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At a Glance:
Austin v. Healthtrust, Inc. The Hosp. Co
April 14, 1998
967 S.W.2d 400
Published Opinion

Austin v. Healthtrust, Inc. The Hosp. Co

Supreme Court of Texas.

Lynda Gail AUSTIN, Petitioner,


HEALTHTRUST, INC. —THE HOSPITAL COMPANY, Wharton Hospital Corporation d/b/a Gulf Coast Medical Center, and Patrick Lilley, Respondents.

No. 97–0825.


Argued Feb. 3, 1998.


Decided April 14, 1998.

Attorneys & Firms

*400 Ian Scharfman, Houston, for Petitioner.

Layne A. Thompson, Houston, for Respondents.


HANKINSON, Justices, join.

We have been requested in this case to create a judicial exception to the employment-at-will doctrine by recognizing a cause of action for private whistleblowers. Because the Legislature has been so proactive in promulgating statutes that prohibit retaliation against whistleblowers in many areas of the private sector, we decline to recognize a common-law cause of action. Accordingly, we affirm the judgment of the court of appeals.


This case was decided by summary judgment. The parties included in the trial court record only the facts necessary to resolve the legal issue of whether a private whistleblower cause of action exists under the common law. Therefore, our account of the facts is brief, and we set forth only the factual allegations asserted by Austin, against whom summary judgment was rendered.

Lynda Gail Austin worked as an emergency room nurse at Gulf Coast Medical Hospital for approximately fifteen years. In July 1992, she noticed that another emergency room nurse, Clay Adam, appeared to be under the influence of drugs. Austin learned shortly thereafter that Adam had been distributing prescription medication to patients without authorization from a physician. Austin relayed this information to her supervisor, Patrick Lilley. She also submitted a written report to Lilley detailing Adam’s conduct and actions. Lilley instructed Austin to keep the information to herself, and she complied.

Austin alleges that Lilley subjected her to extreme scrutiny after she reported Adam’s conduct. Then, on December 1, 1992, Lilley fired Austin and asked her to leave the premises. Upon learning that Lilley was a family friend of Adam, Austin brought this suit against HealthTrust Inc.—The Hospital Company, the Gulf Coast Medical Foundation d/b/a Gulf Coast Medical Center, and Lilley (hereinafter HealthTrust). Austin alleges *401 that she was discharged in retaliation for reporting Adam’s unlawful, dangerous, and unethical activities.

HealthTrust moved for summary judgment, asserting that Austin failed to state a cognizable claim under Texas law. The trial court granted the motion. The court of appeals affirmed, holding that Texas does not recognize a common-law cause of action for retaliatory discharge of a private employee who reports the illegal activities of others in the workplace. 951 S.W.2d 78. We affirm.


This is not the first time that the Court has been urged to recognize a private whistleblower cause of action. In Id. at 724.

Since Ford v. Landmark Graphics Corp., 875 S.W.2d 33, 34 (Tex.App.—Texarkana 1994, no writ) (refusing to recognize a private whistleblower cause of action).

Austin urges us to embrace a cause of action that is more narrowly tailored than those that were under consideration in Winters, and in the eight years that have followed, the Legislature has enacted a variety of private remedies and has declined to create a cause of action that would have general applicability.

As recently as the 1995 legislative session, an amendment to the Labor Code was proposed that would have created a “Whistleblower Act” for all private employees. Tex. H.B. 622, 74th Leg., R.S. (1995). The proposed bill, like the cause of action Austin proposes here, would have prohibited an employer from terminating an employee “who in good faith reports activities within the workplace that constitute a violation of law or would otherwise have a probable adverse effect on the public.Id. (emphasis added). This version of the bill was rejected in legislative committee. An amended bill was then proposed that deleted protection for reports of activities that would have a “probable adverse effect on the public” in favor of the requirement that the reported activity “constitute a violation of law.” Compare id. with Tex.C.S.H.B. 622, 74th Leg., R.S. (1995). However, the Legislature did not pass the modified bill.

Rather than create a one-size-fits-all whistleblower statute, the Texas Legislature has instead opted to enact statutes that protect specific classes of employees from various types of retaliation. For example, TEX. LOC. GOV’T CODE § 160.006 (preventing county employee from being subject to retaliation for exercising a right or participating in a grievance procedure established under Chapter 160 of the Local Government Code).

Moreover, the Legislature has enacted specific statutes to address the retaliation that Austin alleges she suffered in the present case. Registered nurses, such as Austin, are required by law to report another registered nurse who “has exposed or is likely to expose a patient or other person unnecessarily to a risk of harm” or who “is likely to be impaired by chemical dependency.” Clark v. Texas Home Health, Inc., 971 S.W.2d 435, ––––, 1998 WL 289399 (Tex.1998), which we decide today. Any nurse who files a report pursuant to the statute is protected from retaliation:

A person has a cause of action against an individual, organization, agency, facility, or other person that suspends or terminates the employment of the person or otherwise disciplines or discriminates against the person reporting under this article.

TEX.REV.CIV. STAT. ANN.. art. 4525a, § 11(a) (Vernon Supp.1998).

Although article 4525a was in effect when Austin reported Adam’s conduct to Lilley, Austin has not alleged that she filed a report with the Board of Nurse Examiners or that she was fired for doing so. She has not pursued any cause of action under the statute.

Beyond the protections provided by Section 161.134 of the Health and Safety Code provides a specific cause of action against a hospital-employer who has retaliated against an employee for reporting a violation of the law to a supervisor. While this statute was not in effect at the time Austin was discharged and she cannot avail herself of its provisions, it nevertheless is another factor this Court must consider in determining whether to create a broader common-law cause of action.

Aside from the aforementioned whistleblower statutes, the Legislature has created numerous other restrictions on and exceptions to the employment-at-will doctrine. See, e.g., TEX.REV.CIV. STAT. ANN. art. 4512.7, § 3 (Vernon Supp.1998) (prohibiting discrimination against health care employee for refusing to perform or participate in an abortion).

In enacting statutes that prohibit certain conduct in the employment area, the Legislature has carefully balanced competing interests and policies. This has resulted in statutes not only with diverse protections, but also with widely divergent remedies and varying procedural requirements. For example, some whistleblower statutes allow recovery of exemplary damages while other statutes limit recovery to lost wages. Compare TEX.REV.CIV. STAT. ANN. art. 4495b, § 5.06(q) (Vernon Supp.1998).

Unlike the Legislature, we cannot craft statutes of limitation that vary depending upon the area of employment. Nor can the Court establish an administrative scheme. Were we to create a broad-based whistleblower cause of action, it would in large part eviscerate the specific measures the Legislature has already adopted.

We do not doubt that significant public policy interests are advanced when employers are prohibited from discriminating against employees who report violations of the law. However, the Legislature has enacted specific statutes to redress wrongful termination. While we are not bound by the Legislature’s policy decisions when we consider whether to create a common-law whistleblower action, “the boundaries the Legislature has drawn do inform our decision.” Ford Motor Co. v. Miles, 967 S.W.2d 377, 383 (Tex.1998). Accordingly, rather than recognize a common-law cause of action that would effectively emasculate a number of statutory schemes, we leave to the Legislature the task of crafting remedies for retaliation by employers.

* * * * *

For the foregoing reasons, we affirm the judgment of the court of appeals.

GONZALEZ, J., issued a concurring opinion, in which SPECTOR, J., joins.

GONZALEZ, Justice, concurring.

I concur in the judgment. However, I cannot join the Court’s opinion because its tenor may signal a retreat from the well established policy that recognizes that the employment-at-will doctrine is a judicially created one that this Court is free to amend. Id. at 726 (Doggett, J., concurring).

*404 I agree that the facts of Lynda Gail Austin’s discharge, like in TEX.REV.CIV. STAT. art. 4525a, § 1(a) (Vernon Supp.1998). While the record does not reflect whether Austin reported her suspicions to the Board of Nurse Examiners as required, there is no doubt she would have then had a civil cause of action if she was suspended, terminated, or otherwise disciplined or discriminated against. Id. § 11(a).1 Accordingly, this is not a compelling scenario of injustice that requires us to modify the long-standing employment-at-will doctrine.

However, such a compelling situation may present itself in the future, and when it does, it will be incumbent on this Court to once again, as we did in Sabine Pilot, 687 S.W.2d at 735 (Kilgarlin, J., concurring).



At oral argument, a point of contention was whether the anti-retaliatory provision of the Professional Nurse Reporting statute was in effect when Austin filed her suit. It was, as § 11(c). Act of June 19, 1993, 73 rd Leg., R.S., ch. 840, § 2, 1993 Tex. Gen. Laws 3305.

End of Document