Radiologist wins $11.4 million judgment against Kaiser in retaliation case

February 25, 2009

A dispute involving complaints about poor patient care and charges of political retaliation by Kaiser Permanente Medical Group has led to $11.4 million court judgment for a southern California radiologist.

A dispute involving complaints about poor patient care and charges of political retaliation by Kaiser Permanente Medical Group has led to $11.4 million court judgment for a southern California radiologist.

The case ended in December 2008 with a decision by a Los Angeles Superior Court jury favoring Dr. Michael Martinucci. It began as internal management problems between the radiologist and employees at Kaiser Sunset hospital in Hollywood, CA. It ultimately escalated to charges of racism and sexual harassment against Martinucci that the jury rejected.

Martinucci was awarded $7.5 million in punitive damages and $3.9 million in compensatory damages.

Martinucci was hired by the Kaiser medical group in 2003 and assigned to the radiology department at the Kaiser Sunset facility where he developed new and updated clinical protocols for ultrasound, CT, and gastrointestinal imaging. According to court records, some radiologic technologists resisted adopting his protocols and patient advocacy efforts. Martinucci also found that staffing, training, and supervision were so deficient they represented a hazard to patients, court documents show. He reprimanded several technologists in 2005 for unsatisfactory performance.

Meanwhile, Martinucci also ran into problems with his clinical supervisors at Kaiser. He was asked perform screening mammograms, CT angiography, and MR cardiac imaging, despite personnel records indicating he was inexperienced with such procedures, according to the court complaint. Martinucci requested a refresher course in mammogram interpretation to brush up on skills he not applied since his residency in 1996.

Before long, reports surfaced that Martinucci made racial comments and sexually harassed a male technologist, according to the complaint.

The accusations led to a December 2006 meeting involving Martinucci and Kaiser administrators. But a valid investigation before the meeting never took place, and Kaiser denied Martinucci's request for information about his supposed accusers, said his lawyer, Charles T. Mathews in an interview with Diagnostic Imaging. Kaiser officials threatened to fire Martinucci if he refused to resign.

Martinucci resigned in February 2006 and later sued the health organization for retaliation and defamation. The jury ruled that medical personnel had acted with malice in its dealings with Martinucci. It concluded that Martinucci's advocacy efforts were a motivating factor in Kaiser's threats to terminate his employment.

A recently enacted California law that expressly prohibits retaliation against a physician who advocates for medically appropriate healthcare for patients factored into the outcome, Mathews said. It allows physicians to seek damages for employment termination or other forms of retaliation by a hospital entity or health plan. While not all states have such whistle-blower statutes specific to healthcare, doctors can seek similar recourse using traditional defamation and retaliation claims.

Martinucci did not reply to requests for an interview from Diagnostic Imaging.

Kaiser spokesperson Dr. David Lerman called the verdict "misguided."

"We're hopeful the trial court will make rulings in the next few days that will significantly change the outcome of this case," he said an interview with Diagnostic Imaging. "We encouraged and supported Dr. Martinucci in his efforts to improve the quality of care in his department. He was asked to resign because of his attacks on radiologists and technicians."


Kaiser plans to appeal.