the statute],” Drake said in a recent interview. “This was a lawful employment separation.”

As for Jensen’s claims that it was her complaints and not her $120,000 annual salary that led to her dismissal, Drake said: “That is simply not the case.”

The law Jensen’s case relies on was enacted in response to growing concerns in the medical community about the potential for doctors and insurers to clash over what constitutes appropriate care.

With the dawning of managed care, some physicians worried that giant health management organizations could terminate doctors who advocate for better--and sometimes more expensive--health care.

“There has been a chilling effect on doctors,” said Oxnard attorney Mark Hiepler, who handles lawsuits dealing primarily with health care issues. “This legislation came out as a response.”

But proving retaliation by an employer is not easy, Hiepler said.

Jensen said she knows her case will be tough to prove in court.

Since her dismissal, the Camarillo resident and single mother of two young girls has opened her own medical practice in downtown Ventura. Some of her former Greater Valley patients have followed her.

She is hopeful about the future of her practice. But when she talks about her experience with Greater Valley, Jensen often breaks into tears.

“I used to be a committed managed-care enthusiast until this,” she said. “It’s a matter of luck before somebody gets hurt. You can rely on luck, which is what most managed care programs do. But when you have one kid die, you have one kid dead. And to me, one dead kid is one too many.”