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California Nursing Practice Act Labor Employment Attorney LawyerThe Nursing Practice Act (Bus. & Prof. Code, § 2700 et seq.) regulates the practice of nursing in California.  The Nursing Practice Act permits nurses to perform certain functions that would otherwise be considered the illegal practice of medicine, when such functions are performed pursuant to a hospital’s “standardized procedures.”  (Bus. & Prof. Code, § 2725, subd. (c).)  The Nursing Practice Act further provides that the content of such standardized procedures shall be governed by guidelines promulgated by the Board of Registered Nursing and the Medical Board of California.  (Ibid.; see Cal. Code Regs., tit. 16, § 1470-1474, hereafter “Guidelines.”)

Karen Nosal-Tabor is a registered nurse who previously worked in the cardiology department at Sharp Chula Vista Medical Center (Sharp).  A significant portion of Nosal-Tabor’s job duties involved assisting with cardiac stress tests—a diagnostic test used to gather information concerning how well a patient’s heart is working when placed under physical or chemical stressors.  In 2011, Sharp implemented “nurse-led” cardiac stress testing in which a physician is not physically present during the tests.  Nosal-Tabor repeatedly refused to perform nurse-led stress tests and made numerous complaints concerning the testing to Sharp’s management.  Among Nosal-Tabor’s complaints was that stress testing constitutes the practice of medicine and that Sharp had not adopted legally adequate standardized procedures to permit its nurses to perform such tests.  Sharp’s management told Nosal-Tabor that Sharp had adopted legally sufficient standardized procedures, and that these procedures permitted nurses such as Nosal-Tabor to conduct nurse-led stress testing.  After Nosal-Tabor continued to refuse to perform nurse-led stress testing and to complain about its implementation, Sharp disciplined her and eventually terminated her employment.

Nosal-Tabor sued Sharp, alleging wrongful termination and two causes of action premised on claims of improper workplace retaliation.  Sharp filed a motion for summary judgment.  The trial court granted the motion, ruling that Nosal-Tabor presented “no credible evidence that the Standardized Procedures in place at the time of her termination were insufficient.”

On appeal, Nosal-Tabor claims that the trial court erred in granting Sharp’s motion for summary judgment.  Her primary contention is that the trial court erred in concluding that there was no evidence upon which a reasonable juror could find that Sharp had failed to adopt standardized procedures that comply with the Guidelines.  Nosal-Tabor contends that this error caused the court to improperly conclude that she would be unable to establish any of her causes of action.

We conclude that the trial court erred in granting summary judgment for Sharp.  The documents that Sharp maintains constitute its standardized procedures do not contain several elements that are required by the Guidelines.  In light of these deficiencies, a reasonable juror could find that Sharp improperly retaliated against, and wrongfully terminated, Nosal-Tabor when she complained about, and refused to perform, nurse-led stress testing pursuant to Sharp’s legally deficient procedures.

The case is Nosal-Tabor v. Sharp Chula Vista Medical Ctr. (CA4/1 D065843, filed 8/3/15, pub. ord. 8/27/15)

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