Kaiser pleads to scrap nurse’s $41.5 million retaliation verdict

LOS ANGELES (CN) — Kaiser Permanente on Thursday tried to persuade a California judge to throw out a $41.5 million jury verdict for a nurse who claims she was fired because she raised too many concerns about patient safety.

The hospital operator faces an uphill battle as Superior Court Judge Maurice Leiter indicated in a tentative decision ahead of the hearing that he saw no merit in Kaiser's request for "judgment notwithstanding verdict" and to vacate the punitive damages the jury awarded Maria Gatchalian last December.

"There was sufficient evidence here for the jury to determine that plaintiff’s termination was pretextual and disproportionate, and that defendants acted with fraud, malice, or oppression," Leiter said in his tentative decision.

Gatchalian, the judge said, introduced evidence that Kaiser had a motive to retaliate given that she complained about her unit being understaffed; that she was discouraged from filing unusual occurrence reports; that there were repeated failures or refusals to investigate patient safety reports; and that she was fired sufficiently soon after she complained.

Judge Leiter agreed with Kaiser, however, that the $30 million punitive damages award was excessive compared to the $11.5 million in compensatory damages the jury awarded. He gave Gatchalian's counsel 21 days to decide if they wanted to stipulate to $10 million in punitives — otherwise he'd order a new trial only on the amount of punitive damages.

The judge took Kaiser's post-trial motions under submission at the hearing without issuing a final ruling.

Leiter also didn't see grounds for a new trial based on Kaiser's argument that Gatchalian's attorneys had improperly brought in particularly graphic testimony of a complicated delivery at her unit. Kaiser called it "highly prejudicial and improperly influenced the jury’s decision, swaying them through bias and emotion."

Julian Poon, a Gibson Dunn attorney for Kaiser, said at Thursday's hearing that Gatchalian's testimony about a mother begging for a caesarian section and the physician's refusal to perform one during the delivery that went wrong had nothing to do with the understaffing issues central Gatchalian's lawsuit and retaliation claim.

"This is not some roving referendum on the state of healthcare in the United States," Poon said.

But this evidence, according to the judge's tentative ruling, directly pertained to the circumstances surrounding the case and concerned possible violations of statutes or regulations regarding medical practice and care standards.

Gatchalian's testimony about the delivery details, including a patient’s being denied a request for a C-section, also suggested possible violations of patients’ rights under health care laws, the judge said.

"This evidence was relevant to plaintiff’s claim that she was terminated in part in anticipation of her disclosing these issues," Leiter said. "It also was necessary to establish a factual understanding of the environment and practices that surrounded the decision to terminate plaintiff's employment."

Gatchalian's attorney David DeRubertis agreed with the judge at Thursday's hearing that the botched delivery was a "big deal event" at the hospital at the time, and at the end of the day was patient-care related issue, even if his client might have been wrong about whether it involved a legal violation because the woman was denied her right to choose a C-section.

Gatchalian, who was 63 years old when 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.

The anonymous individual, who Gatchalian's attorneys say was likely a Kaiser employee, filed a complaint. According to Kaiser, Gatchalian initially lied about the incident during a fact-finding meeting to investigate the complaint.

However, the nurse claims there was more at play: Gatchalian says she was fired in retaliation for raising numerous issues related to patient safety at the hospital. For one, Kaiser's management lost no time investigating her violation of its policies and firing Gatchalian — whereas according to her lawyers, months might pass before anything happened with other complaints where nurses were photographed acting inappropriately.

Moreover, the hospital's chief nurse executive admitted on the stand that she didn't know of any other nurse getting fired for a single dress code violation, or a single violation of Kaiser's infection-control policies, according to deRubertis.

The real reason she was immediately fired in spite of her 30 years of solid performance, Gatchalian's attorney said during the trial, was that she had continued to file so-called "unusual occurrence reports" to her supervisors in spite of repeatedly being told that the hospital's chief nurse executive didn't want too many of them.

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