Texas Appellate Court Finds Hospital Nurse Failed To Comply With Whistleblower Statute

The Court of Appeals Seventh District of Texas at Amarillo (“Texas Appellate Court”), in its Memorandum Opinion dated March 18, 2020, addressed a nurse’s whistleblower claim against her employer, a Texas hospital, regarding mandatory work shifts. The Texas Appellate Court held that the plaintiff “failed to establish an objective, good faith belief that she reported a violation of the law to an appropriate law enforcement authority.”

The Underlying Facts

The plaintiff, Erin Reding (“Reding”), is a registered nurse who began working at Lubbock County Hospital District d/b/a University Medical Center (“UMC”) in April of 2016. In her lawsuit, Reding alleged that in April and May of 2017, UMC announced plans for a new policy that would require nurses to sign up for two mandatory “on call” shifts per month. Under the proposed plan, nurses who did not report when called in to such shifts would be subject to disciplinary action.

Reding believed the proposed compulsory shifts would violate section 258.003 of the Texas Health & Safety Code, which prohibits a hospital from requiring a nurse to work mandatory overtime. TEX. HEALTH & SAFETY CODE ANN. § 258.003(a), (c) (West 2017). Further, she believed that the proposed policy for disciplinary action constituted retaliation.

Reding contacted UMC’s human resources department to share her concerns. The human resources department referred her to the hospital’s legal department. On May 8, 2017, Reding reported the matter to the legal department. In her affidavit, Reding asserted that, she “believed at the time [of the report] that the legal department was the proper and only enforcement authority within or outside the Lubbock County Hospital District available to regulate and/or enforce the law against mandatory overtime.”

Reding alleges that, following her report, she began experiencing retaliation. She contends that when she was fired on July 21, 2017, the basis given for her termination was false and used as a pretext to cover up UMC’s retaliation. Reding then filed her lawsuit alleging that UMC violated the Texas Whistleblower Act, which prohibits adverse personnel action against a public employee who, in good faith, reports to an appropriate law enforcement authority a violation of law by another public employee. TEX. GOV’T CODE ANN. § 554.002 (West 2012). UMC filed a plea to the jurisdiction in which it asserted that Reding failed to allege a claim for which immunity has been waived (i.e., that her report was made to an appropriate law enforcement authority). After a hearing, the trial court granted UMC’s plea to the jurisdiction.

Texas Appellate Court Opinion

As a governmental entity, UMC is generally entitled to governmental immunity, which bars suits against the state and its entities other than for claims for which immunity has been waived. The Whistleblower Act waives immunity to suit to the extent a governmental entity is liable under its provisions. TEX. GOV’T CODE ANN. § 554.0035 (West 2012). For immunity to be waived, a claimant must actually allege a violation of the Act. As such, the elements of a whistleblower claim are jurisdictional and may not be waived.

Texas Whistleblower Act

Under the Texas Whistleblower Act, a plaintiff is required to prove: (1) that she was a public employee, (2) that she reported a violation of law in good faith, (3) that the violation of law reported was committed by her employing governmental entity or another public employee, (4) that the report was made to an appropriate law enforcement authority, and (5) that her employing governmental entity took an adverse personnel action against her because of the report.

Under section 554.002, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law.

The plaintiff in a whistleblower claim must prove that her report was made to an appropriate law enforcement authority, or that she had a good faith belief that it was. An employee’s belief is in good faith if: (1) the employee believed the governmental entity qualified, and (2) the employee’s belief was reasonable in light of her training and experience. The first element is subjective, while the second is objective. An authority’s power to discipline its own or investigate internally does not support a good-faith belief that it is an appropriate law enforcement authority. Rather, the authority must have outward-looking powers, as in authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.

The Texas Appellate Court held, “Here, Reding made a report up the chain of command, to a department she “believed was authorized to regulate within [UMC]” (emphasis added). But while the legal department at UMC may oversee internal compliance with the law governing nurses’ work hours, that is not the same as having the authority to “enforce, investigate, or prosecute violations of law against third parties … The legal department may support internal compliance with regulations, but it is not charged with being a regulator. Therefore, UMC’s legal department does not qualify as an appropriate law enforcement authority. We conclude that Reding could not have had an objective good faith belief that she was reporting a violation of law to an appropriate law enforcement authority … Accordingly, Reding’s complaint to UMC’s internal legal department falls short of what the Whistleblower Act requires. Therefore, her claim cannot survive the jurisdictional challenge made by UMC.”

Source Reding v. Lubbock County Hospital District d/b/a University Medical Center, No. 07-18-00313-CV.

If you or a loved one may have suffered serious injuries as a result of medical negligence in Texas or in another U.S. state, you should promptly find a Texas medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Monday, April 27th, 2020 at 5:30 am. Both comments and pings are currently closed.

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