ROBERT Wascher, M.D. began working as a cancer surgeon for Southern California Permanente Medical Group (“Kaiser”) in 2009. He was the only specialty-trained cancer surgeon for Kaiser’s 440,000 patients in Orange County. Dr. Wascher expressed concern to Kaiser that non-trained surgeons were allowed to perform complex cancer surgeries resulting in high death rates among patients. He also repeatedly informed management that patient care was suffering due to lack of timely access to surgical services causing long delays in surgeries to critical cancer patients.
Dr. Wascher continued efforts to improve patient care were met with ostracism, ridicule, and threats that he will not be made a partner. He complained to Kaiser’s Human Resources that he was being harassed and retaliated, but HR did nothing to prevent or remedy the situation.
Towards the end, he wrote the medical director explaining his efforts and asking for support in his continuing advocacy for patient care. However, he was instead told that he will not be promoted as a partner at Kaiser, and that he will be terminated by August 2011. And so he was.
After his termination, he sued Kaiser for retaliation, wrongful termination, and defamation. He claimed that Kaiser’s conduct caused him extreme emotional distress since he felt responsible for the well-being of his patients. Kaiser argued that he did not “fit in well” with the department.
A 12-person jury listened to trial testimonies and arguments for 7 days. After deliberating for 3 days, they eventually found in favor of Dr. Wascher on the retaliation and defamation claims, awarding him $1,750,000. They also found that Kaiser acted with malice, which entitles Dr. Wascher for additional punitive damages.
One of the things an employee must prove in a retaliation claim is that the employee engaged in protected activity. Under the law, engaging in “protected activity” means that the employee must complain or oppose a practice which is forbidden by law (e.g. sex, race, or age discrimination). Courts have held that “protected activity” includes complaints or opposition to conduct the employee “reasonably” and in “good faith” believes to be unlawful, even if the conduct is not actually prohibited under the law. In the case of Dr. Wascher, his “protected activity” was his repeated expressions of concerns regarding the quality of patient care at Kaiser.
A lot of employees go to work believing in their vocation – whether they be doctors, nurses, drivers, sales reps, or caregivers – and they try to do the right thing for their patients or their clients. It is unfortunate if they end up working for employers who take shortcuts that violate the law (or just violate human decency). In the face of a retaliating employer, what can a lowly employee do? Dr. Wascher, a highly accomplished surgeon himself, characterized his struggle as a “David versus Goliath” scenario. For a lot of employees who are nowhere near his pay grade, this may be the case.
Fortunately, employees have remedies under the law. Employees who prove they were retaliated and wrongfully terminated may recover loss of earnings, emotional distress, and in certain cases, attorneys’ fees and costs, and punitive damages. It would not hurt such employees to consult with an experienced employment attorney to see if they can use the protections of the law to topple this particular Goliath.
***
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
***
C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.