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 or at (818) 244-8694