The Texas Citizens Participation Act (TCPA) is designed to protect the constitutional right of persons to speak freely, associate freely, and participate in government without the threat of an unmeritorious lawsuit being filed against them as a result.  More particularly, it protects the rights of persons to speak out on “matters of public concern.”  The TCPA defines what is a “matter of public concern” as including “an issue related to” health or safety.

A divided Dallas Court of Appeals considered how to apply this definition to communications made by a professional medical association in connection with the termination of a nurse employee following a drug test the employer had given the nurse.  In U.S. Anesthesia Partners of Texas, P.A. v. Mahana, No. 05-18-01414-CV (Aug. 27, 2019), Mahana filed suit against her former employer, asserting claims for breach of contract and intentional infliction of emotional distress.  Mahana alleged that her supervisor texted other employees stating that Mahana was being removed because she had tested positive for opiates and other controlled substances.

After Mahana filed suit, U.S. Anesthesia invoked the TCPA and moved to dismiss on the grounds that its communications involved matters of public concern and were therefore subject to the TCPA.  In addressing this threshold question—whether the communications related to a matter of public concern, i.e., health and safety—the majority, authored by Justice Erin Nowell, held that the communications were not related to a matter of health or safety because the communications were not related to the provision of medical services by a health care professional.  The majority reasons that the communications did not address Mahana’s job performance and whether she properly provided medical services to patients.  The majority specifically noted that Mahana alleged that she was never physically or mentally impaired while performing her duties.

Justice David Bridges dissented.  He argued that the communications did related to health and safety.  He pointed out that the drug test had been given to Mahana after pharmacy logs had shown missing drugs.  He further pointed out that the text messages by the health care supervisor stated that Mahana was being terminated because she was a drug addict who was engaged in illegal activity.  Justice Bridges argued that a communication need only “relate to” a matter of public concern, which requires only a tangential relationship.   He would have held that text messages between co-workers that a nurse anesthetist had tested positive for opiates and other controlled substances concerns an issue related to health or safety, such that the TCPA should be applied.

One further opinion was issued in this appeal.  In an unusual move, Justice Bill Whitehill wrote an opinion dissenting from the denial of en banc consideration of the case.  Justice Whitehill wrote to express his concern about the majority’s reasoning, pointing out that Mahana was a nurse anesthetist, who’s employment contract expressly provided that she could be terminated for substance abuse.  He closed by asking what is tangentially related to health and safety if a communication stating that a nurse anesthetist is addicted to illegal drugs isn’t related.

U.S. Anesthesia Partners of Texas, P.A. v. Mahana, No. 05-18-01414-CV (Aug. 27, 2019)