Gatchalian v. Kaiser Foundation Hospitals/Kaiser Foundation Health Plan Inc.

CASE NAME: Gatchalian v. Kaiser Foundation Hospitals/Kaiser Foundation Health Plan Inc.

TYPE OF CASE: Whistleblower retaliation

COURT: Los Angeles County Superior Court

JUDGE(S): Judge Maurice A. Leiter

PLAINTIFF LAWYERS: The DeRubertis Law Firm, David M. DeRubertis; Southern California Labor Law Group, PC, Taylor M. Prainito, Michael Zelman

DEFENSE LAWYERS: GBG LLP, Elizabeth A. Brown, Amanda Bolliger, Jasmine S. Horton

Kaiser Foundation Hospitals fired 30-year veteran NICU nurse Maria Gatchalian in 2019 after nursing leaders received an anonymous photo showing her sitting in a recliner with her bare feet resting against an isolette that held a newborn.

In December, a Los Angeles jury found that she had really been fired for having filed a series of formal complaints with the hospital company to report problems caused by chronic understaffing. The jury decided that the company and another Kaiser unit should pay Gatchalian $41.4 million in damages, including $30 million in punitive damages. Gatchalian v. Kaiser Foundation Hospitals, 21STCV15300 (L.A. Super. Ct., filed April 22, 2021)

The complaints were known as Unusual Occurrence Reports or UORs, and beginning in about 2018, she submitted around a half-dozen. For instance, she filed a UOR about a nurse who missed feeding a newborn several times one night due to an influx of new patients. The UOR triggered an investigation, "and lo and behold, the error that occurred happened because the unit was understaffed," said Taylor Prainito, the attorney who filed the lawsuit and worked it up for trial.

Soon after, Gatchalian filed a UOR when a nurse used the wrong size tubing on a baby. But several times, supervisors instructed not to file UORs over such risky mistakes.

TAYLOR M. PRAINITO

That became a major theme in the plaintiff's case, lead trial attorney David deRubertis said. He argued to the jury that administrators didn't want UORs because those formal complaints went to the risk management department and required full investigations.

Kaiser "didn't want to look under the hood," deRubertis said. "They knew what the problem was. They intentionally created the problem of chronic understaffing, putting profits over patients."

A much more serious incident took place in February 2019 when a NICU team was called to assist a mother in labor whose baby was in serious distress. The doctor handling the delivery refused to perform a C-section, but eventually a nurse found another doctor who would. "The baby was born barely alive, needed to be resuscitated and ultimately had severe brain damage issues," Prainito said.

Then, the nurse was instructed not to chart the malpractice, deRubertis said. That nurse eventually was severely reprimanded for not charting the incident. She became a powerful witness during the trial, the lawyers said.

As for the photo of the plaintiff with her feet against the isolette, her attorneys showed the jury comparative evidence of very many other policy and hygiene violations by NICU staff that did not result in firing.

DeRubertis said that since the trial, he and his client have been contacted by hundreds of nurses to say thank you. Hospital understaffing is "why this case was so impactful," he said. "Kaiser nurses have gone on strike over this chronic understaffing issue."

Kaiser's defense attorneys did not reply to a request to comment on the case. But in a statement to the Daily Journal in December, a Kaiser executive said the company stands by Gatchalian's firing and will appeal. The company "will maintain our high standards in protecting the health and safety of all our patients."

Motions for a new trial and judgment notwithstanding the verdict are set for mid-March.

-- Don DeBenedictis