[COLUMN] When you experience “adverse employment action” for doing the right thing –
DENISE Bertone worked as a coroner investigator for the Los Angeles County Department of Medical Examiner-Coroner (DMEC). For most of her 25-year tenure, she served as the pediatric coroner’s expert investigator for most child deaths.
In 2013, a disabled child was found nearly drowned in a washing machine and was in a coma. The child was taken to UCLA Medical Center where he was placed on a ventilator. One Legacy, a non-profit organization that harvests organs and tissues in Southern California, obtained consent from the child’s guardians to have the child’s organs removed for donation after cardiac death.
While the child was still alive, he was removed from the ventilator, but then continued to gasp and did not go into cardiac arrest. When the child failed to go into cardiac arrest, the attending physician gave him 500 micrograms of Fentanyl. Fentanyl is a potent narcotic and the large amounts injected were supposed to cause the child to die while the organ recovery team waited in the operating room. After administration of the 500 micrograms of Fentanyl, the child went into cardiac arrest and died. One Legacy then removed his kidneys and liver. This was done without the presence of a pathologist from the coroner’s office, as required by law.
Ms Bertone investigated the child’s death and concluded that fentanyl administered to the child was the cause of death. The autopsy surgeon and Dr Mark Fajardo (the then chief medical examiner and Ms Bertone’s boss) attributed the death to brain damage caused by the near drowning. Bertone insisted the child was killed by an overdose of Fentanyl before the organ donation. She reported her finding that the child’s manner of death was homicide. Ms. Bertone testified that Dr. Fajardo told her, “They killed him for his organs, but you just can’t say that.
Dr Fajardo eventually closed the inquest into the child’s death, stating on the death certificate that the cause of death was “near drowning”. Dissatisfied with this conclusion, Ms Bertone repeatedly requested that the blood obtained during the child’s autopsy be tested for narcotics.
When she finally received the test results, it confirmed her view that the amount of Fentanyl injected into the child after he was taken off the ventilator was extremely high. However, before she could discuss the results with Dr. Fajardo, she was diagnosed with cancer and went on sick leave.
When Ms. Bertone returned to work, she was not returned to her old assignment. However, she continued to raise the child’s case again with Dr. Fajardo, and later, his successor after his resignation. She also began vocally advocating that whenever organs or tissues from a deceased were removed by One Legacy, the Department should always perform a toxicology test on the blood from the autopsy to avoid concealment of evidence of acts. criminals.
Despite the evidence, Dr. Fajardo refused to change the cause of death on the death certificate. Ms. Bertone testified that Dr. Fajardo told her: While you work for me, you will never criticize One Legacy!
Ms Bertone continued to ask to be returned to her old posting, which she was denied. She had asked to be promoted to lieutenant, which was also denied, and the promotion was granted to someone less qualified. After Ms Bertone was removed from her post, the coroner’s service received numerous complaints from local law enforcement, prosecutors and family service agencies that the quality of death investigations of children in the ministry was deteriorating and that child obituaries needed to ensure the safety of siblings are not being made in a timely manner, if at all.
In 2017, Ms Bertone learned from a colleague that an effort was underway to collect complaints against her in order to have her fired. Several complaints from colleagues have been filed against her for minor infractions. Due to harassment and ostracism, Ms Bertone, worried about her health and the prospect of being made redundant, retired. She later sued her former employer, alleging constructive dismissal following employer retaliation against her for her whistleblowing activities.
The California Whistleblower Protection Act specifically protects employees from retaliation after reporting to a government agency that their employer violated the law. The law also protects employees who report a suspected violation internally (for example, to a supervisor within the organization) or externally to “any public body” conducting a hearing or investigation. Employees are protected if they truly believe the conduct they complained about was illegal, even if it was not. An employer is also prohibited from retaliating against an employee who refuses to participate in activities that violate the law.
The case went to trial and the jury found that Ms Bertone had been the subject of unlawful retaliation by the employer. The jury awarded him $8.4 million in damages.
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