Date: 03-14-2012

Case Style: Ani Chopourian v. Catholic Healthcare West d.b.a. Mercy General Hospital and Mercy General Hospital

Case Number: 2:09-cv-02972-KJM-KJN

Judge: Kimberly J. Mueller

Court: United States District Court for the Eastern District of California (Sacramento County)

Plaintiff's Attorney: Lawrance A. Bohm, Erika M. Gaspar and Gregory R. Davenport

Defendant's Attorney: Judith "Julie" C. Martin, David Ditora and Mary G. Greene

Description: Plaintiff, Ani Chopourian, age 45, worked as a Cardiac Surgery Physician Assistant in the Cardio Vascular Operation Department of CHW’s Mercy General and Mercy San Juan Hospitals. Ms. Chopourian worked for the hospital from August 2006 until her termination on August 7, 2008. Cardiac Surgery Physician Assistants work with heart surgeons during open heart surgery by harvesting vein/artery, positioning of the heart, retraction of sternum, and other assistance in support of cardiac surgery procedures. Ms. Chopourian, high school valedictorian, holds an undergraduate degree from UCLA, a Masters of Architecture from UCLA, and a Masters of Medical Science from Yale University Medical School, Physician Associate program.

Sexual Harassment

During her employment and on a daily basis, Ms. Chopourian endured sexually inappropriate behavior in and out of the operative suite. Outside of surgery, male coworkers made repeated unwelcome and crude sexual advances and propositions. Vulgarity, obscene facial gestures, buttocks slapping, objectification of women and trash talk were daily occurrences frequently in front of or involving managers of the department. During open heart surgery in the Operative Suite unwelcome sexual behavior was a daily occurrence for a prominent heart surgeon whose daily salutation was “I’m horny.” In addition to detailed reports concerning lack of sex with his wife, this heart surgeon regularly discussed his sexual adoration of coworkers and pop stars including Shania Twain and Ashley Judd. Witnesses confirmed a Harvard educated heart surgeon also made frequent inappropriate references to women’s breasts and had a particularly misogynist attitude concerning females including pop star Rihanna, who according to this Harvard surgeon, “got what she deserved” after she was brutally beaten by pop star Chris Brown. An assistant surgeon also bantered about sex with pop stars and coworkers. According to witnesses, the assistant surgeon spoke frequently of his sexual exploits and affinity for prostitutes. Other medical staff members made frequent sexually inappropriate jokes and comments, sometimes, when patients were “crashing” during surgery.

Defendant claimed no harassment occurred and that all appropriate remedial measures were taken to prevent the harassment. However, testimony repeatedly showed the “zero tolerance” policy was not followed. During trial a CHW Vice President admitted her own violation of the sexual harassment policy by her failure to report the known conduct of the horny heart surgeon.

Hospital Whistleblower/Title VII Retaliation/Wrongful Termination in Violation of Public Policy

During her two year employment in cardiac surgery Plaintiff submitted 18 written complaints concerning patient safety, employee safety, abuse of women and hospital conditions. Numerous other reports were orally conveyed to management. In brief, Ms. Chopourian reported distinct factual circumstances including failure to provide assistant surgeon (Title XXII Cal. Reg. Requirement), unnecessary vein harvest, unnecessary broken ribs, torn veins, torn heart, needle stick, dropped radial artery, intimidation, humiliation and other verbally abusive treatment, in particular by a heart surgeon educated at the prestigious Columbia University. In addition, Ms. Chopourian complained about the failure to provide sufficient meal breaks and rest breaks in violation of state law. Plaintiff’s final complaint was stamped received by the human resources department less than one week prior to her termination. Under California whistleblowing law, any negative employment action is presumed retaliatory if made with 120 days of the adverse employment action.

Defendant claimed to have only received some of the written complaints. Moreover, Defendant claimed Plaintiff was actually terminated for not being a team player in that she allegedly slept in the break room, insisted on lunch breaks, showed up late for work and failed to report while on-call the weekend after submitting her final written complaint. (See further analysis under defamation.) Plaintiff was called out of surgery and escorted off the hospital premises by the chief of security.

The Medical Director of Cardiac Surgery Department who was also a heart surgeon and Plaintiff’s clinical supervisor was not aware of the termination before it was decided by CHW managers and leadership. According to the Medical Director, the termination was a surprise. He was disappointed to learn of the termination because Plaintiff was an excellent assistant who he considered to be an asset to the department with skills better than “most surgeons.”

Defamation and Intentional Interference with Economic Advantage

Performance write ups, internal email, and notes created by management provided the basis for internal publication of false facts concerning her work performance and professional abilities. Because of these false statements, Ms. Chopourian was unable to find work for nearly a year, at which time she began employment with Radiological Associates of Sacramento (RAS) providing gynecological surgery assistance in various hospitals, including the CHW’s Mercy San Juan Hospital. Ms. Chopourian worked for RAS for eight months until her employment ended when hospital privileges were denied by CHW’s privileging committee. Immediately after Ms. Chopourian produced evidence in support of her case during the discovery phase hospital leadership decided that her efforts to preserve evidence supported a denial of privileges. No member of the privileging review committee was aware or informed of the exception to medical privacy violation for whistleblowers provided under federal medical privacy law. The denial of Ms. Chopourian’s privileges was the first time in hospital history that a physician assistant has had a privileging application denied. After denial of her privileging and the loss of her position at RAS, Ms. Chopourian has not received an interview despite her prestigious education background and excellent clinical performance.

Meal and Rest Period Violations

Plaintiff was hired as a “non-exempt” physician assistant to be provided a meal break within the first six hours of employment. Ms. Chopourian testified that the hospital frequently failed to provide her meal break and 10 minute rest breaks as required by law.

Defendant contended that Ms. Chopourian was exempt from compliance and/or that she signed a meal waiver, however; Defendant could not locate or produce said waiver.

Injuries/Damages

Plaintiff claimed severe emotional distress before and after her termination of employment. The severe emotional distress caused significant and appreciable interference with her enjoyment of life, including sleep disorder, nightmares, digestive problems, depression, anxiety, and premature menopause. In addition, Plaintiff’s reputation had been reduced to the point of complete inability to find or maintain employment. Plaintiff’s reputation was severely harmed by false statements concerning her veracity, professional judgment and commitment to patient confidentiality. Plaintiff lives on food and monetary donations while she continues to look for employment.

Outcome: The jury unanimously decided Choupourian was subject to a hostile work environment, retaliation for protected workplace complaints, defamation and intentional interference with economic advantage. The jury found 368 meal period violations, 200 rest period violations and a provided a finding that failure to provide breaks was willful. She was awarded $167,730,488 in damages.

Plaintiff's verdict for $167 million including $39 million in compensatory
damages and $125 million in punitive damages.

Plaintiff's Experts: Charles Mahla, PhD – EconOne

Defendant's Experts: Aaron Abbott, Ph.D. – Prolumina and David Moore – Forensic Document Examiner

Comments: Editor's Comment: The jury in this case asked for a calculator early on the morning of February 29, 2012. This is generally a very bad sign for defendants.