Trial probes whether Kaiser can fire outspoken nurse for looking at medical records

Aug. 18--Ani Sanikian was a respected nurse at Kaiser Permanente Fresno and an outspoken advocate for patient care.

In 2014, she was elected by Kaiser nurses to an in-house committee that monitored nursing workload and presented concerns about patient safety to management. But when management ignored the nurses' complaints, Sanikian had to regularly challenge Lily Tang, the director of nursing practices at Kaiser.

Their complaints came to a head in March 2015 when Sanikian and other committee members marched to the office of Tang's boss, Lynn Campama, and gave her a signed petition regarding the lack of response to concerns about patient safety.

Two month later, Kaiser, upon Tang's recommendation, fired Sanikian on trumped-up charges, according to Fresno attorneys Mick Marderosian and Heather Cohen, who represents Sanikian in her wrongful termination trial in Fresno County Superior Court that began Wednesday.

Sanikian has sued the The Permanente Medical Group, a multibillion-dollar corporation of physicians who provide services to more than 11 million Kaiser Permanente members nationwide, including in Northern and Central California. Sanikian is seeking damages for wrongful termination, retaliation and defamation.

The trial in Judge Jeffrey Hamilton's courtroom is expected to take three to four weeks. Testimony resumes Monday.

Marderosian has told the jury that the evidence "will expose an organization who treats its employees poorly and covers its tracks by hiding behind vague policies, committee decisions, and so-called executive reports."

But Debbie Hemker, senior vice president and area manager for Kaiser Permanente Fresno, said Friday: "This case involves an employee who violated Kaiser Permanente's rigorous policies to protect our patients' confidential information. Accessing private medical information without authorization, as occurred in this case, is cause for termination."

Fresno attorneys David McNamara and Christina Tillman, who represent the medical group, known as TPMG, told the jury that Sanikian was fired because she looked into the medical files of three patients without authorization. "TPMG is a leader in the healthcare industry," McNamara said in his trial brief. "Its reputation depends on preserving the trust and confidentiality of its members."

McNamara told the jury that Sanikian was fired on May 12, 2015, after a thorough, independent and "good faith" investigation by Kaiser's Compliance Department.

According to a story in Pro Publica, an online news agency, health institutions have used the federal Health Insurance Portability and Accountability Act, known as HIPAA, in "protecting their own interests, not patients'."

Court records say in February 2015 a coworker saw Sanikian access the record of a patient who was receiving Dilaudid, which is as addictive as heroin. When Sanikian didn't give a valid reason for doing so, the coworker notified management.

According to McNamara, during the investigation it was discovered that Sanikian also had looked at the medical records of two other patients without "a business need," which is in violation of state and federal privacy laws.

Marderosian, however, contended in his trial brief that Sanikian had a right to look at the medical records, saying she was providing medical care to the three patients who have been identified only as Kaiser employees.

Marderosian said Sanikian had a legitimate reason to check the medical charts: she worked as a registered nurse in the Pain and Spine Clinic, which is responsible for administering opioid-based medication. Opioid medications "have the highest potential for abuse and chemical dependency," Marderosian said in his trial brief. Sanikian and other nurses are required by law to ensure patients receive proper medication, he said.

On Thursday, Marderosian told the jury that the Kaiser investigation was a sham; it was inaccurate, incomplete and done by an investigator who was not a nurse and had no clear knowledge of Sanikian's duties. "The bottom line is that TPMG wanted to fire Ani Sanikian because she was too outspoken about patient advocacy and was not willing to allow TPMG to sweep these issues under the rug," Marderosian said.

Sanikian, 46, of Fresno, started her medical career as a licensed vocational nurse at the age of 19. She began working for Kaiser in 2003 and a year later, she became a registered nurse. Around 2006, she began working in Kaiser's Pain and Spine Clinic.

On her side is Kelly Tuttle, a nurse practitioner for Kaiser who served on the nurses' committee with Sanikian. Tuttle, the sole provider for her two children, nearly cried when she told the jury on Thursday that she was scared to testify because "I'm afraid to lose my job."

Tuttle testified that nurses are terrified of Tang, calling her "a controlling, vindictive bully." (On the witness stand, Tang denied Tuttle's accusations.) Tuttle said voicing complaints to management is "like walking on land mines."

Tuttle said she and other nurses like Sanikian because she is passionate about her work and fearless when it comes to patient advocacy. Nurses are overworked, Tuttle said, because Kaiser membership has grown over the years, but staffing hasn't. In addition, Kaiser uses medical assistants in some clinics when they should be staffed by registered nurses, she said.

Accessing medical files also is an issue, Tuttle said, because years ago, an expert would teach nurses about federal and state laws regarding patient privacy and answer questions. To cut costs, Tuttle said, nurses now take an online course regarding patient privacy, which she said has led to debate in the workplace about what constitutes a violation.

On cross examination, however, Tuttle testified she is a friend of Sanikian, though not socially, and an active member in the California Nurses Association who teaches nurses about their union rights.

Tang testified that she thought Sanikian was a good, competent nurse "a majority of the time." She testified that she played a role in initiating the investigation against Sanikian and recommending her termination.

Marderosian pointed out to the jury that Tang recommended the firing of Sanikian before the investigation was completed. He then showed the jury an email that Tang had sent to a manager in the Compliance Department in April 2015, a month before Sanikian was fired. In the email, Tang wrote: "We need more information to get a complete picture."

"Your goal was to fire Ani," Marderosian told Tang as she sat on the witness stand.

"No," Tang said.

"You wanted to find whatever you could to silence a nurse who stood up for patients," Marderosian said.

"No," Tang replied. "She did not have a business need to look at the records."

In his brief, McNamara said Sanikian and other Kaiser employees receive annual training on patient confidentiality and compliance. Specifically, he said, "Employees are limited to the minimum necessary when accessing, using and disclosing protected health information to perform their assigned job duties." Employees who do not abide to the policies are subject to disciplinary actions, including termination, he said.

Sanikian signed a document that said she would adhere to the patient confidentiality policies, McNamara said.

Despite all the training and warnings about accessing patient records, Sanikian's "curiosity got the best of her," McNamara said. She accessed the records of three employees "when she did not have a business need to do so," he said.

According to McNamara's brief, Sanikian gave conflicting reasons for accessing the three files. "Throughout the investigation, (Sanikian) was adamant that her access of all three patients in questions was not improper," the brief says.

Whether Sanikian's intentions in accessing the records were good or bad is irrelevant, McNamara said. "TPMG made its decision based on a good faith investigation that revealed (Sanikian) had accessed confidential medical records of three patients for whom she was not providing care."

Said Kaiser's Hemker: "The well-being and safety of our patients is our priority. We take patient and safety concerns seriously, investigate thoroughly, and take action as necessary. We encourage employees to speak up if they have concerns, and retaliation of any kind is strictly prohibited at Kaiser Permanente."

But Marderosian said Kaiser's conduct was unlawful and malicious, saying Sanikian's "outspoken advocacy put a target on her back."

Pablo Lopez: 559-441-6434, @beecourts

___

(c)2017 The Fresno Bee (Fresno, Calif.)

Visit The Fresno Bee (Fresno, Calif.) at www.fresnobee.com

Distributed by Tribune Content Agency, LLC.