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U.S. Anesthesia Partners of Texas, P.A. v. Mahana

Court of Appeals of Texas, Fifth District, Dallas

August 27, 2019

U.S. ANESTHESIA PARTNERS OF TEXAS, P.A., Appellant
v.
WHITNEY KELLEY MAHANA, Appellee

          On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-08272

         Before the Court En Banc

          OPINION DISSENTING FROM DENIAL OF EN BANC CONSIDERATION

          BILL WHITEHILL JUSTICE.

         Imagine that you show up for surgery requiring general anesthesia and as they are wheeling you into the operating room they tell you that the person responsible for administering the drugs that put you to sleep-a person in whose hands your life rests-is a drug addict who that day failed a test for illegal drugs. [1] Would any ordinary person in that situation have some potential concern for his or her own health and safety? Would communications among that hospital's personnel discussing that anesthetist's (alleged) drug habits and failed drug test be communications at least tangentially related to public health and safety or community well-being?

         The panel majority suggests that ordinary people would not have some concern for health and safety or community well-being simply because a person who puts people to sleep for a living is a drug addict who recently failed a drug test.

         I requested en banc consideration of this case because the majority opinion conflicts with our prior cases, and a majority of the Court voted to deny en banc consideration. I respectfully dissent from that decision for the following reasons.

         I. Issue Presented

         The issue is straightforward. Nurse anesthetist Mahana sued her former employer for intentional infliction of emotional distress. She alleged that (i) her supervisor sent text messages to her co-workers stating that she was being removed from her duties because she had tested positive for opiates and other controlled substances and (ii) her supervisor and other employees were spreading rumors that she was a drug abuser and addict. The question presented under the TCPA's first step is whether these statements relate, even tangentially, to a matter of public concern such as public health and safety or community well-being.[2] See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (per curiam) (TCPA does not require more than a "tangential relationship" to a "matter of public concern").

         The panel opinion holds that the subject matter of those statements doesn't at least tangentially relate to health, safety, or community well-being, that is, a matter of public concern, and therefore the TCPA does not apply in this case. Because the majority opinion is incorrect and conflicts with our controlling precedent, I dissent from the Court's denial of en banc consideration.

         II. Analysis

         A. Contrary to the panel opinion, the speech at issue sufficiently implicates (i) health and safety and (ii) community well-being.

         Mahana is a nurse anesthetist. As this passage from her live pleading shows, the communications at issue are that she is a drug addict who tested positive for illegal drugs one day when she arrived for work:

Within a short time after the Plaintiff [reported for work and] submitted to the drug testing by the Defendant, supervisors and other persons known and unknown to the Plaintiff at this time intentionally and with malicious intent began texting that the Plaintiff had tested positive for several illegal drugs and controlled substances and was being fired. The Plaintiff was later shown texts from agents and supervisors of the Defendant alleging she had tested positive for numerous illegal or controlled substances when in fact the Plaintiff had tested negative. The said text also stated or implied that the Plaintiff was a "drug addict" and was being terminated for illegal activity.

(Emphasis added.) Yet the panel professes that they would not be concerned for their (or the public's) health or safety if they (or the public) appeared for surgery that day and were given that information about the person ...


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