LOS ANGELES (CN) — Kaiser Permanente, which operates 40 hospitals predominantly in the western United States, is hoping for mediation to avoid paying an unprecedented $41.5 million in damages that a jury awarded to a nurse who claims she was fired for raising too many concerns about patient safety.
Attorneys for the nurse, Maria Gatchalian, convinced jurors at the Los Angeles Superior Court last month that the health care juggernaut was compromising patient care with cost cutting and understaffing. She says she was terminated for spurious reasons because she continued to speak up about problems at the hospital — even after her supervisors told her not to.
"Your voice, your verdict, it might be able to change Kaiser," David deRubertis, one of Gatchalian's lawyers, told the jurors in his closing argument. "It might be able to tell this health care corporation and insurance company that the quality of care, and the protection of those with the courage to speak out on the quality of care, matters more than the business side of what medicine and health insurance has become today."
Those words clearly resonated with the jury, who took only a few hours to return a verdict awarding Gatchalian $2.5 million for past and future lost earnings, $9 million for past and future emotional distress, and after finding that Kaiser had acted with malice, another $30 million in punitive damages — culminating in an unheard-of amount of damages for a wrongful termination lawsuit that meant to send a message.
Following the Dec. 11 jury verdict, Kaiser Foundation Hospitals and Kaiser Foundation Health Plan — the two Kaiser Permanente entities on the hook for the damages — have brought in a new set of lawyers from white-shoe law firm Gibson Dunn. In conjunction with the plaintiff's attorneys, the group has asked the judge to delay entry of judgment while they sit down with a mediator.
Given the verdict's unprecedented price tag, both sides are willing to pursue a post-trial settlement because the stakes have become significantly higher for them in further litigation.
"There are a lot of moving pieces, but with an award this size, there's a bigger chance the judge will reduce it," said Ben Fenton, a litigator with Fenton Law Group in Los Angeles who specializes in health care industry disputes. "Maybe Kaiser didn't look at the case in the right way from the start and didn't realize the strength of the plaintiff's claims."
The judge could slash the jury award pursuant to any Kaiser post-trial motions, or it could be reversed on appeal. In addition, the plaintiff may prefer a smaller payout now than to wait for years as the case winds its way through the appellate process.
Typically, a defendant will try to persuade the trial judge after the verdict that the jury's damages award wasn't supported by the evidence, or that the punitive damages are out of proportion to the compensatory damages.
For Kaiser, aside from the negative publicity, the risk is that the judge will deny its request to modify or vacate the damages and that the court of appeals will see no compelling reasons to overturn the jury's findings. Plus, the health care giant will likely have to pay its new, high-end lawyers a not-insignificant amount of money to litigate the verdict post-trial and on appeal.
"There must have been some pretty egregious evidence to support the retaliation claim," Fenton said.
Gatchalian — 63 years old at the time she sued Kaiser in 2021 — had been working at the Kaiser Permanente Hospital in Woodland Hills, California, for over 30 years when she was fired in June 2019. A patient's purported family member secretly took a picture of her taking a break in a recliner meant for patients or their families in the hospital's neonatal intensive care unit with her bare feet on an isolette, an enclosed incubator, holding a sick newborn.
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