Kaiser Permanente found liable in retaliation case

From the L.A. Times:

By Charles Ornstein, Times Staff Writer
June 3, 2006

A Los Angeles County jury found Friday that Kaiser Permanente retaliated against one of its emergency room physicians after he raised concerns about the quality of care at Kaiser’s Bellflower Medical Center.

Kaiser’s affiliated medical group placed Dr. Mark L. Woods on administrative leave and reduced his pay in 2003 after he complained about filthy treatment rooms, delays in care and a shortage of supplies, jurors said. On a 9-3 vote, they awarded Woods $200,000 for past economic losses.

The Bellflower hospital is the same one that in March was accused of dumping a patient on the streets of skid row after she was discharged from its care. A Los Angeles Police Department official said at the time that a taxicab had taken the woman, wearing a hospital gown and slippers, to the downtown Los Angeles area against her will. Kaiser apologized.

Friday’s courtroom verdict was unusual, because Kaiser and its affiliated Permanente physicians group generally try to force lawsuits into binding arbitration, which is not open to the public. The judge in Woods’ case, however, ruled that the arbitration agreement was “unconscionable” and unenforceable. The arbitration provision has since been changed.

The case publicly spotlighted the problems at the Bellflower hospital. In one e-mail from May 2003, Woods wrote that a patient found a urinal containing someone else’s urine on a nightstand in his treatment room.

In other e-mails, Woods detailed bloody instruments left in the sink of a treatment room and a shortage of nitroglycerin, epinephrine, resuscitation bags and other supplies.

“This is a reoccurring dangerous trend and to date you have offered no permanent solution,” Woods wrote in a January 2003 e-mail to a Kaiser director. “What is the next step?”

During the trial and in court papers, Kaiser and the Permanente medical group maintained that the discipline taken against Woods in late 2003 was appropriate, because he allegedly assaulted Dr. Steve Nguyen, then chief of the emergency service. Defense lawyers also said that Woods had been the subject of sexual harassment complaints and that his conduct had been deemed inappropriate.

“We respectfully disagree with the jury’s verdict,” Kaiser spokeswoman Socorro Serrano said in a statement. “We encourage our physicians and employees to advocate for improving patient care whenever and wherever possible, and we do not condone or engage in any retaliation against individuals for taking part in protected patient advocacy.”

Serrano said Kaiser was pleased that the jury rejected Woods’ other retaliation claims and did not find that the Permanente medical group acted with malice.

Woods had worked at the Bellflower hospital since 1990 and had received above-average ratings from patients and fellow physicians, court exhibits show. In late 2004, a year after he was placed on leave, Woods was reassigned to Kaiser’s Fontana hospital.

While jurors were deliberating, and unbeknown to them, Woods said the Fontana hospital’s medical group Thursday voted overwhelmingly to terminate him as a partner. His attorney, Charles T. Mathews, said he would file another lawsuit as a result of that action.

“Now they’re going to cut him off and kick him out,” Mathews said. “His damages are cataclysmically larger now, and they’re directly related to his filing a claim for retaliation.”

Most jurors said they believed that Woods was a strong advocate for his patients and that Kaiser did not take his concerns seriously enough.

“Dr. Woods is the only one that really stood up,” said juror Bertha Salinas, 47, of Los Angeles. “He put his job in jeopardy and his future, but he stood up.”

Juror Denise Nitinthorn, 36, of Temple City said she would consider dropping her Kaiser insurance based on what she had heard in the case.

“I’m disgusted,” she said. “As far as Kaiser, I think they need to step up and do what they need to do to correct the mistakes.”

Woods said he was concerned that his message would be lost on Kaiser because of the size of the jury’s award.

“The only way to get Kaiser to really wake up is to make them pay money that would get their attention,” he said.

Indeed, Kaiser spokeswoman Serrano noted that “the damages the jury awarded Dr. Woods represented a very small fraction of what he had been demanding from us as compensation.”

Evidence gathered by Woods’ lawyers showed that their client wasn’t the only one complaining about problems at Kaiser Bellflower.

Nguyen, Woods’ boss, wrote in a September 2002 mass e-mail, “As of today, I still have complaints and personally witnessed bodily fluids from previous patients when I examined the current patient in the room?. I am tired of writing people up for not doing their jobs.”

Emergency department clinical director Russell Lo Bue wrote that he, too, was flustered by the hospital’s inability to ensure that the emergency room had proper supplies.

“Frankly I do not understand why an organization of our size can not get this problem solved,” he wrote in a September 2003 e-mail to colleagues. “My nurses are upset and threatening to leave because they have to hunt and beg for basic equipment to care for ED patients. The ED physicians are beginning to voice their dissatisfaction with the situation.

“Everyone is tired of hearing me say, ‘It will get better. Just give the system a little more time.’ ”

Serrano said any problems at Bellflower’s emergency room had been corrected by October 2003, when an inspection by a national accrediting group gave the hospital its highest rating.

Woods and his lawyers contended that Kaiser, rather than fixing the problems, tried to cover them up. In several memos and e-mails, Kaiser officials discouraged Woods from putting his complaints in e-mail form, saying they could be used in lawsuits.

“E-mail is not conducive to the necessary discussion and can be detrimental if sent or forwarded to parties who are not solely concerned with quality improvement,” area medical director Dr. Martin Gilbert warned Woods in a July 2003 certified letter.

“I therefore ask you as of this date to stop using e-mail for these purposes.”

Update June 19, 2006 — Attorney Charles T. Mathews, Esq. writes:

We are the lawyers who sued Kaiser successfully for Dr. Mark Woods MD, an 18 year veteran KP ER doctor who protested shoddy patient care, cuts in services etc. and was retaliated against. The day before the verdict was announced, they fired him. Round II is about to start. We are representing several Kaiser patient advocates who have been retaliated against by KP. Web site