Monday, December 10, 2018

Psychologist Ellen Stein Highlights Impact of Former Kaiser Worker’s Discharge, Leading to $492K Verdict

The Trial: Gonzalez v. Kaiser Foundation Health Plan, Inc., an employment discrimination trial in which the plaintiff claims she was discharged because her employer did not wish to pay to treat her son’s kidney disorder.

The Expert: Ellen Stein, Ph.D., a San Diego-based forensic psychologist, testifying for the plaintiff and providing her opinion on plaintiff’s psychological issues and appropriate treatment.

The Verdict: $492,000.


 By Gary F. Gansar, MD, FACS; Senior Medical Director, AMFS

In a case that examines how a dependent personality, cultural impediments, anxiety disorder, and strained work relationships interact with the consequences of a child’s illness and perceptions of mistreatment, Ellen Stein, Ph. D.,  a clinical and forensic psychologist, demonstrates mastery of her field as well as the courtroom.

Testifying for the plaintiff in Gonzalez v. Kaiser Foundation Health Plan, Stein concludes that the woman who lost her job at Kaiser would require long-term therapy, and would never totally recover from the psychological damage that resulted from the conflict that led to her job termination.

Maria Gonzalez was discharged from her position with Kaiser. She sued for disability discrimination, claiming she was fired so Kaiser could avoid paying for her son’s expensive kidney treatments. Kaiser claimed that she was discharged for improperly accessing her son’s medical records.

Starting with her elucidation of the effects of an anxiety disorder and how that hinders even daily activities, Stein describes a person who whose constant tension interfered with efforts to think, concentrate, make decisions, and interact with others. These things would not have presented a problem but for the excessive anxiety.

A patient’s refusal of therapy might ordinarily be a detriment to a plaintiff’s claim, but here the expert says such a refusal was warranted. Since all treatments were being handled by Kaiser, group therapy would expose her in her employment setting to a vulnerable process that could not guarantee confidentiality. She would also be exposed to judgment by others in the group when she was already sensitive about judgment issues from her previous individual psychological treatment at Kaiser. Stein supports the plaintiff in her refusal to join group therapy.

The psychologist reports that, despite the patient being treated prior to her own examination with psychiatric medications and individual therapy, her testing indicated that Gonzalez was “still impacted by a mood disorder which was as yet untreated or unresolved.” Going further, the psychologist states she believes that, despite previous treatment, it appears that “we might be beginning treatment from the very start at that point.” She anticipates two years of psychotropic drugs and psychological therapy would be needed.

Stein then turns to explain how certain cultures traditionally try to avoid, stigmatize, and underutilize psychological treatment. In this case, Gonzalez’s background made her especially sensitive to being judged or evaluated even by a professional, and led to a reluctance to “open up” and trust a health care provider to form a “therapeutic alliance.”  In this regard, the psychologist surprisingly feels that a marriage and family therapist would probably be the best type of therapist for this case. She explains that this patient was essentially interacting with two families, her biological family and her family of coworkers at her place of employment. Therefore, even though she, as a clinical psychologist, is well-qualified to treat her, the use of a family therapist might be a better choice.

The plaintiff was unhappy with the treatment and progress of her son who had a kidney ailment. This treatment was provided by Kaiser and her distress over this interfered with her relationship with her coworkers at Kaiser, her second family. The psychologist explains that, in dealing with this conflict, the patient would be expected to withdraw from one family, (coworkers) as she tried to protect the other (her son), leading her to be “upset, distressed and dramatic in her reaction,” thus leading to her anxiety disorder.

With a slight, but unhesitant jab at one of Gonzalez’s treating professionals, Stein testifies that the patient should have been seen more often, and also recommends a change in the medications that were prescribed, since there had been so little progress in her treatment. Regardless, even with more appropriate treatment, she cannot be “cured.”  The dependent personality disorder is an ongoing diagnosis and can only be managed. The dysthymia and anxiety disorder, on the other hand, could be minimized with appropriate care.

People gain their identity from their job, Stein tells jurors, and those who have psychological disorders like the plaintiff will feel the loss of her employment more intensely than others if that employment cannot be replaced. She “has a need for affiliation” due to her dependent personality disorder, and it is important for her to have “sustainable employment.” This is crucial for her internal stability. When Kaiser fired her, that loss of stability created anxieties and made the dependency worse.

The expert finally discusses the definition of malingering and reminds the court that, when she examined the plaintiff, standard “validity indices” were utilized and these “did not show malingering.”

Stein’s calm demeanor, even-tempered answers, and command of her field certainly supported the verdict in the plaintiff’s favor, and her testimony was sure to have boosted the judgment to just under half a million dollars.

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Gary Gansar, MD, is residency trained and Board Certified in General Surgery. He previously served as Chief of Surgery and Staff at Elmwood Medical Center and on the Medical Executive Committee at Mercy Hospital and Touro Infirmary in New Orleans, LA. Dr. Gansar also served as Clinical Instructor and Professor of Surgery at Tulane University. He received his MD and served as Chief Resident at Tulane University Medical School. Dr. Gansar joined AMFS as a consulting medical expert in 2011 and has served as Medical Director since Nov. 2015. In this capacity, Dr. Gansar provides consultation, review and guidance to attorney clients.