DISSENT and Opinion Filed August 27, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-01414-CV 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



### DISSENTING OPINION Opinion by Justice Bridges “A court may not judicially amend a statute by adding words tha t are not contained in the language of the statute.” Lippincott v. Whisenhunt , 462 S.W.3d 507, 508 (Tex. 2015) (per curiam). Because the majority impermissibly narrows the definition of “m atter of public concern” related to “health or safety,” I respectfully dissent. See T EX
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. § 27.001(7)(A). The majority thoroughly explains the underlying facts of this appeal; therefore, I include only those facts necessary for my analysis. Appellee Whitney Kelley Mahana i s a nurse anesthetist. In 2015 , she signed a written employment contract with appellan t U.S. Anesthesia Partners of Texas, P.A. (USAP). She provided general anesthetic servi ces for all surgical and obste tric medical procedures requested by the medical facility, which included administering anesthesia a s directed by a licensed physician–2– in all surgical and emergency conditions at the medical facilit y in both operative and post-operative situations. On December 21, 2016, the director of nursing for Heritage Surg ical Hospital demanded Mahana take a drug test because of “wastage of drugs” shown on pharmacy logs. Mahana submitted to the drug test. According to Mahana’s amended peti tion, a supervisor “began to text [] other employees that Plaintiff was being removed from her du ties because she had tested positive for opiates and other controlled substances.” Mahana also bega n receiving text messages and telephone calls “that rumor of alleged drug abuse and addiction were being spread by her supervisor . . . and that she was being terminated and had been escorted from the building.” Some texts stated or implied she w as a “drug addict” and was being t erminated for illegal activity. 1 Mahana contends USAP’s communications do not fall under the TCP A’s definition of “matter of public concern” relating to “health or safety” becau se “there were no complaints of incidents of negligence, abuse, e ndangering patients, violation [s] of administrative employee performance standard[s] or violations of rules and regulations. ” Thus, any question of public health and safety is “theoret ical only and not based in fact.” Mahana’s argument centers on what the communications do not say rather than focusing on the content of the communications. See T EX
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. C ODE A NN . § 27.001(1) (defining “communication” to in clude “the making or submitting of a statement or document in any form or medium, including or al, visual, written, audiovisua l, or electronic”). The majority reaches its conclusion by expanding Lippincott

. In Lippincott , the Texas Supreme Court consid ered whether emails alleging th at a nurse anesthetist represented himself as a doctor, endangered patient s for his own financial gain, and sexually harassed employees were communications made in connect ion with a matter of public

1 I recognize there is no evidence of drug use by Mahana in this record.–3– concern. Lippincott , 462 S.W.3d at 509. The court concluded the emails related to whether the nurse anesthetist “properly provi ded medical services to patien ts,” and “the provision of medical services by a health care professional cons titutes a matter of public concern.” Id . at 509–10. The majority distinguishes the text message communications in this case from the email communications in Lippincott because the text messages about Mahana’s alleged drug use “do not address Mahana’s job performance or relate to whether she prope rly provided medical services to patients” and “do not state that she used illegal drugs on the job or that her alleged use impacted her job performance.” Without any further statut ory analysis, the majority concludes the communications are not “related to the provision of medical ser vices by a health care professional” and therefore were not a “matter of public concern.” I agree the communications here and in Lippincott are distinguishable; however, the distinction does not remove the c ommunications from the statuto ry definition of “matter of public concern.” According to the majority’s analysis, communications about someone in the healthcare industry fall under the definition of “matter of public concern ” only if the communications relate to the provision of medical ser vices. The majority concludes c ommunications about Mahana’s alleged drug addiction would be a health or safety concern only if the text messages stated she used drugs while working or her drug use impacted her ability t o perform her duties. This requires too much. Although Lippincott held “the provision of medical services by a healthcare profes sional constitutes a matter of public c oncern,” nothing within the opi nion limits the statutory definition of “matter of public concern” to only those acts. 462 S.W.3d a t 509. More importantly, the TCPA has prescribed a specific defi nition to “matter of public conce rn” requiring only that “an issue relate to health or sa fety” without any fur ther elaboration or qualification. See T EX
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. C ODE A NN . § 27.001(7). The majority ignores the plain-meaning approach dictated by the–4– supreme court and improperly narrows the scope of the TCPA by i nserting the requirement that communications involve more than a “tangential relationship to matters of public concern.” Id

. Mahana was a healthcare professional admittedly in charge of pr oviding general anesthetic services and administering anesthesia. Any use of drugs that c ould impair her ability to perform her duties at the very least invol ves a “tangential relationshi p” to matters of public concern. Any notion that court s should read implicit limitations into th e TCPA definitions has been put to rest by the Texas Supreme Court. See Lippincott , 462 S.W.3d at 509 (plain language of statute imposes no limiting language that communication must be public, therefore we presume legislature intended communicati ons to include both private and public communications); see also ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 900 (Tex. 2017) (applying plain-meaning construction of TCPA definitions ’ literal language even when th is results in vastly expansive application of “exercise of the right of free speech”). “We do not substitute the w ords of a statute in order to give effect to what we believe a statute should say .” Coleman , 512 S.W.3d at 901. All the legislature has required is that USAP’s com munications be “ made in connection with a matter of public concern,” and a “matter of public concern” includes “ an issue related to health or safety.”
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. C ODE A NN . § 27.001(3), (7). Text messages between coworkers indicating a nurse anesthetist tested positive for opiates and other controlled substances concern an “issue related to health or safety.” See, e.g., Coleman , 512 S.W.3d at 901 (statements, although private and among employees, related to “matter of public conce rn”). 2 Accordingly, USAP’s “communications” qualify as an “exercise of the right of free s peech” under the TCPA. 3 Having

2 The record indicates Mahana’s drug test came back negative; ho wever, this is irrelevant to the analysis. Whether a statement is true or false, defamatory or not, has no bearing on whether the statement cons titutes an exercise of the right of free speech. Cruz v. Van Sickle , 452 S.W.3d 503, 515 (Tex. App.—Dallas 2014, pet. denied); see also In re Lipsky , 411 S.W.3d 530, 543 (T ex. App.—Fort Worth 2013, orig. proceed ing).
3 In recent opinions, this Court has determined the TCPA “has it s limits,” and not every communication falls under the statute. See, e.g., Erdner v. Highland Park Emergency Ctr., LLC , No. 05-18-00654-CR, 2019 WL 2211091, at *5 (Tex. App.—Dallas May 22, 2019, no pet.); Dyer v. Medoc Health Servs., LLC , 573 S.W.3d 418, 428 (Tex. App.—D allas 2019, pet. denied); Staff Care, Inc. v. Eskridge Enterps, LLC , No. 05-18- 00732-CV, 2019 WL 2121116, at *5 (Tex. App.—Dallas May 15, 2019 , no pet.) (mem.op.). However, the alleged communications in t hese cases involved business disputes. In Staff Care and Erdner , even though the parties were in the healthcare industry, we c oncluded this alone was not–5– reached this conclusion, I do not address whether the communica tions relate to community wellbeing. The second step in the TCPA analysis required Mahana to establi sh by clear and specific evidence a prima facie case for each essential element of her i ntentional infliction of emotional distress claim. T EX
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. C ODE A NN . § 27.005(c). But because the majority does not reach step two, neither do I. See Erdner , 2019 WL 2211091, at *8 (Whitehill, J., dissenting) (not reaching second step of TCPA analysis when not considered by the majority).

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enough to turn a private communi cation made in connection with a business dispute into a matter of public concern. Erdner , 2019 WL 2211091, at *5; Staff Care, Inc ., 2019 WL 212116, at *6. Here, the alleged communications dir ectly involve a matter of public concern regarding health or safety. Therefore, my applicati on of the statute neither tests the limits of the TCPA nor results in a “potentially absurd re sult that was not contemplated by the Legislature.” Erdner , 2019 WL 2211091 , at *5. /David L. Bridges/ DAVID L. BRIDGES JUSTICE