Kaiser charge nurse claims retaliation after being fired. $41M. Los Angeles County.


Long-time nurse in the NICU is fired after photo surfaces of her sitting down with her bare feet propped up on an isolette used to house a sick infant.  She says that the firing over the photo was just a pretext, that she was really fired in retaliation for repeatedly reporting unsafe conditions for patients at Kaiser. 

The Case

  • Case Name: Maria Gatchalian v. Kaiser Foundation Hospitals & Kaiser Foundation Health Plan, Inc.
  • Court and Case Number: Los Angeles Superior Court / 21STCV15300
  • Date of Verdict or Judgment: Monday, December 11, 2023
  • Date Action was Filed: Thursday, April 22, 2021
  • Type of Case: Employment, Whistleblower
  • Judge or Arbitrator(s): Hon. Maurice Leiter
  • Plaintiffs:
    Maria Gatchalian, 66
  • Defendants:
    Kaiser Foundation Hospitals
    Kaiser Foundation Health Plan, Inc.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $41,499,965
  • Net Verdict or Award: $41,499,965
  • Award as to each Defendant:

    Both defendants jointly and severally liable for compensatory damages of $11,499,965.

    Kaiser Foundation Hospitals liable for $15,000,000 in punitive damages.

    Kaiser Foundation Health Plan, Inc. liable for $15,000,000 in punitive damages.

  • Economic Damages:

    Past and future lost wages and benefits: $2,499,965 

  • Non-Economic Damages:

    Past: $1,500,000

    Future: $7,500,000

  • Punitive Damages:

    $30,000,000 total ($15 million as to each defendant)

  • Trial or Arbitration Time: 11 days
  • Jury Polls: 12-0 on all issues except 10-2 on amount of punitive damages

The Attorneys

  • Attorney for the Plaintiff:

    The deRubertis Law Firm, APC by David M. deRubertis, Beverly Hills.

    Southern California Labor Law Group, PC by Taylor M. Prainito and Michael Zelman, Los Angeles.

  • Attorney for the Defendant:

    GBG LLP by Elizabeth (Lisa) Brown, Amanda Bolliger and Jasmine S. Horton, Los Angeles.

The Experts

  • Plaintiff’s Medical Expert(s):

    Anthony Reading, Ph.D., forensic psychology.

  • Defendant's Medical Expert(s):

    George Woods, M.D., forensic psychiatry.

  • Plaintiff's Technical Expert(s):

    Heather Xitco, economics.

Facts and Background

  • Facts and Background:

    Since 1989, plaintiff, age 66, worked as a nurse in Kaiser Permanente's Woodland Hills Medical Center. In 2006 she became a charge nurse in the neonatal intensive care unit (NICU). For many years, plaintiff had solid work performance and no write-ups. She alleged that in 2017, things at the hospital began to change, particularly when new Chief Nursing Executive (CNE) Valerie McPherson took over. Plaintiff alleged that various practices implemented by or during the tenure of CNE McPherson compromised patient care and put patients at risk.

    In August 2017, plaintiff made an internal Kaiser hotline complaint alleging, inter alia, that CNE McPherson was not allowing charge nurses to provide patient care (even when needed) and engaging in other unsafe practices. Kaiser did not investigate this report.

    In the first half of 2018, plaintiff also alleged that other nurses in the NICU (who she believed were jealous of her seniority and the benefits it gave her) began to marginalize her and not recognize her role as charge nurse. Plaintiff alleged that their failure to communicate with her as charge nurse jeopardized patient care because the charge nurse needs to know all that is happening on the unit.

    In June/July 2018, plaintiff reported some of her concerns to Kaiser's HR department. One of the things she reported is that her then-supervisor (Jennifer Astacio) told her that CNE McPherson said plaintiff should not have reported her concerns about the unit through an Unusual Occurrence Report (UOR). A UOR is a formal reporting process that allows a care provider to report concerns occurring on a shift. A UOR is routed to Kaiser's risk management department who then routes the UOR to the appropriate department to conduct a root cause analysis and, if appropriate, implement corrective action.

    In January/February 2019, Helen Kersey became the new Director of Maternal Child Health, including the NICU. Plaintiff alleged that Director Kersey implemented more practices that compromised patient care, specifically practices that plaintiff alleged resulted in understaffing. In early February 2019, plaintiff met with Director Kersey at which time plaintiff alleged that Director Kersey told her that CNE McPherson did not want too many UORs. Plaintiff alleged she pushed back and told Director Kersey UORs are part of ensuring proper patient care and, if she felt one was required, she would submit one. Over the next few months, plaintiff claims she made a series of reports (through the UOR process or otherwise) raising concerns about patient safety and quality of care, including situations involving understaffing resulting in actual or potential staffing ratio violations.

    In April 2019, an anonymous letter came into Kaiser with a picture of plaintiff sitting on a recliner next to an isolette (an incubator for sick babies) on her cell phone with her shoes and socks off and her bare feet touching an isolette that was holding an NICU infant hooked up to monitors. Kaiser interviewed plaintiff regarding the incident and claimed she initially denied it, only admitting it after she was shown the photo. Kaiser terminated plaintiff, claiming that her conduct of placing her bare feet on the isolette violated its infection-control policies and its dress code policies, and that she was allegedly dishonest during her interview about the incident, violating its Principles of Responsibility.

  • Plaintiff's Contentions:

    Plaintiff contended that her termination was in retaliation for her numerous protected disclosures. She further alleged that Kaiser Woodland Hills suffered from chronic understaffing, which impacted the quality of care in the NICU and at times led to the NICU falling below legally required staffing ratios.

    She further alleged that management serially discouraged her from submitting UORs because a UOR required a formal root cause analysis and had an accountability system in place where department management had to report back to risk management. She alleged that Kaiser did not want UORs submitted on these issues because the root cause of the problems was intentional and chronic understaffing, which Kaiser chose and did not want to fix.

    Plaintiff also contended that Kaiser had a "cover-up culture," as shown by multiple instances in which reports or concerns were raised, but not investigated or, if investigated, white-washed. Plaintiff agreed that her conduct in removing her shoes and socks and placing her bare feet on the isolette violated Kaiser's policies and should not have been done. However, she claimed the proper result should have been discipline far short of termination. Plaintiff offered comparative evidence of other similar offenses which did not lead to termination.

  • Defendant's Contentions:

    Kaiser contended that plaintiff's conduct was outrageous and put the sick baby in the isolette at risk of harm either through infection or through the potential that she could have knocked over the isolette. Kaiser also pointed to evidence that after the initial anonymous photo was submitted, additional anonymous submission of the same photos were sent to Kaiser, showing that the anonymous reporter continued to escalate the situation because no action had been taken. Kaiser alleged it was concerned the reporter could post the photos to social media, causing patients and members to distrust the quality of care they may receive at Kaiser’s hospitals and medical clinics.

    Kaiser pointed out that plaintiff's union had filed a grievance regarding her termination and was preparing to fight to get her job back, but plaintiff withdrew the grievance, opting to file a lawsuit instead. Kaiser's retained forensic psychiatrist also alleged that Ms. Gatchalian did not suffer a mental injury from the termination and that her psychological testing showed she was malingering or exaggerating her alleged emotional distress symptoms.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Plaintiff did not treat psychologically following her termination. However, forensic psychologist Anthony Reading, Ph.D. evaluated plaintiff and opined that she suffered from an adjustment disorder as a result of the investigation that led to her termination, and then suffered a major depressive disorder following the termination. Kaiser's forensic psychiatrist George Woods, M.D. disagreed and found that plaintiff did not suffer any psychiatric condition from the termination, but instead claimed her psychological testing showed malingering.

  • Total lost earnings (past and future) claimed was approximately $2,500,000. Kaiser alleged failure to mitigate, pointing to few applications for employment by plaintiff in the four-plus years after termination.

Special Damages

  • Special Damages Claimed - Past Medical: None
  • Special Damages Claimed - Future Medical: None
  • Special Damages Claimed - Past Lost Earnings: $1,268,249
  • Special Damages Claimed - Future Lost Earnings: $1,231,716

Demands and Offers

  • Defendant §998 Offer: $500,000 plus attorney's fees and costs