S156986 In the Supreme Court…

S156986
                         In the
                Supreme Court of California
                          =====================
                     GIL N. MILEIKOWSKY, M.D.,
                             Plaintiff and Appellant
                                       vs.

       WEST HILLS HOSPITAL MEDICAL CENTER ET AL.,
                         Defendants and Respondents.
                         =====================
                   AFTER A DECISION BY THE COURT OF APPEAL
                  SECOND APPELLATE DISTRICT, DIVISION EIGHT
                              CASE NO. B186238
                         =====================
             APPLICATION FOR PERMISSION TO FILE
             BRIEF OF AMICI CURIAE IN SUPPORT OF
                    PLAINTIFF/APPELLANT
                      American Association for Justice
               Association of American Physicians & Surgeons
                     Consumer Attorneys of California
                      The E-Accountability Foundation
                     Government Accountability Project
              Health Administration Responsibility Project, Inc.
                       Health Care Patient Advocates
                            Legal Affairs Council
                            The Liberty Coalition
                       National Whistleblower Center
                              No Fear Coalition
                                  OSC Watch
                      Semmelweis Society International
                        U.S. Bill of Rights Foundation
                          ======================
Valerie Nannery SBN 227394                      Sharon J. Arkin, SBN 154858
Center for Constitutional                       The Arkin Law Firm
       Litigation, P.C.                         333 S. Grand Avenue
777 6th St., N.W., Suite 520                    Twenty-fifth Floor
Washington, DC 2001                             Los Angeles, CA 90071
Tel. 202-944-2814                               Tel. 213-943-1344
Fax 202-965-0920                                Fax 866-571-5676
                            Attorneys for Amici Curiae
       Pursuant to California Rule of Court 8.520(f), we respectfully request leave

to file the accompanying Brief of Amici Curiae in support of Dr. Gil Mileikowsky,

the Plaintiff and Appellant in the above-named action. This application is timely

made within 30 days after the filing of the reply brief on the merits.


          IDENTITIES AND INTERESTS OF THE AMICI CURIAE

       The American Association for Justice (formerly Association of Trial

Lawyers of America) is a voluntary national bar association whose approximately

50,000 members primarily represent plaintiffs in injury cases, including medical

malpractice cases, in California and in every State. AAJ is committed to the

guarantee of fundamental fairness for individuals before our judicial and

administrative tribunals. AAJ is also convinced that enforcement of fair

procedures for physicians facing peer review is essential to protecting doctors

from retaliation by those who place profits ahead of patients.

       The Association of American Physicians & Surgeons, Inc. (AAPS) is a

non-profit, national group founded in 1943 and consisting of thousands of member

physicians, including many in California. AAPS is dedicated to defending the

patient-physician relationship and opposing hospital disciplinary procedures, like

the one at bar, which disrupt that relationship contrary to law. Appellate courts,

including the U.S. Supreme Court, have found AAPS amicus briefs useful. See,

e.g., Springer v. Henry, 435 F.3d 268, 271 (3d Cir. 2006) (citing an AAPS amicus

brief in the first paragraph of its decision).


                                            2
       Consumer Attorneys of California, founded in 1962, is a voluntary

membership organization of approximately 3,000 consumer attorneys practicing

throughout California. Consumer Attorneys' members include numerous attorneys

who represent victims injured by medical malpractice. The growing efforts by

hospitals, medical associations and others to retaliate against doctors who testify

on behalf of those victims is of extreme importance to those members. As such,

Consumer Attorneys has a compelling interest in assuring that such retaliatory

practices are circumscribed and prohibited.

       The E-Accountability Foundation is a charitable organization that

advocates for due process rights and the rule of law. Its online newsmagazine,

Parentadvocates.org, exposes corruption and fraud and advocates, through in-

depth journalism, for the rights of whistleblowers and people who in good faith

speak out about misappropriations of funds, wrong-doing, and malicious

prosecution, and are retaliated against for doing his/her civic duty.

       The Government Accountability Project (GAP)is a non profit, non

partisan public interest organization whose mission is to help whistleblowers,

those employees who exercise free speech rights to challenge abuses of power that

betray the public trust. Since 1977 GAP has represented or otherwise assisted over

5,000 whistleblowers, and been a leader in campaigns to enact or defend nearly all

of America's national whistleblower laws. GAP currently is working for enactment

of statutory whistleblower rights protecting doctors from retaliation through the

use of bad faith peer review as a way to circumvent their legal rights.


                                          3
       Health Administration Responsibility Project, Inc. (HARP) is a non-

profit organization that serves as an educational and informational resource for

patients, doctors, and attorneys regarding health care organizations, and seeks to

enhance the quality of medical care benefits provided in the managed care and

hospital setting. HARP thus has an immediate interest in assuring the protection of

the right of physicians to speak freely and openly in order to improve medical care

and to appear in court on behalf of plaintiffs without retaliation by organized

medical groups.

       Health Care Patient Advocates (HCPA), a grassroots group of

uncompensated individuals, includes, but is not limited to patients, families,

friends of families, health care professionals and concerned citizens. HCPA's

goals are focused on striving for quality safe care for all patients in all health care

settings, with a focus on dialysis facilities, and to strive towards patients, families,

health care workers and physicians to be able to openly voice concerns regarding

delivery of care without fear of any covert or overt retaliation. We believe that

patients, and their families, look to physicians for protection and, therefore our

expectation is that physicians will be able to speak freely when it comes to any

aspect of delivery of care that will protect their patients and improve patient care.

       For more than twenty years, the Legal Affairs Council has fought for due

process, fairness, and accuracy in legal proceedings and criminal prosecutions,

particularly for whistleblowers and individuals being retaliated against for their

activism and political beliefs or unfairly targeted as scapegoats in media and


                                           4
political firestorms. LAC has created legal defense funds in selected

circumstances and joined amicus briefs. LAC remains concerned that standards of

due process and impartial proceedings are vitally important in protecting all

American citizens.

       The Liberty Coalition works to help organize, support, and coordinate

transpartisan public policy activities related to civil liberties and basic rights. The

Liberty Coalition works in conjunction with groups of partner organizations that

are interested in preserving the Bill of Rights, personal autonomy and individual

privacy.

       The National Whistleblower Center was founded in 1988 in order to

provide assistance to whistleblowers who risk their careers to serve the public

interest. The NWC has assisted whistleblowers throughout the United States,

including within the State of California. We have provided direct assistance to

medical doctors who have disclosed threats to patient health and safety. Our

extensive nation-wide educational and advocacy programs are set forth at

www.whistleblowers.org.

       The No FEAR Coalition was founded in 2002 to lead the fight for the

passage of the first civil rights and whistleblower law of the 21st Century: The

Notification of Federal Employees Anti-discrimination and Retaliation Act of

2002. The Coalition provides assistance to whistleblowers who risk their careers

to serve the public interest. The No FEAR Coalition has assisted whistleblowers

throughout the United States, including within the State of California. We have


                                           5
provided a forum and direct assistance to medical doctors who have disclosed

threats to patient health and safety. Our extensive nation-wide educational and

advocacy programs are set forth at www.w3conference.org.

       OSC Watch is an ad hoc, grassroots, organization with 3 goals: 1) Expose

long-standing non-compliance by the Office of Special Counsel (OSC) and Merit

Systems Protection Board (MSPB) with key nondiscretionary duties to protect

federal employees from agency violations of the merit system principles of the

federal civil service (also called "prohibited personnel practices (PPP's)"; 2) stop

it, and 3) obtain some measure of justice for the thousands of loyal, patriotic

federal employees harmed by it. OSC Watch supports and defends the merit

system principles of the federal civil service and federal employees who put

themselves at professional jeopardy to adhere to them, including licensed medical

professionals employed by the federal government.

       The federal government employs thousands of licensed health care

professionals, who are subject to the significantly self-regulating medical

professions to obtain and maintain the their licenses and practice privileges, which

they generally need in their positions in the federal government. Therefore, the

abuses in the self-regulation of the medical profession addressed in this amicus

brief are of interest to OSC Watch, because the merit principles of the federal civil

service require licensed professionals employed by the federal government to

comply with the rules of professional conduct of those licensing organizations. If

their doing so put them at professional jeopardy in their professions, it is relevant


                                          6
to the merit system principles of the federal civil service and the mission of OSC

Watch.

       Semmelweis Society International was founded by physicians who have

first-hand experience in present day sham peer review, a process intended

originally to improve outcomes by educating physicians who have had some

clinical issues. The intent of HCQIA passed in 1986 was to ensure that this

process would occur in a controlled hospital environment by health care

professionals. Unfortunately for most, including Dr. Mileikowsky, this law is

being used to eliminate physicians who are trying to improve the healthcare

environment. Dr. Mileikowsky's case strikes at the heart of due process and how

hospitals have perverted HCQIA to neatly fit in their armamentarium to control

physicians at the expense of quality healthcare. The victims are the patients and

those healthcare professionals who were trying to help them.

       The U. S. Bill of Rights Foundation is a non-partisan public interest law

policy development and advocacy organization seeking remedies at law and public

policy improvements on targeted issues that contravene the Bill of Rights and

related Constitutional law. This Foundation has advocated for better legal

protections against bad faith physician peer review and whistle blower retaliation

for the last five years.




                                         7
                        ASSISTANCE TO THIS COURT

       Amici respectfully submit that the accompanying brief will assist this Court

in addressing the important questions presented in this case. These organizations

represent trial lawyers as well as doctors, nurses and other health care

professionals. They include organizations devoted to protecting whistleblowers, to

fostering accountability in government, and to promoting the rule of law. Amici

thus represent a broad diversity of viewpoints that have come together to address

this Court on an issue that affects not only the parties to this case, but the People

of California and many Americans across the country.

       Physicians are justly proud of their ethical commitment to the welfare of

their patients. Nevertheless, medical care in the United States has always been

influenced by financial considerations. The legislature, following the lead of this

Court, has enacted guarantees of fairness to protect doctors from malevolent peer

review by those whose first allegiance is to the financial wellbeing of the hospital.

Amici believe that their experiences across the country teach that strict

enforcement of those protective guarantees is essential to maintaining and

advancing the quality of hospital patient care.




                                           8
                                  CONCLUSION

       For the foregoing reasons, the amici curiae respectfully request that the

court accept the accompanying brief for filing in this case.



Dated: August 28, 2008



                                   Respectfully submitted,

                                   ___________________________

                                   Valerie Nannery SBN 227394
                                   Center for Constitutional
                                          Litigation, P.C.
                                   777 6th St., N.W, Suite 520
                                   Washington, DC 2001
                                   Tel. 202-944-2814
                                   Fax 202-965-0920

                                   Sharon J. Arkin, SBN 154858
                                   The Arkin Law Firm
                                          333 S. Grand Avenue
                                   Twenty-fifth Floor
                                   Los Angeles, CA 90071
                                   Tel. 213-943-1344
                                   Fax 866-571-5676

                                   Attorneys for Amici Curiae




                                          9