A Texas Whistleblower Must Blow his Whistle to a Proper Law Enforcement Authority

In addition to being a professor of surgery at The University of Texas Southwestern Medical Center (UTSW), Dr. Larry Gentilello was the Chair of the Division of Burn, Trauma and Critical Care.  Gentilello reported to a supervisory faculty member that trauma residents were providing treatment and performing surgeries without the supervision of an attending physician as required by Medicare and Medicaid. Removed from his faculty position, Gentilello filed a suit pursuant to the Texas Whistleblower Act. The Texas Supreme Court dismissed Gentilello’s suit, concluding that he did not report the alleged misconduct to a law enforcement authority, failing the good faith element of the Act.

Texas Whistleblower Act

The Texas Whistleblower Act decrees that a state or city government may not retaliate in employment against a public employee who in good faith informed an appropriate law enforcement authority of a violation of law by the employing governmental entity or another public employee. The law provides injunctive and compensatory relief for the whistleblower who was retaliated against.

In good faith, inform a proper law enforcement authority

A key element of the Texas Whistleblower Act is that the whistleblower must report the misconduct or illegal activity to an appropriate law enforcement authority. Gentilello reported that residents were doing operations and providing medical care without proper supervision from an attending physician to a supervisory faculty member who had the authority to make sure that UTSW is complying with Medicaid and Medicare. The Texas Supreme Court concluded he was only a law compliance authority, and that the law requires a law enforcement author.

The court instructed that a law enforcement authority, as defined by the Act, must be empowered to enforce, investigate or prosecute violations of law against parties outside of its own agency or it must be empowered to enact regulations governing the conduct of such third parties.

Direction for the future

The Texas Supreme Court determined that the question of whether a whistleblower reported in good faith to a proper law enforcement authority is a question of law for the court to decide.  Future Texas whistleblower cases need to carefully review the facts to evaluate if their whistleblower's reports of misconduct were addressed to the correct authority.

If you are involved in a matter involving misconduct at a governmental agency, contact a Texas whistleblower attorney to discuss the merits of your claim.