Doctors whistleblowers

Doyle Dennis Avery LLP represents doctors and other non-employees of hospitals, who have been wrongfully targeted for retaliation. Under Texas Health and Safety Code § 161.135, 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.”

Who is protected?

Section 161.135 applied to non-employees who have been retaliated against by a hospital, mental health facility, or treatment facility. The Health & Safety Code’s definition of “hospital” includes “general hospitals” and “special hospitals.”  The Texas Department of Health and Human Services maintains a current list of the licensed “general hospitals” and “special hospitals.”   Because the majority of doctors in Texas are not employees of hospitals, Section 161.135 provided important protection for doctors who have been targeted by hospitals. This may include, anesthesiologist, internists, surgeons, urologists, family physicians, emergency physicians, cardiologists, obstetricians and gynecologists, neurologists, radiologists, anesthesiologists, psychiatrists, dentists, and optometrists.

What is an adverse act?

Section 161.135 protects a non-employee who has been suspended, terminated, disciplined or otherwise discriminated against. Importantly, hospital abuse of the peer review process is another method of an adverse act that may be actionable under Section 161.135.

What type of reports are protected?

The Texas legislature broadly protected medical whistleblowers who report any violation of law, including a violation of the Texas Health and Safety Code, a rule adopted under Texas Health and Safety Code, or a rule of another agency. This protection broadly includes any report of any violation of law or rule of an agency.

How do I prove retaliation or wrongful termination?

To prove a violation of Section 161.135, a plaintiff must show the following:  he or she (1) reported a violation of law, (2) to a supervisor, administrator, state regulatory agency, or a law enforcement agency, (3) in good faith, and (4) as a result, the physician was suspended, terminated, disciplined or otherwise discriminated against. In addition, the Texas legislature creates a rebuttable presumption of retaliation if “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: . . . transfers, disciplines, suspends, terminates, or otherwise discriminates against the person.” This rebuttable presumption provides important protection for healthcare whistleblowers.

What are the deadlines for filing a claim?

Section 161.135 does not contain a specific statute of limitations.  Under Texas law, when a statute does not contain a specific limitations period, the default period is two years.  However, some Courts have construed Section 161.135 to utilize Section 161.134’s statute of limitation period of 180 days.  Therefore, a retaliation claim under Section 161.135 should be filed within the shorter time period out of caution.

What other claims are available?

In addition to the protection for a non-employee under Section 161.135, a physician or non-hospital employee may have other causes of actions available, including a Sabine Pilot retaliation claim, tortious interference, defamation, breach of contract, breach of by-laws, or antitrust violation.

What Damages are available?

Section 161.135 authorizes an employee to full compensatory damages, including lost past and future wages, mental anguish, punitive damages, and attorney’s fees.