AUSTIN â" A lawyer for a demoted Parkland Memorial Hospital trauma surgeon on Wednesday urged the Texas Supreme Court to protect the doctor and other government employees who report wrongdoing through internal channels.
Failing to do so would leave Texas whistle-blowers in a âreally precarious position,â said Dallas lawyer R. Brent Cooper, who represents Dr. Larry Gentilello.
Gentilello has been trying since 2007 to get his retaliation claims against UT Southwestern Medical Center heard by a jury. He alleges that UTSW demoted him as head of its surgical burn, trauma and critical care unit after he reported to his supervisor that faculty physicians werenât properly supervising resident doctors.
The medical center is fighting to get the lawsuit dismissed, arguing that Gentilello failed to meet the requirements of the Texas Whistleblower Act that allegations be reported to an âappropriate law enforcement authority.â
The law states that an employee must have a âgood faithâ belief that the person to whom he reports wrongdoing is authorized to regulate or enforce the law or is authorized to investigate or bring a criminal prosecution.
Cooper said Gentilelloâs supervisor, Dr. Rogert Rege, âclearly had power to require complianceâ with federal Medicare and Medicaid laws.
But Texas Assistant Solicitor General Bill Davis said that Rege had not been delegated federal enforcement authority. He said allegations must be reported to a proper authority, ânot just to someone who has internal power to do something.â
Justice Nathan Hecht asked Davis if it makes sense to require whistle-blowers to call police about a Medicare violation when they are busy âarresting rapists and murderers.â
Davis said a business that is dumping toxic waste could cover up evidence if an employee only reported internally instead of going to the Environmental Protection Agency or Texas Commission on Environmental Quality.
Cooper told the court that most government agencies have internal rules for employees to report violations, and that employees, particularly those in low-level positions, should not lose their legal protections against retaliation if they follow those policies. In fact, he said, Texas public policy should encourage whistle-blowers to report fraud that could be costing taxpayers.
Davis said the court should follow its 2002 ruling in a lawsuit brought by a Texas Department of Transportation employee who was demoted after telling agency officials that a co-worker had been driving while intoxicated. The court dismissed the case, holding that the employee could not have had a good-faith belief that TxDOT could enforce drunken-driving laws.
Cooper said Gentilelloâs case is different because Rege had power under UTSWâs billing compliance plan to refund money to the federal government.