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A former Laguna Honda physician who says the San Francisco hospital retaliated against him for criticizing patient care can take his case to trial, the 9th U.S. Circuit Court of Appeals ruled Friday. A three-judge panel unanimously held that Dr. John Ulrich Jr. can proceed with his charge that his First Amendment rights were violated when the hospital lodged a damaging report about him with state and federal authorities. “Dr. Ulrich … has provided circumstantial evidence from which a jury could infer that his protected speech formed a substantial motivation for the adverse treatment of him,” wrote Judge Raymond Fisher. He was joined by Judge Michael Daly Hawkins and U.S. District Judge Barry Ted Moskowitz, sitting by designation. The decision should give physicians at public hospitals added protection when speaking out against health care decisions and patient care. And, in addition, a significant aspect of the ruling is that it designates medical care as a matter of public concern. After serving on the hospital’s staff for nearly 10 years, Ulrich objected in 1998 to a decision by hospital management to cut two physicians — who were in another practice area — from the staff, touching off a debate within the hospital about the impact such a move would have on patient care at the more than 1,000-bed hospital for the elderly and infirm. When management subsequently notified Ulrich that he was the subject of an investigation into allegations of professional incompetence, he tacked a resignation outside the hospital nurses’ station criticizing Laguna Honda’s budget priorities. But after learning that resigning in the midst of an investigation could result in an automatic report to state and federal authorities, he attempted to rescind the resignation. The 9th Circuit held that the resignation stands. Although Laguna Honda officials said they found evidence of professional incompetence and reported those findings to the state, a state review found no such problems. However, a federal medical oversight group accepted the Laguna Honda report without conducting its own investigation, rendering Ulrich’s ability to find work virtually nonexistent. As a public employee, Ulrich could not have brought his First Amendment claims unless he spoke to an issue integral to the public’s understanding of governmental affairs. He did, Fisher wrote. “Dr. Ulrich’s protests of the layoff of physicians touched off a debate on the ability of the hospital to care adequately for patients, sparking debate about whether there were less harmful ways to address the hospital’s budgetary problems,” Fisher wrote. The court also asked Senior U.S. District Judge Thelton Henderson of the Northern District of California, on remand, to consider whether Ulrich can reinstate his claims against the city and county of San Francisco.

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