Khajavi v. Feather River Anesthesia Medical Group
| Decision Date | 10 October 2000 |
| Citation | 84 Cal.App.4th 32,100 Cal.Rptr.2d 627 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 3 Dist. 2000) NOSRAT KHAJAVI, Plaintiff and Appellant, v. FEATHER RIVER ANESTHESIA MEDICAL GROUP et al., Defendants and Respondents. C029159, C029276, C029276 (Sutter) Filed |
APPEAL from the judgment of the Superior Court of Sutter County, Perry Parker, Judge. Reversed, in part; remanded, in part; and affirmed, in part.
Weintraub Genshlea & Sproul, Rosemary Kelley, Charles L. Post, and William S. Jue, for Plaintiff Nosrat Khajavi.
Biegler Opper & Ortiz, Robert P. Biegler and Jesse S. Ortiz, III, for Defendant Feather River Anesthesia Medical Group.
Wilke, Fleury, Hoffelt, Gould & Birney, David A. Frenznick and Anthony J. DeCristoforo, for Defendant Robert Del Pero.
Catherine I. Hanson and Astrid G. Meghrigian, Amicus Curiae for California Medical Association in support of Appellant Khajavi.
CERTIFIED FOR PUBLICATION
Shortly after plaintiff Nosrat Khajavi (Khajavi), an anesthesiologist, and defendant, Robert Del Pero, a surgeon, engaged in an altercation over the wisdom of proceeding with a particular surgery, defendant Feather River Anesthesia Medical Group (Feather River) terminated Khajavi's employment.1 At trial, the court non-suited Khajavi's claims that defendants Feather River and Robert Del Pero had discharged him, and conspired to discharge him, in violation of public policy -- that is, in retaliation for advocating "medically appropriate health care" in violation of Business and Professions Code section 2056.2 The jury determined, however, that Feather River had breached its oral employment agreement with Khajavi and awarded him $26,069.80.
Both sides have appealed. Khajavi contends that the trial court erred in granting a nonsuit on his conspiracy and wrongful discharge claims and by denying his postjudgment request for attorney fees based on his successful breach of contract claim. For its part, Feather River contends that the trial court committed instructional error in connection with Khajavi's claim for breach of contract.
We conclude that the trial court erred in granting a nonsuit to Feather River on Khajavi's claim of wrongful discharge based on a violation of the public policy expressed in section 2056, but that the judgment should be affirmed in all other respects.
Section 2056, subdivision (c), provides that the ". . . rendering by any person of a decision to terminate an employment or other contractual relationship with or otherwise penalize, a physician and surgeon principally for advocating for medically appropriate health care . . . violates the public policy of this state." Relying on a case cited in the statute's declaration of purpose, the trial court concluded that section 2056 only applies to advocacy in disputes with a health care payor and thus non-suited Khajavi's claims based on section 2056. But the plain language of the statute demonstrates that it protects physicians and surgeons from termination or penalty "for advocating for medically appropriate health care," without limitation. ( 2056, subd. (c).) The trial court's contrary interpretation erroneously substituted the objective language of the statute's text for a subjective speculation of its legislative purpose in violation of the rules of statutory construction.
Nonsuit was nonetheless properly granted in favor of defendant Robert Del Pero. He could not be liable for wrongfully terminating, or conspiring to terminate, Khajavi's employment in violation of section 2056 because he had no employment relationship with Khajavi and thus had no legal power to discharge him. Only an employer can be liable for the tort of wrongful discharge of an employee, and "a third party who is not and never has been the plaintiff's employer cannot be bootstrapped by conspiracy into tort liability for a wrong he is legally incapable of committing." (Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal.App.4th 1310, 1313, 1315.)
Turning to Khajavi's successful claim for breach of his oral employment agreement, we conclude that the trial court properly refused Feather River's proposed instruction that an honest but mistaken belief could justify a discharge because the employment agreement here was for a specified term. Unlike a wrongful discharge based on an implied-in-fact contract, an employee who has a contract for a specified term may not be terminated prior to the term's expiration based on an honest but mistaken belief that the employee breached the contract: Such a right would treat a contract with a specified term no better than an implied contract that has no term; such a right would dilute the enforceability of the contract's specified term because an employee who had properly performed his or her contract could still be terminated before the term's end; and such a right would run afoul of the plain language of Labor Code section 2924, which allows termination of an employment for a specified term only "in case of any willful breach of duty . . . habitual neglect of . . . duty or continued incapacity to perform it." Termination of employment for a specified term, before the end of the term, based solely on the mistaken belief of a breach, cannot be reconciled with either the governing statute's text or settled principles of contract law.
Finally, we conclude that Khajavi's claim for attorney fees, based on his oral employment contract claim, cannot succeed. That claim is based on a provision in a more comprehensive written agreement prepared by Feather River which Khajavi had not yet seen and to which Khajavi had not yet consented. As a matter of contract law, a party is entitled to the benefit of only those provisions to which the contracting parties have consented, not those to which they might later consent.
Khajavi, a licensed physician and surgeon, is an anesthesiologist. Defendant Feather River is a corporation comprised of anesthesiologists practicing in the Yuba City area.3
In or about July 1995, Khajavi joined Feather River as one of three anesthesiologists whom it had hired that summer as independent contractors pursuant to written contracts. Khajavi was hired as a "locum tenens" -- a physician who acts as a temporary substitute for another. The parties contemplated that during this period Feather River would evaluate Khajavi's work and decide whether to offer him regular employment. The other two anesthesiologists hired that summer as locum tenens were Dr. Sartaj Bains (Bains) and Dr. Brett Mathieson (Mathieson).
In or about September 1995, Feather River President Richard Del Pero told Khajavi that it had decided to offer him regular full-time employment along with Bains and Mathieson. All three new hires would be compensated at the same rate and receive the same benefits. All three were also told that Feather River would not enter into written employment contracts until after it had completed the negotiation of its own contract with the hospital at which it provided anesthesia services.
At the end of September or early October 1995, Khajavi became an employee of Feather River. From his conversations with Dr. Herbert Henderson, then chief of anesthesiology at Feather River, and Richard Del Pero, Khajavi believed that his employment contract would be for a period of two years, after which Feather River would decide whether to make him a shareholder.
On February 21, 1996, there occurred the incident that Khajavi contends precipitated Feather River's decision to terminate his employment. On that day, Khajavi was preparing to administer anesthesia to an elderly patient undergoing cataract surgery. Before administering the sedative, Khajavi noticed that the patient was in atrial fibrillation, i.e., experiencing an irregular heartbeat. An irregular heartbeat poses significant additional risks to a patient during and after surgery, including the risk of stroke, where (as here) the patient also suffered from congestive heart failure and high blood pressure. When Khajavi asked the surgeon, ophthalmologist Robert Del Pero,4 about the irregular heartbeat, the surgeon told him that the condition was not new, and that the patient was already being treated for it. Relying on that representation, Khajavi administered the sedative, and Robert Del Pero gave the patient the requisite retrobulbar block by injecting an anesthetic behind the patient's eye.
Before the surgery began, Khajavi spoke with the patient's regular physician, who reported that the patient had not, in fact, been treated for an irregular heartbeat, and directed Khajavi to "cancel the case" and send the patient directly to his office.
Khajavi and Robert Del Pero then argued heatedly about whether the surgery should proceed. Khajavi told Robert Del Pero that it was not in the patient's best interest to proceed with the surgery. Robert Del Pero insisted otherwise. Khajavi refused to attend to the patient during the surgery, and she was not monitored by another anesthesiologist. Both men raised their voices; some patients and hospital staff may have heard them.
Within a day or two, Robert Del Pero related the incident to his brother, Richard Del Pero, the Feather River President.
On February 26, Richard Del Pero told a meeting of Feather River shareholders about his brother's argument with Khajavi. He reported that Khajavi had questioned the patient's irregular heartbeat only after the retrobulbar block had been given, that Khajavi had been "yelling" during the argument, and that Khajavi had refused to participate in the surgery. Some Feather River shareholders were concerned that Khajavi's public argument with Robert Del Pero would reflect badly upon the group as a whole and have a detrimental effect on its ongoing contract negotiations with the hospital.
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