Healthcare Whistleblower Protection In Texas – Report a Violation Now!

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WHO CAN BLOW THE WHISTLE ON A HOSPITAL, MENTAL HEALTH FACILITY, OR TREATMENT FACILITY?

The answer is quite simple – anyone. If you are an employee of a hospital, mental health facility, or treatment facility, you can blow the whistle on these folks and sue under Texas Health & Safety Code Section 161.134 if you are terminated or the victim of retaliation. If you are not an employee, and a hospital, mental health facility, or treatment facility retaliates against you in any way for reporting them, you can sue under Texas Health & Safety Code Section 161.135. Here are a couple of examples of how these law might apply to certain situations in a hospital setting:

• Employee Under 161.134: Jane is a nurse at Huge Hospital. She is an employee of Huge Hospital and receives her paycheck and benefits from that entity and not a practice group. Jane becomes disturbed as she routinely witnesses Dr. Ancient make charting mistakes, order the wrong medication, and neglecting certain patients. Nurse Jane knows that Dr. Ancient is well liked and was once renowned for his skills. However, she feels he is past his prime and doesn’t have the same motivation to provide the best medical care possible to each of his patients as he once did. Nurse Jane reluctantly reports her concerns to the head nurse (Jane’s boss) and the VP of Huge Hospital, feeling strongly that patient safety is paramount to Dr. Ancient’s standing at the hospital. Nurse Jane then notices a change in atmosphere around her at Huge Hospital. She is placed in several impossible situations and is once forced to leave work early one day to care for a sick family member. He next review from her superior is poor and she is ultimately forced out or terminated. As she is packing up her things, a co-worker tells Jane that Huge Hospital had it out for her once she reported Dr. Ancient to the administration. Co-worker tells Jane that she was present in several conversations wherein important figures at Hughe Hospital were scheming to get rid of Nurse Jane. Nurse Jane then hires a lawyer. The lawyer subpoenas all email correspondence and text messages from the relevant parties and finds out that Co-Worker was right indeed. Huge Hospital arrogantly fights the case, and Nurse Jane ultimately prevails. Nurse Jane recovers back pay, future lost wages, damages for mental anguish, punitive damages, and attorneys fees. Huge Hospital then makes some serious policy changes.

• Non-Employee Under 161.135: Jack Handy is a IT expert who services and repairs some of the equipment located in the private patient rooms at Huge Hospital. He works for a company who has a service contract with Huge Hospital and is not an employee of Huge Hospital. One day, Jack is on the third floor of Huge Hospital to check the functionality of a system in a patient room. When he enters the room, he sees two orderlies mistreating an elderly and half-conscious patient. Jack goes immediately to the security office and next to the administration office to report the incident. It seems to Jack that Huge Hospital has taken his report seriously; however, when he goes to his own office the next week, he discovers that Huge Hospital has cancelled its contract with Jack’s IT company. Jack’s boss explains that Huge Hospital alleged that Jack had a history of making nurses at Huge Hospital uncomfortable with some remarks about their looks. Jack adamantly denies these allegations because they are untrue. However, Jack’s boss suspends him without pay for two weeks until he can wrap his head around the situation. Jack hires a lawyer and sues. Huge Hospital arrogantly fights the case, and Jack ultimately prevails. Jack recovers his lost pay, mental anguish, punitive damages, and attorneys fees.

ACTUAL LANGUAGE OF THE STATUTES

FOR EMPLOYEES

(a) A hospital, mental health facility, or treatment facility may not suspend or terminate the employment of or discipline or otherwise discriminate against an employee for reporting to the employee’s supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of this chapter, a rule adopted under this chapter, or a rule of another agency.

(b) A hospital, mental health facility, or treatment facility that violates Subsection (a) is liable to the person discriminated against.  A person who has been discriminated against in violation of Subsection (a) may sue for injunctive relief, damages, or both.

(c) A plaintiff who prevails in a suit under this section may recover actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown.

(d) In addition to an award under Subsection (c), a plaintiff who prevails in a suit under this section may recover exemplary damages and reasonable attorney fees.

(e) In addition to amounts recovered under Subsections (c) and (d), a plaintiff is entitled to, if applicable:

(1) reinstatement in the plaintiff’s former position;

(2) compensation for lost wages;  and

(3) reinstatement of lost fringe benefits or seniority rights.

(f) A plaintiff suing under this section has the burden of proof, except that it is a rebuttable presumption that the plaintiff’s employment was suspended or terminated, or that the employee was disciplined or discriminated against, for making a report related to a violation if the suspension, termination, discipline, or discrimination occurs before the 60th day after the date on which the plaintiff made a report in good faith.

(g) A suit under this section may be brought in the district court of the county in which:

(1) the plaintiff was employed by the defendant;  or

(2) the defendant conducts business.

(h) A person who alleges a violation of Subsection (a) must sue under this section before the 180th day after the date the alleged violation occurred or was discovered by the employee through the use of reasonable diligence.

(i) This section does not abrogate any other right to sue or interfere with any other cause of action.

(j) Each hospital, mental health facility, and treatment facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to patients, residents, employees, and visitors a statement that employees and staff are protected from discrimination or retaliation for reporting a violation of law.  The statement must be in English and in a second language.

FOR NON-EMPLOYEES

(a) A hospital, mental health facility, or treatment facility may not retaliate against a person who is not an employee for reporting a violation of law, including a violation of this chapter, a rule adopted under this chapter, or a rule of another agency.

(b) A hospital, mental health facility, or treatment facility that violates Subsection (a) is liable to the person retaliated against.  A person who has been retaliated against in violation of Subsection (a) may sue for injunctive relief, damages, or both.

(c) A person suing under this section has the burden of proof, except that it is a rebuttable presumption that the plaintiff was retaliated against if:

(1) before the 60th day after the date on which the plaintiff made a report in good faith, the hospital, mental health facility, or treatment facility:

(A) discriminates in violation of Section 161.134 against a relative who is an employee of the facility;

(B) transfers, disciplines, suspends, terminates, or otherwise discriminates against the person or a relative who is a volunteer in the facility or who is employed under the patient work program administered by the department;

(C) commits or threatens to commit, without justification, the person or a relative of the person;  or

(D) transfers, discharges, punishes, or restricts the privileges of the person or a relative of the person who is receiving inpatient or outpatient services in the facility;  or

(2) a person expected to testify on behalf of the plaintiff is intentionally made unavailable through an action of the facility, including a discharge, resignation, or transfer.

(d) A plaintiff who prevails in a suit under this section may recover actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown.

(e) In addition to an award under Subsection (c), a plaintiff who prevails in a suit under this section may recover exemplary damages and reasonable attorney fees.

(f) A suit under this section may be brought in the district court of the county in which:

(1) the plaintiff received care or treatment;  or

(2) the defendant conducts business.

(g) This section does not abrogate any other right to sue or interfere with any other cause of action.

(h) Each hospital, mental health facility, and treatment facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to patients, residents, employees, and visitors a statement that nonemployees are protected from discrimination or retaliation for reporting a violation of law.  The statement must be in English and in a second language.  The sign may be combined with the sign required by Section 161.134(j)