$41.5 million verdict to NICU nurse fired for reporting understaffing related errors

Whistleblower Retaliation

David deRubertis, The deRubertis Law Firm, APC; Taylor M. Prainito & Michael Zelman, Southern California Labor Law Group PC

A jury's multimillion-dollar award to a wrongfully fired veteran nurse spotlights the problem of hospital understaffing and the growing tension between health care and profit, according to the nurse's attorneys.

Maria Gatchalian was a 30-year charge nurse in Kaiser Woodland Hills' neonatal intensive care unit when she was fired, allegedly because of an anonymously taken photo that showed her resting in a chair with her bare feet propped against a newborn's isolette.

But her attorneys, David deRubertis and Taylor Prainito, convinced a jury the real reason for her firing was that she persisted in reporting problems with patient care even after her supervisors told her to stop. Gatchalian v. Kaiser Foundation Hospitals, 21STCV15300 (L.A. Super. Ct., filed April 22, 2021).

Her supervisors did that because every time Gatchalian filed a formal "unusual occurrence report," or UOR, about a missed feeding, misused equipment or more serious patient-safety concern, the report was forwarded to the hospital risk-management department, which would then require a full investigation and root-cause analysis, deRubertis said.

"Our position -- and some of this was supported by documents and exhibits -- was that upper management discouraged the filing of these," he said. "They didn't want the formal UORs filed because they didn't want someone looking at why is this happening? Because they knew why it was happening: They intentionally chose to understaff the unit to save money, basically putting profits over patient care."

He argued to the jury that the hospital wanted to ignore Gatchalian's complaints in order to obscure the understaffing of the NICU. "At times it even fell below the ... nurse-to-patient staffing ratios that California requires," deRubertis said.

During the trial, the defense called the hospital president to the stand. On cross-examination, deRubertis asked the executive if he didn't agree with previous witnesses that there was an understaffing problem at the Woodland Hills hospital. "And his answer was like, 'No, this is consistent what I've seen in all of the Southern California hospitals Kaiser has,' which was really eye-opening."

The attorneys also countered Kaiser's reason for firing Gatchalian. Putting her bare feet on the isolette "was a dumb thing to do ... but it did not truly put the baby in danger," deRubertis said. They also introduced evidence of several incidents in which other employees had violated equally or more serious NICU policies and yet were not fired.

After 11 days of trial in early December, the jury awarded Gatchalian $41,399,965, including $30 million in punitive damages. "We believe it was the largest employment verdict in the country last year," deRubertis said.

In March, the judge cut the punitives to $10 million. Both sides have appealed.

But the case and the verdict may be making a difference. "The verdict really was heard by the nursing community," Prainito said. On social media, "nurses were very happy for the case, for Maria, for the result and for these issues to be heard because so many nurses face chronic understaffing in the hospital."

"It shows them that they should not be afraid to speak up when [problems] happen because these are serious issues that should be taken seriously."

More specifically, Prainito said she had heard from various people in the medical community that the Kaiser Woodland Hills hospital has now made changes, including hiring additional staff.

DeRubertis said the verdict is important because "there has been a very unfortunate shift in medicine over the last couple of decades where the business of medicine is taking over from medicine as medicine."

"There's absolutely no reason for understaffing other than profitmaking," he said.

-- Don DeBenedictis