A hospital nurse reported possible child abuse. She was fired soon after. Was that report to Child Protective Services protected activity? That is, was her report covered by the Texas statute that prohibits reprisal for reporting possible abuse? The Texas Supreme Court says no. In looking at Texas Family Code Sec. 261.110, the higher court noted that if Nurse Thompson was fired within 60 days of her report, then the court will presume that report to CPS lead to her termination. Yet, the court never mentions in its opinion whether she was fired before or after the 60 day period had run.
The Texas Supreme Court decided that this provision in the Texas Family Code was similar to other statutes that employ a “but for” type analysis. So, it looked at whether the employer could show Nurse Thompson would have been fired even if she had not made the report to CPS. The Nurse had been written up for allegedly speaking in a disrespectful toward a doctor a few months prior. (But, we have to wonder how many nurses might be accused of that in any hospital).
The incident that lead to her termination involved a child patient. Ms. Thompson believed her parents were mis-managing her treatment. Nurse Thompson called a nurse at the patient’s school. The parents had signed a HIPAA release. But, that release expired few weeks before Nurse Thompson’s phone call. About this same time, the nurse reported the possible abuse to CPS. The parents then complained to the hospital. And, the hospital investigated and learned about the phone call to the school.
The hospital claimed her phone call to the school nurse violated HIPAA. But, the Texas Nurses Association and the Texas School Nurses Organization both submitted briefs saying that phone call did not violate HIPAA. The Supreme Court said it did not matter whether her phone call violated HIPAA. The only thing that mattered was why the hospital fired Ms. Thompson. But, that bare assertion begs the question. It is critical in cases like this to ferret out the employer’s true motive. If it can be shown that calling the school nurse did not violate HIPAA, then the hospital would have to explain to the jury why it believed otherwise. If their explanation does not hold water, then the jury could choose to dis-believe the hospital. If the jury did not believe the hospital’s story, then it could conclude that the hospital acted out of a retaliatory motive.
I expect there was other evidence that would have questioned the hospital’s motive. But, the Supreme Court, notoriously anti-employee, did not include it. See the opinion in Scott & White Memorial Hosp. v. Thompson, No. 22-0558 (Texas 12/22/2023) here.