Punished at work 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 was the expert pediatric coroner investigator for most child deaths.

In 2013, a disabled child was found nearly drowned in a washing machine and was comatose.  The child was taken to UCLA Medical Center where he was placed in 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 harvested for donation after cardiac death.

While the child was still alive, he was taken off the ventilator, but then continued to gasp for air, and did not go into cardiac arrest. When the child failed to go into cardiac arrest, the attending physician administered 500 micrograms of Fentanyl to the child. Fentanyl is a strong narcotic and the large amounts injected was meant to induce the child’s death while the organ harvesting team was waiting in the operating room. After the 500 micrograms of Fentanyl were administered, the child went into cardiac arrest and died. One Legacy then harvested his kidneys and liver. This was done without a pathologist from the Coroner’s office being present, as legally required.

Ms. Bertone investigated the child’s death and concluded that the 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 from the near-drowning. Bertone insisted that the child had been killed by an overdose of Fentanyl prior to organ donation. She reported her conclusion that the child’s manner of death was a 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 death investigation of the child, stating on the death certificate that the cause of death was “near drowning.” Unsatisfied with this conclusion, Ms. Bertone requested, several times, that the blood obtained during the child’s autopsy be tested for narcotics.

When she finally received the test results, it confirmed her opinion that the amount of Fentanyl injected to the child after he was removed from the ventilator was extremely high. However, before she could discuss the results with Dr. Fajardo, she was diagnosed with cancer and went out on medical leave.

When Ms. Bertone went back to work, she was not returned to her former assignment. However, she continued to raise the child’s case again with Dr. Fajardo, and later, his successor after he resigned. She also began to vocally advocate that whenever a decedent’s organs or tissue were harvested by One Legacy, the Department should always perform a toxicology test on the autopsy blood to prevent concealment of evidence of criminal acts.

Despite the evidence, Dr. Fajardo refused to change the cause of death on the death certificate. Ms. Bertone testified that Dr. Fajardo told her to the effect of: While you work for me, you will never criticize One Legacy!

Ms. Bertone continued to ask to be returned to her former assignment, which was denied. She had applied to be promoted as Lieutenant, which was also denied, and the promotion was given to a less qualified individual. After Ms. Bertone was removed from her assignment, the Coroner’s Department received many complaints from local law enforcement, prosecutors, and family services agencies that the quality of the Department’s child death investigations is suffering, and that the child death notifications that are necessary to ensure the safety of siblings are not being made in a timely manner, or even at all.

In 2017, Ms. Bertone learned from a co-employee that an effort was underway to gather complaints against her in order to terminate her. Multiple complaints from co-workers were filed against her for minor violations. Due to harassment and ostracism, Ms. Bertone, worried about her health and the thought of being terminated, retired from her job. She later sued her former employer, alleging constructive termination as a result of employer retaliation against her for her Whistleblowing activities.

The California Whistleblower Protection Act specifically protects employees from being retaliated against after reporting to a government agency that their employer has violated the law. The Act also protects employees who report of a suspected violation internally (for instance, to a supervisor within the organization) or externally to “any public body” conducting a hearing or investigation. Employees are protected if they truly believed the conduct they complained about was unlawful, even if it was not. The 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 concluded that Ms. Bertone was illegally retaliated against by the employer. The jury awarded her $8.4 million in damages.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.