Opinion
No. 05-06-00881-CV
Opinion Filed August 28, 2007.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 05-0754.
Before Justices MORRIS, FRANCIS and MAZZANT.
MEMORANDUM OPINION
In this retaliatory discharge case, Cheryl Word appeals the trial court's summary judgment in favor of her former employer, Wilson N. Jones Regional Health System. In four issues, appellant contends (1) the trial court erred in striking portions of her summary judgment evidence, (2) she established a prima facie case of retaliation, (3) there are issues of material fact concerning whether appellee's stated ground for constructively discharging her was pretextual, and (4) she presented issues of material fact showing she was constructively discharged. We affirm.
The evidence shows appellant was a respiratory therapist at appellee's hospital for twenty-two years. During the course of her employment, she was promoted through the ranks to the position of director of cardiopulmonary care. Although respiratory therapists appellant supervised occasionally complained about her, she received favorable performance evaluations from her supervisors.
In 2002, appellant became concerned that the hospital's cardiologists were not reading and interpreting electrocardiograms (EKG) and echocardiograms in a timely manner. She voiced her concerns orally to her supervisors. Appellee's written policy required "stat" EKGs to be read within twenty-four hours and routine EKGs to be read within seventy-two hours.
In January 2003, appellee hired a consultant, Cambio Health Solutions, LLC, to review the hospital's operations. In its August 2003 report, Cambio identified untimely readings of cardiology tests as a problem. Cambio reported that "stat" and presurgical EKGs were being read within the recommended twenty-four hours, but routine tests were not being timely read. For echocardiograms, Cambio suggested "stat" tests should be read within twenty-four hours and routine tests within seventy-two hours. Cambio described appellee's performance under this standard as poor. Cambio observed that although appellee monitored the time it took for cardiologists to read the tests, there was no penalty for noncompliance. Cambio noted that the staff physicians did not consider a chart delinquent until thirty days had passed. Cambio concluded the thirty-day window did not meet American College of Cardiology (ACC) guidelines and was "not consistent with good patient care."
Following the Cambio report, appellant provided copies of the ACC guidelines to various hospital committees and officials. Appellant continued to express her concerns about the untimely cardiology readings in monthly managers' meetings.
Early in 2004, appellee created an ad hoc committee to address the concerns of appellant, members of the cardiology section, and Cambio regarding the timeliness of EKG and echocardiogram readings. The committee consisted of appellant, a cardiologist, an ER physician, and the hospital chief-of-staff. In October 2004, appellant's supervisor asked her to prepare a report documenting the timeliness of cardiology test readings and a list of physicians who were failing to conduct timely readings. Appellant prepared the requested list of physicians and a report identifying the physicians, patients, dates the tests were ordered, and the dates the tests were actually read. Appellant delivered her report and list to her superiors and also presented her findings during an October 22, 2004 meeting of appellee's Cardiovascular Committee.
In addition to the hospital cardiologists, Pat Flynn, appellee's CEO, and several other hospital officers also attended the October 22, 2004 meeting. Appellant understood that the purpose of the meeting was to establish guidelines instructing physicians to adhere to hospital policy and to mandate timely interpretations of cardiology tests.
During the meeting, appellant quarreled with Dr. Isaacs, a cardiologist, regarding who was to blame for the problem. Appellant and others were then excused from the remainder of the meeting so a peer review process could be conducted. After the meeting, Isaacs approached appellant and instructed her not to put physicians' names on lists for failing to conduct timely cardiology tests.
On October 25, 2004, appellant was summoned to meet with two supervisors who chided her for her "comments and behavior" at the meeting three days earlier. Appellant's supervisor informed her that Flynn and Isaacs were angry with her, that Flynn said she "should not have talked to Dr. Isaacs in that manner," and that Flynn viewed her as an "obstacle between the physicians doing their job." Appellant was advised to keep her mouth shut.
On October 29, 2004, appellant was suspended from her job while management investigated two complaints filed against her by respiratory therapists she supervised. Appellant characterizes the complaints as basically personality conflicts between employees and points out that many of the complaints are actually directed at another supervisor in her department. Appellee's investigation consisted of interviewing twenty-seven or twenty-eight employees in appellant's department about her job performance. Some employees disparaged appellant while others held her in high regard.
In a November 5, 2004 meeting, hospital administrators informed appellant that she had been found guilty of unprofessional behavior and questionable leadership. She was ordered to sign a counseling and guidance report and performance improvement plan or face termination. Believing the document contained false representations about her performance, appellant refused to sign and resigned instead. She reported to the Texas Workforce Commission that appellee retaliated against her for reporting unsafe conditions for patients. She ultimately sued appellee, alleging she was discharged in violation of Texas Health and Safety Code section 161.134(f) "after reporting her concerns regarding the untimely interpretations of cardiology tests and resultant effect on patient care." Appellee moved for summary judgment on both traditional and no-evidence grounds, and the trial court granted the motion without specifying the grounds. This appeal ensued.
The standard of review for both a traditional and no-evidence summary judgment is well known. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Gen. Mills Rest. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). With respect to its traditional motion for summary judgment, appellant had the burden to demonstrate that no genuine issues of material fact existed and it was entitled to summary judgment as a matter of law. See Nixon, 690 S.W.2d at 548-49. To defeat the no-evidence motion, however, appellant was required to present sufficient evidence to raise a genuine issue of fact on each challenged element of her claims. See Gen. Mills, 12 S.W.3d at 832-33. Because the trial court granted appellee's summary judgment motion without specifying the grounds on which the judgment was based, appellant must show that each ground alleged by appellee was insufficient. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
In her first issue, appellant complains that the trial court struck portions of her affidavits and two of her exhibits. The trial court concluded that portions of the affidavits detailing her preparation of reports and attendance at a Cardiovascular Committee meeting were inadmissible under the medical peer review privilege. See Tex. Health Safety Code Ann. § 161.032 (Vernon Supp. 2006); Tex. Occ. Code Ann. § 160.007 (Vernon 2004) (providing the records, proceedings, reports, and determinations of medical peer review committees are not generally discoverable or admissible in civil actions). Appellant contends her account is not subject to the privilege and the privilege was not properly claimed. We note that most of the content of the affidavits may be gleaned from deposition excerpts submitted by the parties. See generally In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 260 (Tex. 2005) (discussing supreme court peer review cases); Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 16-18 (Tex. 1996) (discussing scope and limits of medical peer review privilege and allowing parties to discover privileged information from unprivileged sources). Because it does not affect the resolution of the appeal, for our purposes, we will assume, without deciding, that appellant's averments regarding her report to the Cardiovascular Committee are part of the summary judgment record. See Texarkana Memorial Hospital, Inc. v. Jones, 551 S.W.2d 33, 36 (Tex. 1977) (stating, in dicta, that evidence or opinion presented to hospital committee not privileged if proved by means apart from committee's records). Other portions of appellant's affidavit and her two exhibits were struck as containing inadmissible hearsay. We likewise conclude that resolution of these evidentiary disputes does not affect the outcome of the appeal.
In her second issue, appellant contends the trial court erred in granting summary judgment because she established a prima facie case of retaliation under Texas Health and Safety Code Section 161.134. Because we disagree, and our resolution of this issue against appellant is determinative of her appeal, we address it first.
Section 161.134 of the health and safety code prohibits retaliation against employees of hospitals, mental health facilities, and treatment facilities who report "a violation of law, including a violation of this chapter, a rule adopted under this chapter, or a rule adopted by the Texas Board of Mental Health and Mental Retardation, the Texas Board of Health, or the Texas Commission on Alcohol and Drug Abuse." Tex. Health Safety Code Ann. § 161.134(a) (Vernon 2001). The elements of a cause of action under section 161.134 are (1) an employee of a hospital, mental health, facility, or treatment facility, (2) reported a violation of law, (3) to a supervisor, administrator, state regulatory agency, or a law enforcement agency, (4) in good faith, and (5) as a result, the employee was suspended, terminated, disciplined or otherwise discriminated against. Barron v. Cook Children's Health Care Sys., 218 S.W.3d 806, 810 (Tex.App.-Fort Worth 2007, no pet.). Subsection (f) sets out the applicable burden of proof under section 161.134 as follows:
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.
Tex. Health Safety Code Ann. § 161.134(f) (Tex. 2001).
In its motion for summary judgment, appellee contended appellant's claims, even if true, did not constitute a report of a violation of law protected by section 161.134(a) because the failure to timely read cardiology tests does not violate any state or federal statute, any rule promulgated under Chapter 161 of the health and safety code, or any rule promulgated by the Texas Board of Mental Health and Retardation, the Texas Board of Health, or the Texas Commission on Alcohol and Drug Abuse.
Appellant contends the Legislature intended for section 161.134 to protect employees who report treatment of patients below the accepted standard of care. Appellant further contends the statute was not intended to require that in order for a violation to occur, every process or act performed at a hospital had to be covered by a controlling law. Appellant cites no authority for her views on the Legislature's intent.
Statutes protecting workers from retaliatory discharge are exceptions to the common law doctrine of employment at will. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 453 (Tex. 1996) (discussing statute forbidding retaliation against worker for pursuing good faith worker's compensation claim). A statute creating a liability that does not exist in the common law is not extended beyond its plain meaning or applied to cases not clearly within its purview. Id. Neither party argues that section 161.134 is ambiguous and we do not view it as ambiguous. See Barron, 218 S.W.3d at 809) (finding section 161.134 is unambiguous). Therefore, we give the statute's words and terms their plain and common meanings. See St. Luke's Episcopal Hosp. v. Abgor, 952 S.W.2d 503, 505 (Tex. 1997).
Appellant contends appellee's failure to timely interpret cardiology tests violates rules promulgated by the Texas Board of Health. Appellant points out that the Hospital Licensing Act empowers the board of health to license hospitals and to set rules and minimum standards governing medical staffing, hospital services, and patient care. See Tex. Health Safety Code Ann. § 241.026 (Vernon Supp. 2006). Appellant cites three rules adopted by the Board. However, even if we include in our review the evidence appellant contends the trial court erroneously struck, we conclude appellee did not violate any of the cited rules.
Two of the three rules appellant cites require employees of certain types of health care providers to report illegal, unethical, or unprofessional conduct while the providers must have written policies on staff conduct and provide competent services "carefully and promptly" while following "the technical and ethical standards related to the provision of services." See 25 Tex. Admin. Code § 448.203, 448.218 (2007). Appellant ignores, however, that the purpose of the rules found in chapter 448 "is to ensure that individuals seeking substance abuse services are offered an efficient, effective, and appropriate continuum of services. . . . [and] to protect the health, safety, and welfare of those receiving substance abuse services." 25 Tex. Admin. Code § 448.102 (2007). Appellant fails to show how untimely cardiology tests would affect the provision of substance abuse services.
In addition to the rules in chapter 448, appellant cites a third rule requiring the governing body of a hospital to "ensure that the medical staff has current bylaws, rules, and regulations which are implemented and enforced." See 27 Tex. Reg. 3162 (2002) (amended 2007) (current version at 25 Tex. Admin. Code § 133.41(f)(4)(A) (2007)). Although the rule appellant cites contains detailed rules for providing certain types of services, such as anesthesia, it offers no specific guidance for the provision of cardiology services, including standards for the timely reading of EKGs or echocardiograms. See id. Appellant cites no authority holding that the timely reading of cardiology tests falls within the "bylaws, rules, and regulations" described in subsection (f)(4)(A). Moreover, even if we assume the timely reading of cardiology tests falls within the scope of subsection (f)(4)(A), no evidence shows that appellee was violating the rule. To the contrary, the evidence is that appellee had a policy in place and was acting to implement and enforce it.
The evidence shows appellee established an internal policy that "stat" cardiology tests were to be interpreted within twenty-four hours and other tests were to be interpreted within seventy-two hours. Appellee conducted monthly managers' meetings where appellant repeatedly expressed concern without retaliation about the timeliness of the tests. Appellee hired a consultant to review hospital operations. Appellee established an ad hoc committee, including appellant, to study the issue. Appellant's supervisors asked her to track the timeliness of cardiology testing and prepare a report. Finally, appellee called the October 22, 2004 meeting, attended by the CEO of the hospital and other officials, to establish guidelines for timely reading cardiology tests.
Under the evidence presented, we cannot conclude appellant reported that appellee's governing body failed to "ensure that the medical staff has current bylaws, rules, and regulations which are implemented and enforced," as appellant suggests. Appellant's report, ordered and sanctioned by her supervisors, was part of the governing body's implementation and enforcement activity. During her deposition, appellant testified she was unaware of ever making any report alleging illegal or unethical conduct on the part of appellee's health care professionals. We conclude appellant's report to Flynn was not a report of a legal violation as contemplated in section 161.134(a). See, e.g., Tomhave v. Oaks Psychiatric Hosp., 82 S.W.3d 381, 383 (Tex.App.-Austin 2002, pet. denied), disapproved on other grounds, Binur v. Jacobo, 135 S.W.3d 646, 651 n. 11 (Tex. 2004) (finding genuine issue of material fact where plaintiff was discharged after reporting potentially felonious sexual relationship between hospital staff member and juvenile patient); see also Muenster Hosp. Dist. v. Carter, 216 S.W.3d 500, 502-05 (Tex.App.-Fort Worth 2007, no pet.) (physicians brought retaliatory discharge claim following discharge for reporting fellow physician's patient neglect and medicare fraud to hospital board).
Based on our review of the record, including those portions of appellant's evidence struck by the trial court, we conclude the summary judgment evidence establishes there was no violation of law or rule as required by section 161.134(a). Accordingly, the trial court did not err in granting appellee summary judgment. We overrule the second issue. Our disposition of this issue makes it unnecessary to address issues three and four.
We affirm the trial court's judgment.