Late Friday evening, Justen received an email from HR leader Wayne Cassard of Kaiser Foundation Health Plan that attempted to bully him into an interrogation "investigative interview" without the benefit of counsel or a written record. This email THREATENED to convert Justen to unpaid administrative leave if he didn't comply.
Note that Justen does not actually work for KFHP (he works for the Southern California Permanente Medical Group which contracts with KFHP), and the email was issued late Friday with a Monday deadline in a blatant attempt to reduce the time Justen would have to seek advice.
Justen opted not to participate in this ham-handed attempt at a set up, and thus he was placed on "unpaid leave" yesterday (Tuesday, Dec. 19). Unpaid leave is an interesting concept: if Kaiser retains any authority to compel him, does that constitute slavery? If Kaiser is no longer acting as Justen's employer, then he has been effectively terminated and should have an iron-clad wrongful termination claim, given Kaiser's published "non-retaliation" policies.
Justen has now issued a statement about his experience with Kaiser's faux investigation procedures. The most interesting revelation is that Kaiser CEO George Halvorson pushed to retaliate against Justen immediately, but Justen's employer demurred and attempted to insulate itself from the wrongful termination issues. Halvorson's crew then put together their own investigation so they could circumvent and preempt SCPMG's HR procedures. In Justen's words:
On November 3, George Halvorson demanded that I be terminated immediately. In an attempt to limit its legal liability, my employer, SCPMG refused. Instead, KFHP is now taking advantage of essentially-complete leeway to attempt to threaten and coerce my "compliance" with a process that I have reasonably objected to and that, I believe, is being conducted with little integrity and even less objectivity.
...It is clear to me that it is time for our organization to ensure that the interests of Kaiser Permanente are being protected, not the interests of George Halvorson.
...If you believe, as I do, that my employer, the Southern California Permanente Medical Group, must ensure that this process is conducted thoroughly, accurately, and objectively, with integrity and honesty, then please, share your concerns with the SCPMG Board of Directors, and please ask them to step in to ensure these problems are immediately corrected. Please email Dean Chang, secretary of the SCPMG Board of Directors, or call his office at 626 405-6287.
I would like to point out that Justen's experience with Kaiser are COMMON and WIDESPREAD. Kaiser's efforts to wear Justen down by drawing out the investigation process, to isolate Justen and game his disadvantages, to retaliate against Justen and whip out the overt threats when more discreet attempts at bullying failed - these tactics have all been experienced by many other workers AND patients who are subjected to Kaiser's rigged arbitration system. This persistant bad behavior of Kaiser's is what is fueling the complaints, the blogging, and the desperate attempts to put aside arbitration and file real lawsuits against Kaiser.
I hope Justen's brave decision to allow the email from Cassard to be published and present his own account of Kaiser's bully tactics over the past two months will raise public awareness about these problems. Better yet, I hope the public is stirred to OUTRAGE as they finally realize how Kaiser's organizational problems damage patient care and drive up the cost of health care for everyone.
Update: Kaiser is responding to media questions about the retaliation against Justen with lame prepared statements.
Update 2: In light of the IRS questions being raised, Kaiser employees who have access to accounting-related evidence might want to think about whether they're in a position to bring a qui tam suit. Just recently another Kaiser employee got $225,000 out of a qui tam action.
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I just read a recent case of Kaiser legal harassment of an injured employee. The issues involved in Donna Yee-Sanchez vs. Permanente Medical Group are so crucial that it's listed under the significant panel decisions on the Workers' Compensation Appeals Board web site. Since anyone can read the background and the legal opinion regarding this case, I'm just going to cover some of the slimy Kaiser tactics revealed here.
* The worker didn't have a lawyer and could have been tricked by Kaiser into doing something that was only in their interest and might have deprived her of her rights at any time.
* Kaiser didn't accept the initial diagnosis of a qualified physician, and they demanded a "redo" in which they forced the injured worker to choose from three Kaiser-approved physicians.
* When the second physician confirmed disability, Kaiser went into legal-harassment mode.
* The injured worker refrained from submitting to a deposition because Kaiser hadn't filed the necessary application to initate procedures with the Worker's Comp board (i.e., Kaiser was trying to be legalistically intimidating without any judicial oversight in play).
* Kaiser managed to get a deposition out of the diagnosing physician even through they didn't have any right to it.
* Kaiser continued to try to squirm out of initiating formal procedures: i.e., they wanted to get away with legal-esque intimidation without adhering to any rules or procedural oversight.
* If I'm reading this correctly, the diagnosis of the second doctor may have entitled the worker to higher disability compensation - but Kaiser, after putting the worker through the hassle of the second diagnosis, was still paying the original rate.
* The only thing this Worker's Comp board decision does is offer the remedy to address Kaiser's sleazy tactics: the worker can apply to initiate the WCAB process herself - and then there would be some oversight with the power to sanction Kaiser's bad behavior. While the injured worker might be worried about engaging with this process without an attorney, the board notes that sanctions might cover attorney fees. Still, since it's an adversarial process, it's not a sure thing that attorney fees would be covered. I'm curious about what the worker decided to do.
The Workers Comp board provides an excellent summary of the whole tangle:
...it appears (without actually deciding the question) that PMG far overstepped the bounds of proper and non-compelled investigation and ventured far into the realm of unquestionably unlawful pre-application discovery....[I]t is only the jurisdiction and authority of the WCAB that permits depositions to be noticed and taken (and subpoenas to be issued) in workers’ compensation matters....Accordingly, once an application is filed (if one has not been filed already), the PWCJ (or any other WCJ ultimately assigned to the case) should consider exercising the post-application remedies discussed above, including but not limited to monetary and evidentiary sanctions, for PMG’s apparent pre-application abuses of discovery.
Gee, this sort of reminds me of Kaiser spending two months investigating me after the Office of Civil Rights gave them my name as a whistleblower, without ever checking the prominent telltale dates on the documents involved or attempting to contact me for clarification.
Basically, Kaiser can afford lots of lawyers, so they can afford to game the system and bully people with just the threat of a lawyer attack (implied by interrogations depositions).
A further issue in the San Francisco Bay Area (i.e. Kaiser Territory), just about every lawyer who even touches on health care in the course of their practice has accepted work from Kaiser - making it very difficult for any individual who is trying to defend themselves to obtain a lawyer even if they can afford $300-$500/hr. (because conflict of interest could get the lawyer disbarred). Even if your case has nothing to do with health care, the "health care angle" (and Kaiser's deep pockets) will scare off lawyers who pursue other specialties.
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Did anyone else notice that the Business Times is now speculating on Kaiser's potential financial insolvency?
And here's another article on Kaiser turning tail when the going gets rough for patients. This time the victim is a boy with brain cancer.
In other news, Kaiser embezzler, political bribe-taker, and apparent massage-addict Leland Wong failed to overturn his indictment. Dear Kaiser Honchos - this sort of malfeasance TRICKLES DOWN FROM THE TOP!!!
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I'm glad that the media also sees through Kaiser's PR strategy to belittle the bearer of bad news.
It's curious, though, that the Modern Healthcare article uses a Kaiser executive in Hawaii to comment on Justen's experience with outages that occured in the Southern California region. Hawaii is also an interesting choice because it was the first region to attempt to roll out HealthConnect, and the Hawaii region has also been systematically raising membership fees to cover technology costs. Since the millions in losses in the Northwest can also be linked to a "technical glitch", why aren't Kaiser members objecting that these costs are being passed on to them?
Here's another interesting comment from HisTalk:
All of the pieces for members.kp.org, except physician messaging, are actually from the legacy systems. Lab results, appointment times, prescriptions, are all from the legacy apps (or in the case of prescriptions and refills, from the third-party pharmacy app they chose to integrated into the Epic suite). Epic is doing some work on helping KP integrate some of those parts into a more seamless "EpicWeb experience," but I don't think Epic can yet take credit for the KP member portal features. Last I heard, that's sometime into 2008 right now for most of the regions (other than California, which might be 2009 at this point).
I've been wondering whether HealthConnect was still serving as a shiny brand facade that makes a patchwork of legacy systems look like a cutting-edge out-of-the-box system. This was certainly what the EMR (then called the AMR - Automated Medical Record - it was changed to match Newt Gingrich's language) looked like when I worked for Kaiser. I've raised this issue many times: see, for instance, here and here and here.
In other news, Kaiser's acquisition of a large medical group in Ventura County means that 165 people will lose their job.
Update: Kaiser has now paid Google to amplify their HealthConnect propaganda messages with top-of-search-results ad placement. They better hope people see the ad and click, because no one is going to remember the 23 LETTER domain name!
Here's another KP LAWYER WATCH: I found another case where Kaiser may or may not have had cause to address an employee's medical mistakes - but the employee complained her manager was just exaggerating some "clerical errors" to use them as a pretext for firing her in retaliation for an earlier discrimination claim. After the employee lost at arbitration, she tried to go to the court system. As usual, the Kaiser lawyers bamboozled the court into giving them a Summary Judgment despite numerous disputes of fact. The employee then had to pay for (and go through the hassle of) an appeal:
Appellant [the Kaiser employee] was barred from referencing her termination at trial, and the trial was limited to the claim that certain pre-termination counseling and discipline had been discriminatory or retaliatory...Appellant contends she was denied a fair trial because of respondent's continuous claims that her errors could have killed a patient. Appellant cites to this court's unpublished decision noting that all appellant's errors could be characterized as "simply errors in record-keeping" and to respondent's post-remand admissions that none of the incidents which it relied on in terminating her employment resulted in any adverse consequences to a patient...Appellant contends she was prejudiced by the court's restriction on her right to cross-examine respondent's supervisors and expert witness on the comparability of her errors and those of her non-terminated peers.
The employee seems to have had either a really lazy or a really incompetent lawyer: the appeal judges punished her for just listing the errors and not providing adequate legal authorities:
...for the most part, appellant's briefs consist of descriptions of alleged errors without any nexus between the alleged error and legal authority or supporting argument. "This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record."
The employee's lawyer also didn't submit a full transcript of the original trial: this is an expensive thing (because you have to pay the court reporter) that most lawyers would have insisted on doing. This is one of the inexcusably stupid aspects of the legal system that prevents poor people from being able to appeal even if the judge was on crack when he gave his ruling. It's stupid because the transcript could be preserved electronically: the trial could have been recorded, transcribed with Dragon Dictate, and preserved in PDF format where judges could simply refer to it without imposing copying and administrative costs on the parties to the lawsuit.
Anyway, when the employee dared to appeal in 2001, the court slammed her with Kaiser's $51,944 in fees and costs. I think she has a lot to complain about here, but if she tries to take it back to court, she will have to go through years of more court room hassle only to be hit with more fees and costs. The worst part is that the public will just assume the loss of the trial means she had endangered patients with her medical errors. Looking at the basis for her appeal, though, it's possible that she took some clerical shortcuts at a busy time, and her manager took advantage of it to retaliate for an earlier discrimination claim. The court system failed to illuminate the issue because it focused on the inadequacy of her lawyer's skills and whether that inadequacy would allow the judges to squirm out of considering the justice of the situation.
Also, at one point Kaiser offered to settle the case for $101 - given the costs in livelihood and years of legal wrangling (1997-2003) incurred by the employee, this was a blatant and cruel insult. That alone should have raised some eyebrows. It looks like the "costs" portion of the adverse judgment was reversed in 2003 - but the employee still had to pay for her own side of the lawsuit and "non-discretionary costs" (whatever that means) on top of the loss of livelihood that triggered the legal action in the first place.
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An Australian court has issued an arrest warrant for Jayant "Dr. Death" Patel.
A government inquiry found that Jayant Patel of Portland may have contributed directly to 13 deaths due to an "unacceptable level of care" at Bundaberg Base Hospital in the state of Queensland while he was director of surgery there from 2003 to 2005....Patel was a surgeon at Kaiser Permanente in Portland from 1989 to 2001. After an internal investigation, Kaiser restricted him from doing complex operations in 1998. The Board of Medcical Examiners disciplined him for negligence in 2000. He was sued for malpractice or wrongful death eight times during his time at Kaiser. Kaiser settled five of those suits, paying out $1.8 million in two.
More at http://www.kaiserthrive.org
Here's another fairly recent (2002-03) KP LAWYER WATCH case. In 2001, a Kaiser cytotechnologist sued Kaiser Permanente for wrongful termination. Kaiser had given four slide misreadings as their reason for termination, but they had scraped these together from before 1998 and disregarded that employee's performance had been up to snuff since then. An arbitrator restored the employee to her job, but didn't restore backpay as a retroactive punishment for her pre-1998 mistakes. The employee then filed a lawsuit, arguing that her Union representative should never have allowed the introduction of the old slide misreadings. She also wanted statistics on other terminations to see if Kaiser had been allowed to reach into the past to use (corrected) mistakes to file other people.
Kaiser then filed for sanctions against the employee's LAWYER - and the District Court (Central District of California) sanctioned him $4,945 to cover Kaiser's fees! Kaiser won this sanction by hair-splitting:
Even if all the allegations are taken as true, the facts do not support a breach of the duty of fair representation under established Supreme Court precedent....the Union’s failure to argue...could not constitute a breach of the duty of fair representation....the Union succeeded in obtaining reinstatement for her based on its interpretation of the Agreement....[C]ounsel says that those paragraphs in the complaint meant only that no Permanente employee had ever been terminated for errors that were more than one year old, not that no Permanente employee had ever been terminated for misreading slides.
The lawyer appealed, and the appeals court vacated the sanctions and suggested that the District Court had folded outsided considerations into their decision and was acting on a grudge against the lawyer:
As part of its justification for the sanctions order, the court also referred to counsel’s "history of prior sanctions, particularly his (mis)representations as to the scope and nature of that history"....Although the district court occasionally distanced itself from explicitly relying on such past conduct, the lengthy discussion of the parties’ history implies that past conduct may have contributed to the reasoning behind the sanctions award.
The lawyer asked to re-argue the case before the District Court. HOWEVER, in 2003, the District Court replied that they had already heard everything and then AGAIN sanctioned the lawyer, ordering him to PAY KAISER $3,055 - apparently just for appealing their original sanctions and trying to represent his client to the best of his ability. Since the District Court ordered both the first and second sanction, dare I suggest this was petty sour grapes on the part of the judges? I noticed elsewhere they actually ordered a levy of the fees the lawyer had received from the Dept. of Fair Employment and Housing for representing the Kaiser employee.
So think about it...how many lawyers are going to be willing to represent Kaiser employees in wrongful termination cases if Kaiser has been successful in inflicting monetary sanctions on them? And what's up with these judges? We really need to start shining a spotlight on the court system here.
Comment received via email: One wonders whether they [the judges] are looking forward to a life of ease in retirement, serving as Kaiser "neutral" arbitrators, and they're just showing their mala fides to their potential employer. It would be a serious problem if the corruption of the Kaiser arbitration system seeped in this way into the court system!
Error Correction or Revisionist History? Several news reports this morning said Kaiser could have prevented a woman from being beaten to death with a baseball bat if they had admitted her psychotic son. However, several hours later, Kaiser was scrubbed from some of the articles: "a Kaiser Permanente hospital" has been changed to "a hospital". Here's the proof. Is this CBS correcting an error or Kaiser PR buying/pressuring for revisionist history?
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Bruce Friedman of Lab Soft News has his finger on the pulse of the EMR game. I'm sure it's mere coincidence that his scenario covers the highlights of the recent Kaiserpocalypse. I just saw a comment that pointed out that the Department of Defense has been wasting $5-$6 billion dollars of the taxpayer's money on an even bigger EMR disaster. And, quel surprise, the honcho in charge, William Winkenwerder Jr., comes from the Kaiser ranks. This perhaps explains why he tried to fix the EMR's problems by changing the name/acronym from CHCS II to AHLTA. ;-)
I wonder how much Kaiser is paying this guy?
Today's KP LAWYER WATCH is a sordid story of what happens when Kaiser doctors, who enroll their families in the Kaiser system, get tumbled into the arbitration system. A Kaiser doctor's wife suffered renal failure, and he determined it was because she had been given the wrong drug. Being a doctor, he thought he could just point this out to the arbitrator. However, the Kaiser lawyers argued that his specialty didn't cover his wife's condition, so he couldn't qualify as a medical expert. For some strange reason the arbitration judge bought the doctors-don't-know-anything-beyond-their-narrow-specialty argument, so the doctor then went to the regular court system to try to address the unfairness of the arbitration process. It looks like he didn't hire a lawyer - probably because he figured the judges in the regular court system would notice he had a medical degree and quickly order a new arbitration. The plaintiffs evidently lost their court case - the document below is from their appeal, which concluded just a couple of weeks ago.
Considering that the judges admit that they refused to look at certain evidence and could only act within a very narrow sphere and are supposed to give pro per plaintiffs the maximum latitude, this judicial opinion is incredibly mean-spirited and rude. Also keep in mind the plaintiffs were paying to be trashed - the court system is ridiculously expensive even without a lawyer. I think the plaintiffs should speedily complain to the nearest judicial oversight commission (though they will probably just stick up for their brother-in-robes, too).
I'm going to highlight in bold where the judges turn "judgmental", despite the fact their own point is they don't really know what happened. Click on the link below to get the full text (it's long - practically the whole document):
( Check out the Judges-Turned-Mega-Jerks... )
For people who have never been through Kaiser's arbitration process, this might look like a situation of he-said she-said that somehow defaults to support the arbitration judge. However, once you talk to a few people who have actually been through Kaiser's arbitration process, you will find the same issues coming up time and time after time: Kaiser doctors lied, Kaiser lawyers played dirty tricks, and the arbitrator showed favoritism toward Kaiser by refusing to acknowledge or address these problems.
To give a specific example from an arbitration that's going on right now: I know a woman who was the victim of a blatant HIPAA violation by Kaiser - and she has the evidence to show that Kaiser's lawyer lied about how the violation happened, too. However, par for the course, neither the Feds or State agencies are addressing the matter swiftly. When she attempted to complain to the Bar Association, she was told "the matter does not warrant disciplinary action." The problem is that this HIPAA violation has corrupted the arbitration process, and the woman, who was abandoned by a slacker lawyer, is now stuck representing herself and the arbitration judge isn't listening to her. So what will probably happen is that the woman will be shafted by the arbitration process, and then if she attempts to go to the regular courts, she will be treated like dirt (like the plaintiff horror story above).
In sum, judges in the regular court system seem unaware of the widespread perception of fraud and corruption in the arbitration process, supported as far as I can tell by every patient ever forced to go through that process, and in the absence of a signed confession from the arbitration judge they prefer to belittle plaintiffs.
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Well, the Kaiser, Epic, and Citrix PR teams all had their chance at the big spin last week, but ComputerWorld is unimpressed. This rung true for me more than any other comment I've seen on the EMR fiasco:
People in the field are frustrated, and the people in IT are just as frustrated because this was a solution forced upon us and was not an IT solution...
It looks like health care purchasers are finally starting to ask the right questions, too.
Today I'm also going to start a new series called KP LAWYER WATCH. The idea is to shine a light on how Kaiser lawyers game the legal system and how judges treat Kaiser cases. My hope is that other people who are involved in legal tangles with Kaiser will get some insight into their tricks (which have long been hidden by confidentiality agreements) and have a better chance at getting justice.
The first is a case of wrongful termination. The plaintiff was a social worker at Kaiser, and she was first harassed and then fired for reporting, on the advice of her union representative, a patient privacy violation that could be attributed to her manager. The plaintiff sued for retaliation and wrongful termination, took the case to trial, and the jury found in her favor. In 2003, the jury awarded the plaintiff both economic damages (including lost compensation) and compensation for emotional distress.
[The plaintiff had been]...raising patient care issues regarding mishandling and loss of patients charts, medical records, including orders[,] failure to provide equipment and supplies to the patient timely, breach of patient confidentiality, alteration of patient records. The jury also found [the plaintiff] had proven, by clear and convincing evidence that...[her manager] had acted with malice, fraud or oppression.
However, when the plaintiff asked for attorney fees and costs, Kaiser was determined to make her pay for the costs for resisting their retaliation. Kaiser convinced the court to deny the award of costs (apparently on some technicality relating to the fact the plaintiff had a new lawyer), and then Kaiser proceeded to appeal the whole judgment. So the plaintiff has had to pay for the new lawyer and pay for yet more court costs knowing that she's not even going to be reimbursed for the original trial.
Here is Kaiser's argument for the appeal:
[Kaiser contended that]...[the plaintiff] had failed to prove her common law cause of action because [the plaintiff] had failed to articulate the constitutional, statutory, or regulatory basis for the cause of action and failed to provide a nexus between the termination and Kaiser’s violation of any constitutional, statutory, or regulatory provision. Labor Code section 1102.5, the whistleblower protection statute, precludes employers from retaliating against an employee who communicates with governmental or law enforcement agencies where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation."
In other words, Kaiser thinks it's okay to retaliate as long as the plaintiff went to Kaiser's internal authorities instead of federal or law enforcement agencies. Current Kaiser employees take note - go to the feds first if you want to make sure you'll be treated like a whistleblower!
Here's how the judges ruled on the attorney fees and costs:
During the hearing on [the plaintiff]’s motion for attorney fees and costs, the trial court stated it did not “think . . . that the primary purpose of bringing this case was to benefit the public, it was for [the plaintiff] to get damages and/or get some kind of compensation for what happened to her.”
As the trial court found, the jury verdict in favor of [the plaintiff] did not confer a significant benefit upon the general public. Rather, it was a suit primarily brought to compensate [the plaintiff] for her losses, including lost wages. (See e.g., Flannery v. California Highway Patrol, supra, 61 Cal.App.4th at p. 635 [fees under section 1021.5 rejected because plaintiff’s primary purpose was vindication of her own personal right and economic interest]; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1170-1171 [sexual harassment case brought to vindicate plaintiff’s personal rights and economic interests]; compare with Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1362 [action helped preserve a significant public benefit].) Thus, the trial court did not abuse its discretion in denying the motion for attorney fees pursuant to Code of Civil Procedure section 1021.5.
...Health and Safety Code section 1432 prohibited long-term health care facilities from discriminating or retaliating against patients or employees of those facilities who complained or cooperated with governmental agencies relating to the case, services, or conditions at these facilities. Neither the current version of Health and Safety Code section 1432, nor the version in effect in 1999 had an attorney fee provision.
...Pursuant to Section 1278.5..."An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case."
...In her initial complaint and in her subsequently filed amended complaint [the plaintiff] did not include a cause of action based upon Section 1278.5, a statute specifically designed to expand the protections provided by other statutes (Note: Section 1278.5 was enacted in 1999, and became effective January 1, 2000 ~ CorpHQ). [The plaintiff] only sued on a common law cause of action for wrongful termination in violation of public policy and as to that cause of action, [the plaintiff] did not seek attorney fees. It does not appear that [the plaintiff] ever sought to add a statutory cause of action for wrongful termination. It does not appear that [the plaintiff] sought to amend her complaint to request attorney fees with regard to her common law wrongful termination cause of action. As we discussed in Case No. B167858, [the plaintiff] tethered her common law cause of action to Labor Code section 1102.5, and possibly to Title 22. Even though her complaint was filed seven months after the effective date of Section 1278.5, [the plaintiff] never suggested Kaiser violated Section 1278.5, or that her wrongful discharge cause of action was tethered to this Health and Safety Code section. [the plaintiff] raised Section 1278.5 only after trial, in her motion for attorney fees and costs.
Thus, [the plaintiff] never pursued a statutory cause of action for wrongful termination. [the plaintiff] did not pursue her wrongful termination case pursuant to Section 1278.5. (§ 1278.5, subd. (g) [stating that employee who was “discriminated against in employment pursuant to this section shall be entitled to...the legal costs associated with pursuing the case”]; cf. U. S. v. Stone Container Corp. (9th Cir. 1999) 196 F.3d 1066, 1068-1069 [party seeking attorney fees under particular statute must have brought claim “pursuant to” that statute, as the statute specified].) Rather, [the plaintiff] rested her wrongful discharge cause of action solely upon a common law cause of action in which she did not seek attorney fees. Having prevailed on that common law cause of action, [the plaintiff] is foreclosed from belatedly arguing (after a verdict is rendered) that she is entitled to attorney fees and costs based upon a statutory claim.
For reasons unbeknown to this court, [the plaintiff] never put before the jury the suggestion that Kaiser’s actions violated Section 1278.5, even though the statute was enacted prior to the complaint being filed and even though such an argument would parallel many of her Title 22 and Labor Code section 1102.5 arguments. We will not second guess this tactical decision. [the plaintiff] did not raise a statutory cause of action for wrongful termination. Thus, she cannot seek statutory remedies under that statute.
In light of our conclusion, we need not address [the plaintiff]’s argument that a retroactive application of subdivision (g) of Section 1278.5 enables her to obtain attorney fees and costs. For this proposition, [the plaintiff] cites to a number of cases including, Bradley v. Richmond School Board (1974) 416 U.S. 696, California Housing Finance Agency v. E.R. Fairway Associates I (1995) 37 Cal.App.4th 1508, Harbor View Hills Community Assn. v. Torley (1992) 5 Cal.App.4th 343, Kievlan v. Dahlberg Electronics, Inc. (1978) 78 Cal.App.3d 951, and Olson v. Hickman (1972) 25 Cal.App.3d 920. These cases and their discussion do not address the facts before us.
Thus, the trial court did not err in denying [the plaintiff]’s request for attorney fees and costs pursuant to Section 1278.5.
DISPOSITION
The order denying attorney fees and costs is affirmed. [The plaintiff] is to pay costs on appeal.
Am I the only one UTTERLY DISGUSTED with the way the court system works?
A couple of weenie judges have decided to ignore the jury's clear intent to sanction Kaiser for retaliation in favor of blaming the plaintiff for not bringing up a new statute during the original trial.
So it's clear that the courts have thrown their weight behind the idea that the victims of retaliation have to pay for justice. That's unconscionable. Note that it's now been seven years since the plaintiff lost her job, and legal costs will doubtlessly eat away the plaintiff's original award. And that's Kaiser's plan: to make sure that no one really gets compensated for retaliation, and to send a message that victims will have to pay and pay and pay for years and years and years to pursue the complaint.
More Kaiser lawsuit strategy and chicanery to come!
Disclaimer: Lawsuit documents have not been obtained from any party to the action - all documents have been obtained from the public domain.
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