ORAL ARGUMENT REQUESTED NO CV IN THE COURT OF APPEALS FIFTH DISTRICT AT DALLAS, TEXAS

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1 ORAL ARGUMENT REQUESTED NO CV IN THE COURT OF APPEALS FIFTH DISTRICT AT DALLAS, TEXAS THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Appellant, v. LARRY M. GENTILELLO, M.D. Appellee. On Appeal from the 162 nd District Court Of Dallas County, Texas Cause No (Hon. Mary Murphy) BRIEF OF APPELLEE ON REMAND COOPER & SCULLY, P.C. ALDOUS LAW FIRM R. BRENT COOPER CHARLA G. ALDOUS Texas Bar No Texas Bar No CYNTHIA SHEA GOOSEN 2311 Cedar Springs Road, Suite 200 Texas Bar No Dallas, Texas DIANA L. FAUST (214) Texas Bar No (214) (fax) 900 Jackson Street, Suite 100 Dallas, Texas RASANSKY LAW FIRM (214) JEFFREY H. RASANSKY (214) (fax) Texas Bar No McKinnon Street, Suite 625 Dallas, Texas (214) (214) (fax) ATTORNEYS FOR APPELLEE

2 NO CV IN THE COURT OF APPEALS FIFTH DISTRICT AT DALLAS, TEXAS THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Appellant, v. LARRY M. GENTILELLO, M.D. Appellee. On Appeal from the 162 nd District Court Of Dallas County, Texas Cause No (Hon. Mary Murphy) IDENTITY OF PARTIES AND COUNSEL In accordance with rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a list of names and addresses of the parties to the trial court s judgment and their counsel: Appellant: Trial Counsel for Appellant: The University of Texas Southwestern Medical Center at Dallas Mr. Robert F. Johnson, III Ms. Madeleine Connor Texas Attorney General s Office General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas i

3 Appellate Counsel for Appellant on Remand: Michael W. Youtt Jeremiah J. Anderson William R. Burns King & Spalding 1100 Louisiana, Suite 4000 Houston, Texas Greg Abbott Attorney General of Texas C. Andrew Weber First Assistant Attorney General David S. Morales Deputy Attorney General of Civil Litigation James C. Ho Solicitor General Bill Davis Assistant Solicitor General Office of the Attorney General P.O. Box (MC059) Austin, Texas Appellee: Trial Counsel for Appellee: Larry M. Gentilello, M.D. Ms. Charla Aldous Aldous Law Firm 2311 Cedar Springs Road, Suite 200 Dallas, Texas Mr. Jeffrey H. Rasansky Rasansky Law Firm 2525 McKinnon Street, Suite 625 Dallas, Texas Mr. R. Brent Cooper Ms. Cyndy Goosen Ms. Diana L. Faust Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas ii

4 Appellate Counsel for Appellee on Remand: Mr. R. Brent Cooper Ms. Cynthia Shea Goosen Ms. Diana L. Faust Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas Ms. Charla Aldous Aldous Law Firm 2311 Cedar Springs Road, Suite 200 Dallas, Texas Mr. Jeffrey H. Rasansky Rasansky Law Firm 2525 McKinnon Street, Suite 625 Dallas, Texas iii

5 NO CV IN THE COURT OF APPEALS FIFTH DISTRICT AT DALLAS, TEXAS THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Appellant, v. LARRY M. GENTILELLO, M.D. Appellee. On Appeal from the 162 nd District Court Of Dallas County, Texas Cause No (Hon. Mary Murphy) REQUEST FOR ORAL ARGUMENT Pursuant to rule 39.7 of the Texas Rules of Appellate Procedure, Appellee Larry M. Gentilello, M.D. respectfully requests oral argument in this case. iv

6 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL... i REQUEST FOR ORAL ARGUMENT... iv TABLE OF CONTENTS... v TABLE OF AUTHORITIES...viii I. STATEMENT OF THE CASE... xi II. RESPONSE TO ISSUES PRESENTED...xii III. STATEMENT OF FACTS... 1 A. Objection to Improper Use of Argument Within Statement of Facts... 1 B. Factual Background Dr. Gentilello Recognized Internationally as Leading Trauma Surgeon Dr. Gentilello Became Aware of Improper Medical Care Rendered by Unsupervised Trauma Residents Participating in Residency Program and Violations of Medicare and Medicaid Billing Laws Dr. Gentilello Reported Illegal Activity After the Report, Dr. Rege Retaliated Against Dr. Gentilello Dr. Gentilello Suffered Damages as a Result of Adverse Personnel Action Taken by UT Southwestern... 4 C. Procedural Background Dr. Gentilello Files Original Petition Alleging Violation of the Whisleblower Act July 3, 2007 Hearing on Plea to the Jurisdiction July 18, 2008 Judgment and Opinion... 6 v

7 4. December 18, 2009 Per Curiam Opinion... 6 IV. SUMMARY OF THE ARGUMENT... 7 V. ARGUMENT AND AUTHORITIES... 8 A. The Trial Court Correctly Found and Exercised Jurisdiction Over Dr. Gentilello s Lawsuit... 8 B. Whistleblower Act Requires an Allegation of Violation of the Act for Waiver of Immunity from Suit and Lueck Requires the Act s Elements Be Included Within the Pleadings to Determine Whether They Sufficiently Allege A Violation of the Act to Constitute Waiver of Immunity from Suit... 9 C. Dr. Gentilello s Petition Sufficiently Sets Forth Factual Allegations that Appellant Violated the Texas Whistleblower Act Dr. Gentilello Sufficiently Alleged the Violation of Law by Appellant a. Appellant s Illegal Conduct b. Violations of Criminal Law Dr. Gentilello Sufficiently Alleged He Believed, in Good Faith, That Dr. Rege Was Authorized to Investigate and Correct the Illegal Activities Occurring at UTSW Appellant Mischaracterizes the Basis for the Holding in Lueck Appellant s Arguments Require This Court to Construe Dr. Gentilello s Petition in His Favor and Review the Entire Record to Determine Whether Any Evidence Exists to Support His Assertion In the Alternative, if the Court Concludes Dr. Gentilello s Petition Does Not Contain Sufficient Facts to Demonstrate Jurisdiction, Dr. Gentilello Should Be Permitted to Amend His Pleadings to More Fully Plead Facts to Support His Claim vi

8 D. Evidence Presented at the Hearing on Appellant s Plea to the Jurisdiction Shows Dr. Gentilello s Good-Faith Belief that Dr. Rege Was an Appropriate Law Enforcement Authority Appropriate Law Enforcement Authority Is Not Limited to One with Authority to Regulate or Enforce the Laws The Evidence Presented at the Hearing on Appellant s Plea to the Jurisdiction Supports the Trial Court s Decision to Deny the Plea a. The Billing Compliance Office and the Billing Compliance Plan b. The Testimony Presented in the Hearing on Appellant s Plea to the Jurisdiction Also Supports a Denial of the Plea (1) Dr. Gentilello s Testimony That He In Good Faith Reasonably Believed That Dr. Rege Was An Appropriate Law Enforcement Authority (2) Dr. Gentilello s Testimony That He In Good Faith Reasonably Believed That Dr. Rege Was An Appropriate Law Enforcement Authority is Supported by Testimony of Dr. Raminder Nirula and Dr. Shahid Shafi c. Evidence Supports Dr. Gentilello s Good-Faith, Reasonable Belief that He Reported a Violation of Law to an Appropriate Law Enforcement Authority Appellant Has Presented No Evidence Which Would Negate Dr. Gentilello s Contention that He Believed in Good Faith that Dr. Rege Could Investigate Violations of Criminal Law VI. CONCLUSION CERTIFICATE OF SERVICE APPENDIX TO BRIEF OF APPELLEE ON REMAND vii

9 TABLE OF AUTHORITIES Case Page(s) Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680 (Tex. App. Dallas 2003, pet. denied) City of Dallas v. Heard, 252 S.W.3d 98 (Tex. App. Dallas 2008, no pet.) City of Dallas v. Moreau, 697 S.W.2d 472 (Tex. App. Dallas 1985, no writ) City of Houston v. Levingston, 221 S.W.3d 204 (Tex. App. Houston 2006, no pet.) Jones v. City of Dallas, No CV, 2010 Tex. App. LEXIS 1660 (Tex. App. Dallas Mar. 10, 2010, no pet. h.)... 6 Robertson County v. Wymola, 17 S.W.3d 334 (Tex. App. Austin 2000, pet. denied) Rogers v. City of Fort Worth, 89 S.W.3d 265 (Tex. App. Fort Worth 2002, no pet.) State of Tex. v. Lueck, 290 S.W.3d 876 (Tex. 2009)... 6, 8, 9, 14, 9, 20, 21, 22, 23, 24, 29, x Tex. Dep't of Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393 (Tex. App. Austin 2005, pet. denied) Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)... 16, 26, 27, 29, 30 Texas Dep't of Transp. v. Needham, 82 S.W.3d 314 (Tex. 2002)... 8, 13, 20, 21, 30 Univ. of Tex. Sw. Medical Ctr. at Dallas v. Gentilello, 260 S.W.3d 221, 2008 Tex. App. LEXIS 5341 (Tex. App. Dallas 2008)... 2, 5, xi viii

10 University of Texas Southwestern Medical Center at Dallas v. Gentilello, 300 S.W.3d 753 (Tex. 2009)...xii, 6 Waco Ind. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000) Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)... 8 Statutes, Rules & Constitutions Page(s) 1 TEX. ADMIN.CODE TEX. ADMIN.CODE (a) TEX. ADMIN. CODE (a)(3) C.F.R (a)... 14, C.F.R (a) U.S.C. 1320a-7b(a)... 17, 18, 22, 23, U.S.C TEX. CIV. PRAC. & REM. CODE ANN (a)(8) TEX. GOV'T CODE ANN (a)... 8 TEX. GOV'T CODE ANN (a)... 8 TEX. GOV'T CODE (a) TEX. PENAL CODE 35A.02(a)(1)... 18, 22, 23, 39 TEX. R. APP. P. 38.1(g)... 1 ix

11 NO CV IN THE COURT OF APPEALS FIFTH DISTRICT AT DALLAS, TEXAS THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Appellant, v. LARRY M. GENTILELLO, M.D. Appellee. On Appeal from the 162 nd District Court Of Dallas County, Texas Cause No (Hon. Mary Murphy) BRIEF OF APPELLEE ON REMAND TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS: Appellee Larry M. Gentilello, M.D. ( Appellee or Dr. Gentilello ) submits this Brief of Appellee on Remand, in light of State of Texas v. Lueck, 290 S.W.2d 876 (Tex. 2009), and in accordance with this Court s request of February 17, x

12 I. STATEMENT OF THE CASE This is a whistleblower case, brought pursuant to chapter 554 of the Texas Government Code. Appellee Larry M. Gentilello, M.D. ( Appellee or Dr. Gentilello ) brought suit against Appellant The University of Texas Southwestern Medical Center at Dallas ( Appellant or UTSW ) alleging violation of the Whistleblower Act, and seeking reinstatement to his former positions, pursuant to the express terms of the statute. (1 CR 6-17). 1 In response, Appellant filed its Plea to the Jurisdiction, alleging it was entitled to sovereign immunity, (1 CR 22-27), and that Appellee s claims should be dismissed for lack of subject matter jurisdiction because Appellee failed to allege he reported to an appropriate law enforcement authority or held a good faith belief that the person to whom he reported was an appropriate law enforcement authority. (1 CR 23-24). The trial court conducted a hearing on July 3, 2007, and denied Appellant s plea. (1 RR 90; 1 CR 28). On July 18, 2008, in a published opinion authored by Justice Michael J. O Neill, in which Justice Joseph B. Morris, and Justice Mark Whittington joined, this Court affirmed the trial court s denial of Appellant s Plea to the Jurisdiction. Univ. of Tex. Sw. Medical Ctr. at Dallas v. Gentilello, 260 S.W.3d 221, 2008 Tex. App. LEXIS 5341 (Tex. App. Dallas 2008) (Apx. Tab B). Appellant filed a Petition for Review with the Supreme Court of Texas on September 30, 2008, and after a response and full briefing on the merits, the Supreme Court of Texas issued its Per Curiam Opinion reversing and remanding the case back to 1 Appellee refers to the Clerk s Record as (1 CR [page #] and the Reporter s Record of the July 3, 2007 hearing on Defendant s Plea to the Jurisdiction as (1 RR [page #]). Appellee also refers to the Billing Compliance Plan, attached as Exhibit 1 to the Reporter s Record, hereafter as BCP at [page #]. xi

13 this Court, to determine whether, under the analysis set forth in Lueck, Appellee has alleged a violation under the Whistleblower Act. See University of Texas Southwestern Medical Center at Dallas v. Gentilello, 300 S.W.3d 753 (Tex. 2009). II. RESPONSE TO ISSUES PRESENTED 1. Because Dr. Gentilello sufficiently alleged the elements of the Whistleblower Act within his petition, and because the evidence presented at the hearing on Appellant s jurisdictional plea supported the elements of the Whistleblower Act, the denial of the plea to the jurisdiction was proper. 2. Alternatively, should Dr. Gentilello s pleading be insufficient in light of State v. Lueck, because the pleading does not affirmatively negate the trial court s subject-matter jurisdiction, Dr. Gentilello is entitled to amend his pleading rather than a dismissal of his claim. xii

14 III. STATEMENT OF FACTS A. Objection to Improper Use of Argument Within Statement of Facts Dr. Gentilello objects to Appellant s argument contained throughout its Statement of Facts (Appellant s Brief at 4, 5, 7), and requests this Court disregard them. See Tex. R. App. P. 38.1(g) ( brief must state concisely and without argument the facts pertinent to the issues or points presented ). Accordingly, Dr. Gentilello objects to each statement of argument and presents hereinabove and within his argument his statement of facts for the Court s reliance. B. Factual Background 1. Dr. Gentilello Recognized Internationally as Leading Trauma Surgeon Dr. Gentilello was employed by UT Southwestern since 2003, holding the position of Chair of the Division of the Burn, Trauma and Critical Care. (1 CR 8, 11; 1 RR 8, 27). Dr. Gentilello was, and is, a tenured Professor of Surgery at UT Southwestern, and occupied the Distinguished C. James Carrico M.D. Chair in Trauma. (1 CR 8; 1 RR 8, 27). Dr. Gentilello s position was achieved through his long and distinguished career in the field of trauma medicine. (1 CR 8). Indeed, Dr. Gentilello has authored numerous articles in his field and has devised procedures used by trauma surgeons to save the lives of thousands of individuals across the country. (1 CR 8). Dr. Gentilello s success has been the focus of numerous articles, and he is recognized by his peers in the medical community as one the leading trauma surgeons in the world. (1 CR 8). BRIEF OF APPELLEE ON REMAND PAGE 1

15 2. Dr. Gentilello Became Aware of Improper Medical Care Rendered by Unsupervised Trauma Residents Participating in Residency Program and Violations of Medicare and Medicaid Billing Laws While serving in his capacity as Chair of the Division of Burn, Trauma and Critical Care at UT Southwestern, Dr. Gentilello became aware of certain practices occurring there regarding inadequate patient care, improper surgical resident supervision and failure to follow proper operating room and patient treatment protocol, all contrary to proper Medicare and Medicaid requirements and procedures. (1 CR 9, 11). Dr. Gentilello also became aware UT Southwestern billed Medicare and Medicaid for the attending physicians participation in the procedures even though the attending physician spent little or no time in the surgical suite during the procedure, in violation of federal and state health care programs, regulations, procedures, and guidelines. (1 RR 61). Dr. Gentilello became aware that trauma residents were treating patients and performing surgical procedures without the supervision of any attending trauma surgeon. 2 (1 CR 9, 11). Dr. Gentilello observed that patients at Parkland Hospital 3 were being treated by residents with no attending physicians present, were undergoing surgical procedures with no attending physicians present, and were undergoing surgical procedures with no attending physicians in the operating room during critical phases of surgery. (1 CR 9, 11). On the other hand, at Zale Lipshy Hospital, 4 attending physicians 2 The purpose of the residency program is for residents to receive training and experience in the area of trauma surgery by being able to observe experienced surgeons and also to be guided by these attending physicians so that mistakes will not be made and the health and safety of patients would not suffer. (1 CR 9). 3 The patients at Parkland typically consist of indigents and are primarily minorities. (1 CR 9). 4 Of course, patients receiving care at Zale Lipshy are not indigent. (1 CR 9). BRIEF OF APPELLEE ON REMAND PAGE 2

16 were present during the time that patients were treated and during the time that surgical procedures were performed. (1 CR 9). Dr. Gentilello, in good faith, reasonably believed that these practices violated Medicare and Medicaid rules, regulations, statutes, and ordinances. (1 CR 10, 11). Dr. Gentilello further believed that the practices were having an adverse effect upon the indigent patients receiving medical care and treatment at Parkland. (1 CR 10). 3. Dr. Gentilello Reported Illegal Activity Dr. Gentilello was concerned about his observations the lack of supervision of the trauma surgeon residents care of Parkland patients and the adverse medical results experienced, as well as the fraudulent billing through Medicare and Medicaid for professional services of attending physicians not present during surgery. (1 CR 9; 1 RR 61). Dr. Gentilello raised his concerns with Robert V. Rege, M.D. ( Dr. Rege ), the person at UT Southwestern responsible for setting policies regarding the presence of attending physicians during surgery and with the power to investigate these illegal activities and to correct such illegal practices. (1 CR 9-10, 11). 4. After the Report, Dr. Rege Retaliated Against Dr. Gentilello On March 5, 2007, Dr. Gentilello received a letter from Dr. Rege, explaining that Dr. Gentilello had, effective immediately, been demoted and stripped of the position of Chair of Division of Burn, Trauma and Critical Care, as well as the withdrawal of Dr. Gentilello from the position of the Distinguished C. James Carrico M.D. Chair in Trauma. (1 CR 10). This adverse personnel action was taken in retaliation for Dr. Gentilello s good faith report to Dr. Rege, the person whom Dr. Gentilello believed could BRIEF OF APPELLEE ON REMAND PAGE 3

17 investigate and address the allegations of activities violating Medicare and Medicaid rules and regulations, patient care and supervisory procedures and requirements. (1 CR 10, 11). Dr. Gentilello contended that the reporting of the illegal patient care and supervisory activities to Dr. Rege was a substantial factor and/or motivating factor in UT Southwestern s unlawful, adverse personnel action taken against him, and that such acts were in retaliation for his report and would not have occurred when they did but for the report. (1 CR 11). 5. Dr. Gentilello Suffered Damages as a Result of Adverse Personnel Action Taken by UT Southwestern UT Southwestern s unlawful adverse personnel action resulted in damages suffered by Dr. Gentilello, including past lost wages, past lost benefits, future lost earnings, future lost earning capacity, emotional pain, suffering, mental anguish, and loss of enjoyment of life. (1 CR 12). UT Southwestern s action caused irreparable harm to Dr. Gentilello s career and reputation, such that monetary damages will be inadequate to compensate him for his losses. (1 CR 12). The demotions and loss of chairs will make it difficult for Dr. Gentilello to obtain grants and funding for research so critical to the field of trauma medicine. (1 CR 12). Dr. Gentilello sought reinstatement of his position of Chair of Burn, Trauma and Critical Care at UT Southwestern, as well as reinstatement to the Distinguished C. James Carrico, M.D. Chair of Trauma. (1 CR 12). BRIEF OF APPELLEE ON REMAND PAGE 4

18 C. Procedural Background 1. Dr. Gentilello Files Original Petition Alleging Violation of the Whisleblower Act On June 14, 2007, Dr. Gentilello filed his Original Petition, alleging violation of the Whistleblower Act, seeking damages, reinstatement of his positions, as well as temporary and permanent injunctions against UT Southwestern, and attorney s fees. (1 CR 11-15). Dr. Gentilello obtained a temporary restraining order enjoining UT Southwestern from filling with another candidate the positions of Chair of Division of Burn, Trauma and Critical Care and the Distinguished C. James Carrico, M.D. Chair of Trauma, at UT Southwestern. (1 CR 18-19). The trial court set a hearing for the temporary injunction and set bond. (1 CR 19). On June 28, 2007, UT Southwestern filed a Plea to the Jurisdiction, alleging entitlement to sovereign immunity, and urging that Dr. Gentilello s claims be dismissed for lack of subject matter jurisdiction. (1 CR 22-27). Specifically, UT Southwestern alleged that Dr. Gentilello failed to allege that he had a good faith belief that Dr. Rege had been delegated federal enforcement authority by Medicare or Medicaid statutes or regulations, and that absent such allegations, sovereign immunity had not been waived. (1 CR 24). 2. July 3, 2007 Hearing on Plea to the Jurisdiction The trial court conducted a hearing on July 3, 2007, and denied UT Southwestern s plea to the jurisdiction. (1 RR 90). Appellant agreed to extend the temporary restraining order issued by the trial court prior to the July 3, 2007 hearing. (1 BRIEF OF APPELLEE ON REMAND PAGE 5

19 RR 96, 99; 1 CR 28). The trial court signed an order memorializing the ruling on the Plea to the Jurisdiction (1 CR 28), and this appeal followed. (1 CR 29). 3. July 18, 2008 Judgment and Opinion On July 3, 2007, Appellant filed its Notice of Appeal with the trial court, resulting in the automatic statutory stay of all the underlying proceedings, pursuant to section (b) of the Texas Civil Practice and Remedies Code. (1 CR 29-30). On July 18, 2008, in a published opinion authored by Justice Michael J. O Neill, in which Justice Joseph B. Morris, and Justice Mark Whittington joined, this Court affirmed the trial court s denial of Appellant s Plea to the Jurisdiction. Univ. of Tex. Sw. Medical Ctr. at Dallas v. Gentilello, 260 S.W.3d 221, 2008 Tex. App. LEXIS 5341 (Tex. App. Dallas 2008) (Apx. Tab B). 4. December 18, 2009 Per Curiam Opinion Appellant filed its Petition for Review with the Supreme Court of Texas on September 30, 2008, Appellee filed a response on January 9, 2009, and Appellant filed its reply on January 23, On July 2, 2009, the Texas Supreme Court requested the parties to submit briefing on the merits. Appellant filed its Brief on September 2, 2009, Appellee filed his Response Brief on October 26, 2009, and Appellant filed its Reply Brief on November 6, On December 18, 2009, the Texas Supreme Court issued its Per Curiam Opinion, reversing and remanding the case back to this Court, to determine whether, under the analysis set forth in Lueck, Appellee has alleged a violation under the Whistleblower Act. See University of Texas Southwestern Medical Center at Dallas v. Gentilello, 300 S.W.3d 753 (Tex. 2009). BRIEF OF APPELLEE ON REMAND PAGE 6

20 IV. SUMMARY OF THE ARGUMENT This Court should affirm the trial court s denial of Appellant s plea to the jurisdiction. The Supreme Court explained that its holding in State v. Lueck that the Whistleblower Act s section (a) elements must be included within the pleadings to determine whether they sufficiently allege a violation under the Act did not mean that a claimant must prove his claim to satisfy the jurisdictional hurdle, and this Court has recognized its instruction that the burden of proof with respect to the jurisdictional facts does not involve a significant inquiry into the substance of the claims. Lueck, 290 S.W.3d at 884; Jones v. City of Dallas, No CV, 2010 Tex. App. LEXIS 1660, *8-9 (Tex. App. Dallas Mar. 10, 2010, no pet. h.). First, applying the supreme court s holding, Dr. Gentilello sufficiently set forth allegations of Appellant s direct violation of the Texas Whistleblower Act in his Original Petition, and Dr. Gentilello s pleading did not negate the subject-matter jurisdiction of the trial court, as did Lueck s. Dr. Gentilello did not simply allege possible regulatory noncompliance, and further, no allegation or evidence adduced at the hearing conclusively established that Dr. Gentilello did not form a good faith belief that Dr. Rege was authorized to investigate the violations of Medicare and Medicaid requirements that violate both federal and Texas criminal law he asserted. Further, Appellant mischaracterizes the pleading and evidence to attempt to fit it within the Lueck holding, by claiming that the pleading alleged only that Dr. Rege was the appropriate law enforcement authority because he had the authority to internally investigate. And, contrary to Appellant s characterization, the undisputed evidence did BRIEF OF APPELLEE ON REMAND PAGE 7

21 not confirm that Dr. Gentilello s allegations are incurably defective. Rather, the evidence was that Dr. Gentilello formed a good-faith, reasonable belief that Dr. Rege was an appropriate law enforcement authority to investigate a violation of the Medicare and Medicaid regulations constituting a violation of criminal law. Indeed, Dr. Rege himself testified that he did have the authority to investigate, and that he did conduct an investigation of Dr. Gentilello s allegations. Alternatively, if Dr. Gentilello s petition did not sufficiently allege the jurisdictional facts, this Court should remand to allow Dr. Gentilello the opportunity to do so. Indeed, where the pleadings do not affirmatively negate the existence of subjectmatter jurisdiction, dismissal is improper and an opportunity to amend after proper discovery is required. V. ARGUMENT AND AUTHORITIES A. The Trial Court Correctly Found and Exercised Jurisdiction Over Dr. Gentilello s Lawsuit Appellant incorrectly asserts that the trial court lacked subject matter jurisdiction over Dr. Gentilello s suit for Appellant s Whistleblower Act violations. (Appellant s Brief at *15). Dr. Gentilello sufficiently set forth an allegation of Appellant s direct violation of the Texas Whistleblower Act in his Original Petition, and the limited evidence presented to the trial court established Dr. Gentilello had a good-faith belief that Dr. Rege was an appropriate law enforcement authority who could investigate violations of the law. BRIEF OF APPELLEE ON REMAND PAGE 8

22 B. Whistleblower Act Requires an Allegation of Violation of the Act for Waiver of Immunity from Suit and Lueck Requires the Act s Elements Be Included Within the Pleadings to Determine Whether They Sufficiently Allege A Violation of the Act to Constitute Waiver of Immunity from Suit The Whistleblower Act prohibits a state or local governmental entity from taking adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. State of Tex. v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009) (quoting TEX. GOV'T CODE ANN (a) (Vernon 2004); Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 317 (Tex. 2002) (quoting TEX. GOV'T CODE ANN (a)). A public employee whose employment is suspended or terminated or who is subjected to an adverse personnel action in violation of Section is entitled to sue for: (1) injunctive relief; (2) actual damages; (3) court costs; and (4) reasonable attorney's fees. TEX. GOV'T CODE ANN (a). To effectuate this cause of action, the Whistleblower Act waives sovereign immunity from suit and from liability: A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. 5 Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter. 6 5 The Supreme Court of Texas explained that this sentence of the subsection waives immunity for suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, n.6 (Tex. 2003). 6 This sentence of the subsection waives immunity from liability. See Wichita Falls State Hosp., 106 S.W.3d at 696 n.5. However, the Supreme Court further clarified its statement in Wichita Falls State Hospital, within Lueck, and concluded that the second sentence confines the scope of the State s consent to suit that was established in the first sentence. Lueck, 290 S.W.3d at 882. Thus, it concluded, like the Tort Claims Act, the Whistleblower Act imposes a limited waiver of immunity that allows consideration of the section (a) elements, to the extent necessary in determining whether a claim falls within the jurisdictional confines of section Id. BRIEF OF APPELLEE ON REMAND PAGE 9

23 Id (Vernon 2004) (emphasis added); Lueck, 290 S.W.3d at 882. The Supreme Court of Texas explained in Lueck that a court may consider the elements under section (a) to ascertain what constitutes a violation, and whether that violation has actually been alleged. Lueck, 290 S.W.3d at 881. The elements of section (a) can be considered as jurisdictional facts, when it is necessary to resolve whether a plaintiff has alleged a violation under the Act. Id. In Lueck, the supreme court held that Lueck s pleadings affirmatively negated jurisdiction where he alleged possible regulatory non-compliance based on an internal policy recommendation rather than a violation of law under which a law enforcement authority regulates or enforces within the meaning of the Whistleblower Act. Id. at 885. The court further held that Lueck s supervisor was not an appropriate law enforcement authority to whom a report should be made because as the head of a division of TxDOT, [he] could neither regulate nor enforce the law that Lueck alleged had been violated. Id. The court explained that Lueck s evidence attached to his petition (an to his supervisor) indicated he knew that his supervisor was not the proper authority within TxDOT to regulate the reported violations because Lueck suggested his supervisor have Lueck s readily available discussing the issue with other TxDOT divisions. Id. at 886. The court explained that this evidence conclusively established that Lueck could not have formed a good-faith belief that his supervisor was authorized to enforce such violations. Id. The court concluded that as a matter of law, Lueck s pleadings affirmatively demonstrated that he did not allege a violation under the Whistleblower Act. Id. BRIEF OF APPELLEE ON REMAND PAGE 10

24 C. Dr. Gentilello s Petition Sufficiently Sets Forth Factual Allegations that Appellant Violated the Texas Whistleblower Act Appellant contends that Dr. Gentilello failed to carry his burden to sufficiently allege facts affirmatively demonstrating the trial court s subject-matter jurisdiction. (Appellant s Brief at 14). Appellant s arguments are fundamentally flawed in at least two respects. First, Appellant misapplies the holding in Lueck and misconstrues the plain statutory language under section Second, Appellant fails to recognize the clear distinction between Dr. Gentilello s case and that presented in Lueck. 1. Dr. Gentilello Sufficiently Alleged the Violation of Law by Appellant a. Appellant s Illegal Conduct Dr. Gentilello s Original Petition alleged the following, to which no special exceptions were filed by Appellant: a. Dr. Gentilello is an employee of UT Southwestern, an entity of the State of Texas, since 2003 (1 CR 8, 11); b. Dr. Gentilello held the position of Chair of Division of Burn, Trauma and Critical Care, and was, and is, a tenured Professor of Surgery at UT Southwestern (1 CR 8); c. Dr. Gentilello also occupied the Distinguished C. James Carrico, M.D. Chair in Trauma (1 CR 8); d. While serving in his capacity as Chair of the Division of Burn, Trauma and Critical Care at UT Southwestern, Dr. Gentilello became aware of and had a good faith belief that certain practices occurring there BRIEF OF APPELLEE ON REMAND PAGE 11

25 regarding inadequate patient care, improper surgical resident supervision and failure to follow proper operating room and patient treatment protocol, all contrary to proper state and federal Medicare and Medicaid requirements and procedures. (1 CR 9, 11); e. Dr. Gentilello became aware that trauma residents were treating patients and performing surgical procedures without the supervision of any attending trauma surgeon (1 CR 9, 11); f. Dr. Gentilello observed that patients at Parkland Hospital were being treated by residents with no attending physicians present, were undergoing surgical procedures with no attending physicians present, and were undergoing surgical procedures with no attending physicians in the operating room during critical phases of surgery (1 CR 9, 11); g. Dr. Gentilello, in good faith, believed that these practices violated state and federal Medicare and Medicaid rules, regulations, statutes and ordinances (1 CR 10); h. Dr. Gentilello raised his concerns regarding illegal practices with Dr. Rege, the person at UT Southwestern who set the policies regarding presence of attending physicians during surgery and who had the power to investigate these illegal activities and bring about an end to them (1 CR 10); BRIEF OF APPELLEE ON REMAND PAGE 12

26 i. Dr. Gentilello believed in good faith that Dr. Rege had the authority to investigate and correct such illegal practices and notified Dr. Rege of these activities (1 CR 11); j. On March 5, 2007, Dr. Gentilello received a letter from Dr. Rege, explaining that Dr. Rege was stripping Dr. Gentilello of the position of Chair of Division of Burn, Trauma and Critical Care as well as withdrawing Dr. Gentilello from the position of the Distinguished C. James Carrico, M.D. Chair in Trauma (1 CR 10); k. The demotion and stripping of title was effective March 5, 2007; l. The reporting of these illegal practices resulted in Appellee taking he adverse personnel action against Dr. Gentilello (1 CR 11); m. This adverse personnel action was taken in retaliation for Dr. Gentilello s good faith report to the person Dr. Gentilello in good faith believed could investigate and address the allegations and activities violating Medicare and Medicaid patient care and supervisory procedures and requirements (1 CR 10); n. These adverse personnel actions were taken in violation of Texas Government Code section (1 CR 11); o. Dr. Gentilello s reporting of these illegal patient care and supervisory activities to Dr. Rege was a substantial and/or motivating factor in UT Southwestern s unlawful adverse personnel action taken against him BRIEF OF APPELLEE ON REMAND PAGE 13

27 and that such acts were in retaliation for Dr. Gentilello s report, and would not have occurred when they did but for the report (1 CR 11); p. UT Southwestern s adverse personnel action resulted in damages suffered in the form of past lost wages, past lost benefits, future lost earnings, future lost earning capacity, emotional pain, suffering, mental anguish and loss of enjoyment of life (1 CR 12); and q. Dr. Gentilello seeks unliquidated damages and reinstatement (1 CR 12). This pleading appropriately alleged and invoked the Whistleblower Act s waiver of immunity from suit under Lueck. And, applying the Needham good faith test, Dr. Gentilello s pleading properly alleged that he made a good faith report of a violation of law to Dr. Rege, and that the report was, in good faith, made to an appropriate law enforcement authority whom Dr. Gentilello believed could investigate the reported violation of law and correct the illegal practices. See Needham, 82 S.W.3d at Indeed, the Petition states that Dr. Gentilello became aware of certain practices taking place at [UTSW] regarding inadequate patient care, improper surgical resident supervision and failure to follow proper operating room and patient treatment protocol, all of which ran contrary to proper Medicare and Medicaid requirements and procedures. (1 CR 9). One of Dr. Gentilello s primary contentions is that residents were, and still are, treating and performing unsupervised surgeries upon patients at Parkland, and this lack of supervision has caused Parkland s patients to suffer adverse medical results. (1 CR 9). Dr. Gentilello re-alleged these concerns in Count 1 of his Original Petition. (1 CR 10-11). BRIEF OF APPELLEE ON REMAND PAGE 14

28 The Medicare and Medicaid provisions consist of a substantial number of rules, regulations, and statutes, both under federal law and state law. Appellant did not specially except to the lack of a pleading as to the specific portions of the law Dr. Gentilello alleged Appellant violated, as it surely could have. See Lueck, 290 S.W.3d at 884; Appellant s Brief at n.3). Nonetheless, by way of reference, as a condition of participation in the Medicare and Medicaid programs and to receive benefits under those programs, a hospital must be in compliance with applicable Federal laws related to the health and safety of patients. 42 C.F.R (a); see also 1 TEX. ADMIN. CODE (a)(3) (The Medicaid provider agreement requires the hospital to comply with the terms of the agreement and all requirements of the Medicaid program, including regulations, rules, handbooks, standards, and guidelines published by the department or its designee. ). Further, [t]he hospital must assure that personnel are licensed or meet other applicable standards that are required by State or local laws. 42 C.F.R (c). In addition to these conditions of participation, [i]f emergency services are provided at the hospital, the hospital must comply with the requirements of , which states [t]he emergency services must be supervised by a qualified member of the medical staff. Id (f)(1), (b)(1). The Medicare and Medicaid regulations also set forth patient s rights, including (1) The patient has the right to participate in the development and implementation of his or her plan of care. (2) The patient or his or her representative (as allowed under state law) has the right to make informed decisions regarding his or her care. The patient s rights include being informed of his or her health status, being BRIEF OF APPELLEE ON REMAND PAGE 15

29 involved in care planning and treatment, and being able to request or refuse treatment. This right must not be construed as a mechanism to demand the provision of treatment or services deemed medically unnecessary or inappropriate. Id (b); see also 1 TEX. ADMIN CODE (creating a Member Bill of Rights, including allowing the patient to have your provider explain your health care needs to you and talk to you about the different ways your health care problems can be treated, to consent to or refuse treatment and actively participate in treatment decisions, and say yes or no to the care recommended by your provider. ). Further, the Medicare provisions state [i]f a resident participates in a service furnished in a teaching setting, physician fee schedule payment is made only if a teaching physician is present during the key portion of any service or procedure for which payment is sought. 42 C.F.R (a); see 1 TEX. ADMIN CODE (a) (Reimbursement for physician services occurs for reasonable and medically necessary services that are provided by or under the personal supervision of a physician. ) (emphasis added). When a resident performs surgical, high-risk, or other complex procedures, the teaching physician must be present during all critical portions of the procedure and immediately available to furnish services during the entire service or procedure. 42 C.F.R (a)(1); see 1 TEX. ADMIN. CODE (b) ( For major surgical procedures and other complex and dangerous procedures or situations, the attending physician must be physically present during the procedure or situation to provide and identifiable direction. ) (emphasis added). These are the violations of laws Dr. Gentilello alleged he raised with Dr. Rege. In the absence of a special exception to the lack of a specific code number, or other BRIEF OF APPELLEE ON REMAND PAGE 16

30 reference to those Medicare and Medicaid statutes, rules, regulations, and laws, and construing his pleading liberally, as this Court must, 7 Dr. Gentilello sufficiently pleaded a violation of the Whistleblower Act in accordance with Lueck. b. Violations of Criminal Law Appellant further contends that, even if such rules and regulations were violated, Dr. Gentilello did not allege that any criminal law was violated. (Appellant s Brief at 17). Appellant wholly failed to specially except to Dr. Gentilello s pleading at any time. Nonetheless, by way of reference, Appellant s refusal to adhere to the conditions of participation and payment under the Medicare laws are per se criminal violations under the United States Code and the Texas Penal Code. As the Code states: Whoever (1) knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under a Federal health care program (as defined in subsection (f) of this section), (2) at any time knowingly and willfully makes or causes to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment (5) presents or causes to be presented a claim for a physician s service for which payment may be made under a Federal health care program and knows that the individual who furnished the service was not licensed as a physician shall (i) in the case of such a statement, representation, concealment, failure, or conversion by any person in connection with the furnishing (by that person) of items or services for which payment is or may be made under the 7 Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) BRIEF OF APPELLEE ON REMAND PAGE 17

31 program, be guilty of a felony and upon conviction thereof fined not more than $25,000 or imprisoned for not more than five years or both, or (ii) in the case of such a statement, representation, concealment, failure, conversion, or provision of counsel or assistance by any other person, be guilty of a misdemeanor and upon conviction thereof fined not more than $10,000 or imprisoned for not more than one year, or both. In addition, in any case where an individual who is otherwise eligible for assistance under a Federal health care program is convicted of an offense under the preceding provisions of this subsection, the administrator of such program may at its option (notwithstanding any other provision of such program) limit, restrict, or suspend the eligibility of that individual for such period (not exceeding one year) as it deems appropriate; but the imposition of a limitation, restriction, or suspension with respect to the eligibility of any individual under this sentence shall not affect the eligibility of any other person for assistance under the plan, regardless of the relationship between that individual and such other person. 42 U.S.C. 1320a-7b(a) (emphasis added). Section 1320a-7b(c) also provides Whoever knowingly and willfully makes or causes to be made, or induces or seeks to induce the making of, any false statement or representation of a material fact with respect to the conditions or operation of any institution, facility, or entity in order that such institution, facility, or entity may qualify (either upon initial certification or upon recertification) as a hospital, critical access hospital, skilled nursing facility, nursing facility, intermediate care facility for the mentally retarded, home health agency, or other entity (including an eligible organization under section 1395mm (b) of this title) for which certification is required under subchapter XVIII of this chapter or a State health care program (as defined in section 1320a 7 (h) of this title), or with respect to information required to be provided under section 1320a 3a of this title, shall be guilty of a felony and upon conviction thereof shall be fined not more than $25,000 or imprisoned for not more than five years, or both. 42 U.S.C. 1320a-7b(c) (emphasis added). Subchapter XVIII of the chapter is the Medicare program, entitled HEALTH INSURANCE FOR AGED AND DISABLED. Section 1320a-7(h) includes programs under subchapter XIX of Title 42, which includes the Texas Medicaid program. See 42 BRIEF OF APPELLEE ON REMAND PAGE 18

32 U.S.C. 1396, et. seq. Essentially, anyone who knowingly and willfully makes any false statement to be made with respect to the conditions or operation of any hospital to qualify for certification under Medicare or Medicaid is guilty of a felony. See 42. U.S.C. 1320a-7b(c). Further, Texas Penal Code Chapter 35A provides criminal penalties for similar misrepresentation. (a) A person commits an offense if the person: (1) knowingly makes or causes to be made a false statement or misrepresentation of a material fact to permit a person to receive a benefit or payment under the Medicaid program that is not authorized or that is greater than the benefit or payment that is authorized; (2) knowingly conceals or fails to disclose information that permits a person to receive a benefit or payment under the Medicaid program that is not authorized or that is greater than the benefit or payment that is authorized; (3) knowingly applies for and receives a benefit or payment on behalf of another person under the Medicaid program and converts any part of the benefit or payment to a use other than for the benefit of the person on whose behalf it was received; (4) knowingly makes, causes to be made, induces, or seeks to induce the making of a false statement or misrepresentation of material fact concerning: (A) the conditions or operation of a facility in order that the facility may qualify for certification or recertification required by the Medicaid program, including certification or recertification as: (i) a hospital. TEX. PENAL CODE 35A.02(a)(1)-(4) (emphasis added). Violating this chapter of the Texas Penal Code gives rise to misdemeanor and felony offenses. See id. at 35A.02(b). BRIEF OF APPELLEE ON REMAND PAGE 19

33 Dr. Gentilello informed Dr. Rege of the illegal practices he, in good faith reasonably believed violated Medicare and Medicaid rules, regulations, statutes, and ordinances, and further believed were having an adverse effect upon indigent patients receiving treatment at Parkland Hospital. The concerns Dr. Gentilello raised to Dr. Rege were direct violation of the conditions of participation in Medicare and Medicaid, and constituted allegations of direct violation of Texas and federal criminal laws. Appellant failed to specially except to the specificity of the pleading regarding the Medicare and Medicaid violations. Liberally construing Dr. Gentilello s pleading, as this Court must, he sufficiently alleged a violation of the Whistleblower Act, and the trial court appropriately denied Appellant s plea to the jurisdiction. See Lueck, 290 S.W.3d at Dr. Gentilello Sufficiently Alleged He Believed, in Good Faith, That Dr. Rege Was Authorized to Investigate and Correct the Illegal Activities Occurring at UTSW In addition to the erroneous statement that Dr. Gentilello did not allege that UTSW violated any criminal laws, Appellant also asserts Dr. Gentilello did not allege that anyone at UTSW was authorized to investigate or prosecute a violation of criminal law. (Appellant s Brief at 18). The pleading shows otherwise. On multiple occasions, Dr. Gentilello alleged in his position that he, in good faith, believed Dr. Rege had the power to investigate the illegal activities that were and still are occurring at UTSW. (1 CR 9, 10, 11). Specifically, Dr. Gentilello alleges, Plaintiff, believing in good faith that Robert V. Rege, M.D. had the authority to investigate and correct such illegal practices, notified Rege of these [illegal] activities. (1 CR 11). A BRIEF OF APPELLEE ON REMAND PAGE 20

34 plain reading of Dr. Gentilello s Original Petition shows Appellant s contention that Dr. Gentilello never alleged that anyone at UTSW was authorized to investigate a violation of criminal law is entirely without merit. Further, Appellant argues, citing to Lueck, that Dr. Gentilello failed to allege a violation under (b)(2) because he failed to allege he reported to law enforcement personnel who investigate (e.g., the police), or who prosecute (e.g., the district attorney) violations of criminal law. (Appellant s Brief at 18). Appellant contends that because Dr. Gentilello cannot and does not allege that Dr. Rege has any law-enforcement authority to investigate or prosecute a violation of criminal law, nor could he possibly allege that he had any good-faith, reasonable belief that [Dr.] Rege could do so in light of Lueck, Dr. Gentilello s allegations are incurably deficient and dismissal is required. (Id.). A plain reading of Lueck does not require that a law enforcement authority who investigates to be a police officer or district attorney. Rather, Lueck instructs that it is the particular violation alleged that bears on the appropriate law enforcement authority to whom a whistleblower must report. See Lueck, 290 S.W.3d at 886 (citing Needham, 82 S.W.3d at (interpreting allegation that employee reported co-employee s drunk driving leading to adverse personnel action and concluding that TxDOT does not have authority to regulate under, enforce, investigate, or prosecute a violation of Texas s BRIEF OF APPELLEE ON REMAND PAGE 21

35 driving while intoxicated laws because TxDOT could only regulate and investigate to carry out internal disciplinary process procedures) 8 ). This case does not involve allegations of violations of criminal law that are enforced by district attorneys or investigated by police. Rather, because Dr. Gentilello alleged Appellant participated in illegal activities involving improper resident supervision that constituted violations of the Medicare and Medicaid regulations applied to hospitals, teaching physicians, and medical schools such as Appellant, and alleged that Dr. Rege, 9 who, Dr. Gentilello, in good-faith, reasonably believed had authority to investigate and correct such illegal practices, Dr. Gentilello was not required to allege that he reported to either a police officer or district attorney or other law enforcement personnel to sufficiently plead a violation of the Whistleblower Act. See Lueck, 290 S.W.3d at 884; Needham, 82 S.W.3d at In summary, Dr. Gentilello s petition alleges a violation of section : Dr. Gentilello reported illegal activities to Dr. Rege, the person Dr. Gentilello in good-faith believed had the authority to investigate these criminal actions, 8 Needham provided the supreme court with its first opportunity to interpret the term appropriate law enforcement authority. Id. at 318. The court of appeals in that case had concluded that TxDOT s disciplinary action policy gives it the power to discipline an employee on account of an alleged violation being reported. Id. at 317. Further, the court of appeals held that TxDOT s power to discipline its employees arose under its progressive disciplinary action policy. Id. at 319. The supreme court held that the court of appeals improperly expanded the present definition of appropriate law enforcement authority based upon a prior court of appeals opinion in City of Dallas v. Moreau, 697 S.W.2d 472 (Tex. App. Dallas 1985, no writ). Here, Dr. Gentilello has not alleged that Dr. Rege could rely on upon internal policies or procedures to investigate and discipline Appellant s employees. Rather, Dr. Gentilello has alleged that he believes in good faith that Dr. Rege, the Department Chair, could investigate and correct the violations of Medicare and Medicaid law arising from Appellant s providing unsupervised surgeries by residents. (1 CR 10-11). Dr. Gentilello has not limited his allegations to internal discipline or policy. 9 Dr. Gentilello alleged that Dr. Rege did not disagree with Dr. Gentilello s findings of improper resident supervision, and that when Dr. Gentilello informed Dr. Rege that he would like to address the matters with the Dean of the Medical School, Dr. Rege informed him that he would be aware of any meetings Plaintiff had with the Dean. (1 CR 10). BRIEF OF APPELLEE ON REMAND PAGE 22

36 and that Appellant retaliated against Dr. Gentilello by stripping him of his chair positions and demoting Dr. Gentilello. 3. Appellant Mischaracterizes the Basis for the Holding in Lueck Appellant relies Lueck to supports its assertion that Dr. Gentilello failed to allege a violation of the Whistleblower Act in his Original Petition. However, Lueck contained factual analysis which is significantly different from Dr. Gentilello s case and is not determinative of Dr. Gentilello s allegations that Dr. Rege is an appropriate law enforcement authority. The Supreme Court in Lueck concluded that a state employee failed to allege a violation of the Texas Whistleblower Act. Lueck, 290 S.W.3d at 886. The Court held that Lueck affirmatively negated the trial court s subject-matter jurisdiction because Lueck s report only warned of regulatory non-compliance, not a violation of law and an agency supervisor is not an appropriate law enforcement authority to whom a report should be made. Id. at 878. These issues do not factor into Dr. Gentilello s case. As noted in more detail above, as the illegal acts alleged by Dr. Gentilello in his Original Petition constitute clear violations of law. See 42 U.S.C. 1320a-7b(a), (c).; TEX. PENAL CODE 35A.02. The supreme court s analysis of whether Lueck alleged a violation of the law to an appropriate law enforcement authority is inapplicable to Dr. Gentilello s suit. Lueck was limited to a review of a plaintiff s pleadings, 10 which the Court held affirmatively 10 The Court never reached the matter of whether evidence on the elements should be considered in a plea to the jurisdiction because Lueck s pleadings affirmatively negate the trial court s jurisdiction as a matter of law. Id. at 886 n.3. BRIEF OF APPELLEE ON REMAND PAGE 23

37 demonstrate that he did not allege a violation under the Whistleblower Act. Id. at 886. As mentioned, the supreme court found Lueck s pleadings affirmatively negate[d] the existence of a reported violation as required by section (a). Id. at 885. The Court held Lueck, at most, alleged a prediction of possible regulatory non-compliance rather than a violation of law as the Whistleblower Act requires. Id. While the Supreme Court may have looked beyond the allegations themselves, 11 it did not; Lueck attached an to his petition which then became part of Lueck s pleadings. See Lueck, 290 S.W.3d at 886. The court concluded that the indicated Lueck knew that his supervisor was not the proper authority, and therefore, Lueck could not have had a good-faith belief that his supervisor was an appropriate law enforcement authority. Id. at 23. Dr. Gentilello s pleadings, however, do not negate the existence of a violation. Appellant incorrectly interprets Lueck to mean that a supervisor can never be an appropriate law enforcement authority. (See Appellant s Brief at 9, 18, 25). But the holding applied to Lueck based on the evidence that became a part of Lueck s pleadings, and was based on those facts and circumstances. Unlike the plaintiff in Lueck, Dr. Gentilello s petition sufficiently sets forth a violation of the Texas Whistleblower Act. Dr. Gentilello s petition alleges that Appellant was engaged in conduct constituting violations of law which could subject Appellant to criminal penalties. See 42 U.S.C. 1320a-7b(a), (c); TEX. PENAL CODE 35A.02. Dr. Gentilello does not face the pleading shortcomings of Lueck in pleading a violation of law. 11 See Appellant s Brief at *18. BRIEF OF APPELLEE ON REMAND PAGE 24

38 Further, Dr. Gentilello alleged a direct violation of the Whistleblower Act. Dr. Gentilello alleged that he was a public employee. (1 CR 8). Dr. Gentilello further alleged that surgical residents were performing procedures without proper supervision of any attending physicians. (1 CR 9, 11). Dr. Gentilello alleged that he, in good faith, believed such unsupervised surgeries were illegal and in direct violation of state and federal Medicare and Medicaid laws. (1 CR 10). Dr. Gentilello brought these concerns to Dr. Rege, appointed as Director of Billing Compliance by Appellant, and alleged that Dr. Gentilello had a good-faith belief that Dr. Rege had the power to investigate and correct these illegal violations of state and federal laws. (1 CR 9-11). Dr. Gentilello also alleged that, due to his reporting of Appellant s violations of law to Dr. Rege, Appellant took an adverse personnel action against him by demoting Dr. Gentilello by stripping him of his chair positions. (1 CR 10-11). Based upon the allegations made in his petition, Dr. Gentilello s pleadings do not negate a violation of the Texas Whistleblower Act. Dr. Gentilello s petition sets forth facts and allegations which, if true, would show that Appellant, a state governmental entity, took an adverse personnel action against Dr. Gentilello, a public employee, after Dr. Gentilello made a good-faith report of a violation of law by Appellant to Dr. Rege, Clinical Department Chair, and whom Dr. Gentilello believed, in good faith, could investigate and correct violations of civil and criminal law. Because Dr. Gentilello properly pleaded a violation of the Texas Whistleblower Act, Lueck does not support dismissal of Dr. Gentilello s whistleblower claim. See Lueck, 290 S.W.3d at BRIEF OF APPELLEE ON REMAND PAGE 25

39 4. Appellant s Arguments Require This Court to Construe Dr. Gentilello s Petition in His Favor and Review the Entire Record to Determine Whether Any Evidence Exists to Support His Assertion For the first time on appeal, Appellant made additional arguments outside its plea to the jurisdiction concerning the trial court s lack of subject matter jurisdiction. Appellant s sole challenge to Dr. Gentilello s pleadings in its plea to the jurisdiction was (1 CR 24). Plaintiff does not allege that he had a good faith belief that Dr. Rege had been delegated federal enforcement authority by Medicare or Medicaid statutes or regulations. Absent such a specific allegation, plus alleged facts to support such a belief, Plaintiff has not alleged that he reported to an appropriate law enforcement authority. Appellant now urges that the evidence negated Dr. Gentilello s good-faith belief that Dr. Rege was an appropriate law enforcement authority. Further, Appellant has asserted that Dr. Gentilello did not allege violations of criminal law or other violations of law. Neither argument was contained in Appellant s plea to the jurisdiction. (1 CR 22-27). Therefore, neither of these new contentions was addressed in the trial court s order, and as the court of appeals noted, no appellate jurisdiction exists to consider grounds outside those raised in the plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN (a)(8); City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, (Tex. App. Dallas 2003, pet. denied); City of Dallas v. Heard, 252 S.W.3d 98, 103 (Tex. App. Dallas 2008, no pet.). However, even if the court can consider grounds outside Appellant s plea to the jurisdiction, the supreme court has set forth the proper standard of review for grounds raised for the first time on appeal. As a safeguard then, we construe the petition in favor BRIEF OF APPELLEE ON REMAND PAGE 26

40 of the party asserting that the court has subject matter jurisdiction and review the entire record to ascertain if any evidence supports that assertion. Waco Ind. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853 (Tex. 2000). A review of the pleadings and evidence reveals that Appellant failed to conclusively establish Dr. Gentilello did not have a good-faith belief that Dr. Rege was an appropriate law enforcement authority. Dr. Gentilello s pleadings sufficiently allege a violation of section (a), and the evidence adduced at the hearing on the plea to the jurisdiction that supports his pleadings, as further discussed below. 5. In the Alternative, if the Court Concludes Dr. Gentilello s Petition Does Not Contain Sufficient Facts to Demonstrate Jurisdiction, Dr. Gentilello Should Be Permitted to Amend His Pleadings to More Fully Plead Facts to Support His Claim If the pleadings do not contain sufficient facts to affirmatively demonstrate the district court's jurisdiction but likewise do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the Dr. Gentilello should be afforded the opportunity to amend. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002)). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Miranda, at 227. Accordingly, although Dr. Gentilello contends that his Petition adequately pleads the facts necessary to establish waiver of immunity to suit, should this Honorable Court conclude otherwise, Dr. Gentilello urges that the pleading does not affirmatively negate BRIEF OF APPELLEE ON REMAND PAGE 27

41 the existence of jurisdiction and respectfully requests the Court allow him the opportunity to amend rather than dismissing his case, as Appellant urges. See id. D. Evidence Presented at the Hearing on Appellant s Plea to the Jurisdiction Shows Dr. Gentilello s Good-Faith Belief that Dr. Rege Was an Appropriate Law Enforcement Authority A plea to the jurisdiction should be decided without delving into the merits of the case, and to establish a reason why the merits of the plaintiff s claims should never be reached. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Nonetheless, the trial court may hear evidence as necessary to determine the issue of subject-matter jurisdiction before proceeding with the case. See id. Appellant asserts Dr. Gentilello s Whistleblower allegations are incurably invalid because the evidence established Dr. Gentilello did not have a good-faith belief that Dr. Rege was an appropriate law enforcement authority within the meaning of section In fact, the plain language of the statute, the allegations contained in Dr. Gentilello s Original Petition, and the evidence presented at the hearing on Appellant s plea to the jurisdiction illustrate the deficiencies in Appellant s argument as well as the jurisdictional facts which support Dr. Gentilello s properly alleged violation of the Texas Whistleblower Act. 1. Appropriate Law Enforcement Authority Is Not Limited to One with Authority to Regulate or Enforce the Laws Appellant s primary contention, as it readily sets forth throughout its brief and argued at the hearing on the plea to the jurisdiction, is that Dr. Gentilello s Original Petition fails to allege a violation of the Texas Whistleblower Act because Dr. Gentilello failed to allege Dr. Rege could enforce or regulate the Medicare and Medicaid statutes. BRIEF OF APPELLEE ON REMAND PAGE 28

42 However, Appellant s argument would impermissibly limit the plain language of the Texas Whistleblower Act. Section (a) provides A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. TEX. GOV T CODE (a). An appropriate law enforcement authority is further defined by the Government Code. In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law. Id (b) (emphasis added). Under the plain language of the statute, an appropriate law enforcement authority is an authority that the employee in good faith believes may regulate the law alleged to be violated in the report or enforce the law alleged to be violated in the report or investigate a violation of criminal law or prosecute a violation of criminal law. Id. According to Dr. Gentilello s evidence and authority relied upon at the hearing on the plea to the jurisdiction, the Attorney General agrees and has stated within the State s own publication that Whether an authority is appropriate depends upon the particular circumstances of each case and is not limited to criminal law enforcement authorities. (RR 10, Plaintiff s Exhibit 405, Apx. Tab D (emphasis added)). BRIEF OF APPELLEE ON REMAND PAGE 29

43 2. The Evidence Presented at the Hearing on Appellant s Plea to the Jurisdiction Supports the Trial Court s Decision to Deny the Plea When reviewing a jurisdictional challenge in light of any evidence presented, the Court should review the evidence in a way that mirrors the standard for a summary judgment motion. Miranda, 133 S.W.3d at 228. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at [A]fter the state asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue. Id. at 228. The supreme court held in Lueck that the elements of section (a) can be considered to determine both jurisdiction and liability. Lueck, 290 S.W.3d at 883. This Court reviews the trial court s decision regarding subject matter jurisdiction de novo. Miranda, 133 S.W.3d at 228. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, this Court takes as true all evidence favorable to the nonmovant. Id. The Court should indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id. Both Appellant and Dr. Gentilello presented evidence at the hearing on the plea to the jurisdiction. However, taking as true all evidence favorable to Dr. Gentilello as well as indulging every reasonable inference and resolving any doubts in his favor, the BRIEF OF APPELLEE ON REMAND PAGE 30

44 evidence confirms Dr. Gentilello had a good-faith belief that Dr. Rege had the authority to investigate and correct the violations of law occurring at UTSW. At a minimum, the following evidence conflicts and creates a genuine issue of material fact over whether Dr. Gentilello had a good-faith belief that Dr. Rege was an appropriate law enforcement authority. See Miranda, 133 S.W.3d at This Court should conclude that Dr. Gentilello presented evidence that he in good faith reported a violation of law and in good faith reasonably believed that Dr. Rege was an appropriate law enforcement authority. See Rogers v. City of Fort Worth, 89 S.W.3d 265, (Tex. App. Fort Worth 2002, no pet.) (city marshal appropriate law enforcement authority); Robertson County v. Wymola, 17 S.W.3d 334, 341 & n. 10 (Tex. App. Austin 2000, pet. denied) (administrator in sheriff's department appropriate law enforcement authority); cf. Needham, 82 S.W.3d at 321 ( we hold that there is no evidence to support a finding that Needham had a good faith belief that TxDOT was an appropriate law enforcement authority ) (emphasis added). a. The Billing Compliance Office and the Billing Compliance Plan Appellant dismisses the Plan because it does not authorize Dr. Rege or anyone else to regulate under or enforce the law alleged to be violated or investigate or prosecute a violation of criminal law. (Appellant s Brief at 25). But Appellant s characterization of the evidence is belied by its plain language providing for protections of the Whistleblower Act for reports by physicians of violations exactly the circumstances arising here. BRIEF OF APPELLEE ON REMAND PAGE 31

45 Appellant created a Billing Compliance Plan to ensure its affairs were conducted in accordance with applicable law and regulations. (RR Ex. 10 ( BCP ) at 1). However, in addition to the Billing Compliance Plan, Appellant also created a separate billing compliance program. Id. The billing compliance program created the Billing Compliance Office, the Billing Compliance Advisory Committee ( Compliance Committee ), and a Billing Compliance Officer ( Compliance Officer ), and the Clinical Department Chair. Id. at 1, 6. The Compliance Committee is responsible for creating a process for faculty and employees, like Dr. Gentilello, to report instances of possible violations of law for failure to comply with Medicare and Medicaid rules and regulations, and the Committee is required to make sure such reports are fully and independently reviewed. BCP at 2. A full and independent review is not the wording of an internal investigation. The word independent necessarily implies that the investigation will not be an internal investigation at the direction of Appellant. Such investigations shall be conducted promptly, and the Compliance Committee will make a recommendation of a corrective action to take. Id. at 11. The Compliance Officer is responsible for notifying several components of Appellant s organization of the results of the independent investigation and the corrective actions to be taken, including the affected employees or physicians, the Chair and Representative from each affected UTSW Department, the Compliance and Ethics Committee of the MSRDP, and the Institutional Compliance Committee. Id. The corrective actions available to the Compliance Committee and Compliance Officer BRIEF OF APPELLEE ON REMAND PAGE 32

46 including recommending refunds of improperly billed amounts and conducting additional reviews and investigations into the violations of law. Id. at The Department Chair has the responsibility for ensuring that the goals of billing compliance are met. Id. at 6. Further, the billing compliance program is not intended to set forth all of the policies, substantive programs and practices of UT Southwestern that are designed to achieve compliance because Appellant already maintains various compliance practices, and those practices continue to be a part of its overall legal compliance efforts. Id. at 2. The Billing Compliance Plan indicates that Appellant s internal compliance policies and procedures are already maintained outside of the Billing Compliance Plan. Most remarkably, and wholly ignored by Appellant, communications concerning questions and concerns regarding billing compliance are expressly encouraged in the Billing Compliance Plan. Id. at 10. So much so, in fact, that [e]mployees who report, in good faith, possible compliance problems shall be protected from retaliation or harassment, as established by law. Id. (emphasis added). That the language expressly establishes employees who report such violations of law are protected as established by law is telling that Appellant acknowledges the Compliance Committee and Compliance Officer are appropriate law enforcement authorities pursuant to the established law under section (a). The Billing Compliance Plan and the separate Billing Compliance Program support a physician s good-faith belief that the Department Chair is an appropriate law enforcement authority. The Compliance Committee conducts independent investigations of alleged violations, at times with the assistance of an external auditor, and can BRIEF OF APPELLEE ON REMAND PAGE 33

47 recommend corrective actions which resemble those set forth under federal law. These independent investigations may arise from complaints reported in each department. See BCP at 6. Further, the Billing Compliance Plan expressly states that a physician who reports such violations will be subjected to the protections of the Texas Whistleblower Act. b. The Testimony Presented in the Hearing on Appellant s Plea to the Jurisdiction Also Supports a Denial of the Plea (1) Dr. Gentilello s Testimony That He In Good Faith Reasonably Believed That Dr. Rege Was An Appropriate Law Enforcement Authority Specifically, concerning his knowledge of the Medicare and Medicaid programs, Dr. Gentilello testified that CMS (i.e., the Center for Medicaid & Medicare Services) currently regulate[s] the rules for which medical services are provided to people covered by those programs and that he knows CMS is in charge. (1 RR 29-30). Again, Appellant s questioning of Dr. Gentilello focused on the portions of the Act applying only to regulating or enforcing the law alleged to be violated in the report. Dr. Gentilello testified he does not know who actually enforces the Medicaid or Medicare rules (1 RR 30), but he imagines it is CMS, as well as various other people including the Attorney General. (1 RR 30). He would think that the state Attorney General s Office is a place a report could be made, and CMS is a regulatory and enforcement agency to which he could report. (1 RR 30). Further, Dr. Gentilello testified that Dr. Rege does not write rules and regulations under the Medicare and Medicaid statute. (1 RR 30) When asked if a violation is BRIEF OF APPELLEE ON REMAND PAGE 34

48 reported to Dr. Rege, what penalties under the Medicaid and Medicare statutes and regulations he can hand down, Dr. Gentilello explained: A. Dr. Rege can immediately call the operating room, stop these procedures with one phone call from his cell phone and get his billing compliance people who work for him to make sure the illegal activities cease, and he can do it within the same day that he s notified of it. And then he can appropriately handle the matter with the counsel for UT Southwestern Medical Center. This all goes beyond me. My job is a reporting function, and I report it to the person who every surgeon in this country would report unethical, illegal or improper activities, the Surgery Department Chairman. (1 RR 31-32). Dr. Gentilello further explained that Dr. Rege immediately could impose on a doctor or staff member who violated Medicare or Medicaid laws or regulations all of the penalties that the Attorney General s Office and that CMS has at their command and that he could [a]bsolutely refer the matter to either office. (1 RR 32-33). When asked what penalties Dr. Rege, himself, could enforce without referring the matter to an outside entity, Dr. Gentilello responded: (1 RR 33). A. He could immediately suspend any surgeon who he felt was billing improper procedures if he felt that, indeed, those procedures should be followed by his department.... Dr. Gentilello further testified he is aware of some newspaper reports about Medicare/Medicaid fraud investigations at other universities, such as the University of Washington where fines were imposed and the Department Chairman was convicted of obstruction of justice (a felony offense) for refusing to cooperate with the investigation and threatening his department members and instructing them not to cooperate with the investigation. (1 RR 34-35). That matter involved a federal investigation. (1 RR 35). BRIEF OF APPELLEE ON REMAND PAGE 35

49 When asked if he believes that Dr. Rege has the ability to put someone in jail, Dr. Gentilello testified: A. I believe that Dr. Rege has the ability to put someone in jail, but not by his own authority but by the power he exercises as Department Chairman, by taking the *** By taking the complaints that are reported according to the chain of command as established in the UT Southwestern s own instructions to its employees, he does, in that manner, by exercising his role appropriately, have the right to call down the full force of the law if he, in fact, was committed to enforcing it. (1 RR 35-36). He assumes Dr. Rege could refer the matter to whoever is in charge of enforcing the law. (1 RR 36). More specifically, Dr. Gentilello testified: A. I believe that Dr. Rege, by exercising his authority as Department Chair, could bring down the CMS laws to bear upon the University or stop further noncompliance from occurring or do anything he wants by exercising the authority invested in him as Surgical Department Chair. *** A.... he [i.e., Dr. Rege] has the power and authority to report the matters and also to stop them immediately. (1 RR 36-37). Further, concerning UT Southwestern s Billing Compliance Plan, dated February 1, 2002, Dr. Gentilello agreed that the Plan states that the Clinical Department Chair shall have the responsibility for ensuring that the goals of billing compliance are met; that Dr. Rege was the Clinical Department Chair of his department; and that the Plan states that once the Department Chair notifies the billing compliance office, investigation shall be conducted promptly and the information shall be presented to the committee for a determination. (1 RR 38 & P. Ex. 10 at 6). BRIEF OF APPELLEE ON REMAND PAGE 36

50 Finally, Dr. Gentilello testified: Q. Dr. Gentilello, when you reported what you believed to be an illegal act on the part of UT Southwestern to Dr. Rege, did you reasonably believe that that was the appropriate authority to whom you should report it? A. Absolutely. Q. And did you reasonably believe that Dr. Rege was the appropriate party to report so the enforcement could entail? A. Exactly. (1 RR 38-39) (emphasis added). (2) Dr. Gentilello s Testimony That He In Good Faith Reasonably Believed That Dr. Rege Was An Appropriate Law Enforcement Authority is Supported by Testimony of Dr. Raminder Nirula and Dr. Shahid Shafi Dr. Gentilello s testimony that he reasonably believed that Dr. Rege was the appropriate law enforcement authority to report the illegal activity is supported by the testimony of two other physicians in the surgery department at UT Southwestern. First, Dr. Raminder Nirula, Assistant Professor and Chief of Emergency General Surgery at UT Southwestern, testified that it was reasonable for Dr. Gentilello to believe that Dr. Rege was the appropriate authority to whom to report wrong billing practices in the Department of Surgery. (1 RR 65-66). Indeed, Dr. Nirula testified [t]hat is exactly what [he] would have done. (1 RR 66). Second, Dr. Shahid Shafi, Assistant Professor and Chief of Trauma at UT Southwestern, also testified that it was reasonable for Dr. Gentilello to believe that Dr. Rege was the appropriate authority to whom to report what he thought were illegal billing BRIEF OF APPELLEE ON REMAND PAGE 37

51 practices regarding Medicaid and Medicare bills. (1 RR 71-72). Like Dr. Nirula, Dr. Shafi testified [t]hat s exactly what [he] would have done. (1 RR 72). c. Evidence Supports Dr. Gentilello s Good-Faith, Reasonable Belief that He Reported a Violation of Law to an Appropriate Law Enforcement Authority Taking all evidence in favor of Dr. Gentilello under the standards for review, this Court should conclude that the trial court appropriately denied Appellant s plea to the jurisdiction. First, Appellant s argument that a supervisor is almost never an appropriate law enforcement authority (arguing that perhaps a police officer reporting a violation of criminal law to his supervisor would be appropriate) was not the holding of Lueck (or Needham). (See Appellant s Brief at 25). Indeed, at least one Texas court has held that a supervisor was an appropriate law enforcement authority under the circumstances. See City of Houston v. Levingston, 221 S.W.3d 204, 224 (Tex. App. Houston 2006, no pet.) (holding that state employee s report of violations of law to his supervisor was appropriate because the supervisor was certainly in the best position to receive such reports on behalf of the employer). Further, here, the evidence shows Dr. Gentilello s good-faith, reasonable belief that Department Chair, Dr. Rege, was an appropriate law enforcement authority. Appellant is subject to certain Medicare and Medicaid rules and regulations, and to ensure Appellant followed those rules, it implemented the billing compliance program, including designating the billing compliance officer, appointing a billing compliance advisory committee, and establishing a billing compliance office. The plan required the committee to undertake a process for faculty to report non-compliance and for such BRIEF OF APPELLEE ON REMAND PAGE 38

52 reports to be fully and independently reviewed. It also required the committee to formulate a corrective plan to address instances of non-compliance. The plan specifically stated that the Clinical Department Chair had the responsibility to ensure the goals of billing compliance were met. Dr. Rege, as the Clinical Department Chair, had the authority, responsibility, and ability to ensure Appellant complied with applicable Medicare and Medicaid rules and regulations. Dr. Rege admitted he could investigate the violations alleged by Dr. Gentilello and that he did so. Nothing in the Whistleblower Act limits the appropriate law enforcement authority to one who may enforce by imposing fines or criminal liability under the rules or regulations. Rather, Lueck recognizes Needham s requirement that the report be made to an entity with authority to enforce or investigate the violations of the specific law alleged to be violated. Under the pleadings, and in considering the evidence, Dr. Rege was that entity. This Court should reject Appellant s request to conclude that it established conclusively that Dr. Gentilello did not have a good faith belief that Dr. Rege was an appropriate law enforcement authority. 3. Appellant Has Presented No Evidence Which Would Negate Dr. Gentilello s Contention that He Believed in Good Faith that Dr. Rege Could Investigate Violations of Criminal Law Finally, rather than acknowledge or address section (b)(2), Appellant simply skips over the language providing for the good-faith belief that the authority may investigate violations of criminal law. Appellant s position is based upon a flawed premise, namely that violations of Medicare and Medicaid laws do not constitute appropriate violations of law; Appellant argued at the hearing in the plea to the BRIEF OF APPELLEE ON REMAND PAGE 39

53 jurisdiction you have to have the ability to regulate or enforce the law alleged to have been violated or the authority to investigate or prosecute criminal law violations. And that s not what s being alleged here, they re talking about federal Medicare and Medicaid program questions. (1 RR 21). The majority of Appellant s evidentiary questions in the hearing on the plea to the jurisdiction solely focused on subsection (b)(1). Appellant very plainly stated its position in the law, albeit an incorrect position, as follows: the appropriate law enforcement authority has to have specific authority to enforce or regulate the law that is alleged to have been violated or be a criminal law enforcement authority. (1 RR 10). This is plainly a misstatement of law under the statutory language of section (b). However, billing for non-compliant physician services and representing compliance with the Medicare and Medicaid rules and regulations constitute criminal violations under federal law and Texas law. See 42 U.S.C. 1320a-7b(a), (c); TEX. PENAL CODE 35A.02. Despite this violation of criminal law, Dr. Gentilello s allegation that Dr. Rege had the authority to investigate such violations of law, and Dr. Rege s own testimony that he could investigate the alleged violations and that he did so (RR 50), Appellant did not question the witnesses regarding the investigatory power of Dr. Rege and whether it was a reasonable belief that Dr. Rege could investigate criminal laws. Considering the evidence in the light most favorable to Dr. Gentilello, and with Appellant having presented no evidence to negate Dr. Gentilello s good faith, reasonable belief, this Court should overrule Appellant s issue and should affirm the trial court s denial of the plea to the jurisdiction. BRIEF OF APPELLEE ON REMAND PAGE 40

54 VI. CONCLUSION As Texas courts have recognized, the State of Texas elevates public employees who report legal wrongdoing to a protected status as a matter of fundamental policy. Tex. Dep't of Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 393 (Tex. App. Austin 2005, pet. denied). The State views whistleblowing by a public employee as a courageous act of loyalty to a larger community, and we allow whistleblowing public employees to be made whole through lawsuits against the State. Id. This is because the Act is designed to enhance openness in government and to compel the state's compliance with law by protecting public employees who inform authorities of wrongdoing. Id. at 399. Limiting whistleblowers to exacting standards such as those advanced by Appellant here in interpreting Dr. Gentilello s pleading not only discourages reporting, but sends a message that there will be no openness in government and no need to compel the state's compliance with law. Moreover, the courageous few who stand on principle deserve protection through the policies underlying the Act. Here, Dr. Gentilello s petition sufficiently alleged a violation of the Texas Whistleblower s Act. If not, this Court should remand and allow him to amend his pleading where it does not affirmatively negate a violation of the Act. Further, the proof adduced at the hearing on Appellant s plea to the jurisdiction supported Dr. Gentilello s good-faith, reasonable belief that he reported to an appropriate law enforcement authority. Accordingly, under the supreme court s guiding principles most recently discussed in Lueck, this Court should affirm the trial court s denial of Appellant s plea to the jurisdiction. BRIEF OF APPELLEE ON REMAND PAGE 41

55 WHEREFORE, PREMISES CONSIDERED, Appellee Larry M. Gentilello, M.D., respectfully prays this Court overrule Appellant s issues on appeal, and affirm in all aspects the trial court s July 3, 2007 Order denying Appellant s Plea to the Jurisdiction. Alternatively, Appellee requests this Court reverse and remand this issue to the trial court to allow Dr. Gentilello to amend his pleading to allege jurisdictional facts. Appellee prays for such other and further relieve in favor of Appellee, whether general or special, at law and in equity, as this Court deems just. BRIEF OF APPELLEE ON REMAND PAGE 42

56 Respectfully submitted, By: R. BRENT COOPER State Bar No CYNTHIA SHEA GOOSEN State Bar No DIANA L. FAUST State Bar No COOPER & SCULLY, P.C. 900 Jackson Street, Suite 100 Dallas, Texas Telephone: (214) Facsimile: (214) CHARLA G. ALDOUS State Bar No ALDOUS LAW FIRM 2311 Cedar Springs Road, Suite 200 Dallas, Texas Telephone: (214) Facsimile: (214) JEFFREY H. RASANSKY State Bar No RASANSKY LAW FIRM 2525 McKinnon Street, Suite 625 Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEYS FOR APPELLEE LARRY M. GENTILELLO, M.D. BRIEF OF APPELLEE ON REMAND PAGE 43

57 CERTIFICATE OF SERVICE The undersigned certifies that on the day of April, 2010, a true and correct copy of the foregoing Brief of Appellee on Remand was served on counsel of record as indicted below. Mr. Michael W. Youtt Mr. Jeremiah Anderson Mr. William R. Burns King & Spalding, LLP 1100 Louisiana, Suite 4000 Houston, Texas Counsel for Appellant VIA CMRRR DIANA L. FAUST BRIEF OF APPELLEE ON REMAND PAGE 44

58 ORAL ARGUMENT REQUESTED NO CV IN THE COURT OF APPEALS FIFTH DISTRICT AT DALLAS, TEXAS THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Appellant, v. LARRY M. GENTILELLO, M.D. Appellee. On Appeal from the 162 nd District Court Of Dallas County, Texas Cause No (Hon. Mary Murphy) APPENDIX TO BRIEF OF APPELLEE ON REMAND In compliance with rule 38.1(j) of the Texas Rules of Appellate Procedure, Appellee Larry M. Gentilello, M.D. submits this Appendix to his Brief of Appellee on Remand containing the following items: Tab A: Tab B: Opinion Fifth District Court of Appeals; available on LEXIS, The University of Texas Southwestern Medical Center at Dallas v. Gentilello, 260 S.W.3d 221, 2008 Tex. App. LEXIS (Tex. App. Dallas 2008) Judgment and Opinion Supreme Court of Texas, available on LEXIS, The University of Texas Southwestern Medical Center at Dallas v. Gentilello, 300 S.W.3d 753 (Tex. 2009) TabC: Plaintiff s Original Petition (CR 6-17) BRIEF OF APPELLEE ON REMAND PAGE 45

59 Tab D: Plaintiff s Exhibit 405, Reporter s Record, July 3, 2007 hearing on Defendant s Plea to the Jurisdiction in Larry M. Gentilello, M.D., Plaintiff v. The University of Texas Southwestern Health Systems a/k/a UT Southwestern Health Systems, and the University of Texas Southwestern Medical Center at Dallas, Defendants, in the 14 th District Court, Dallas County, Texas, Cause No D/ BRIEF OF APPELLEE ON REMAND PAGE 46

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