2023 Texas Statutes › Occupations Code › Title 3 - Health Professions › Subtitle E - Regulation of Nursing › Chapter 301 - Nurses › Subchapter I. Reporting Violations and Patient Care Concerns › Section 301.413. Retaliatory Action

Sec. 301.413.  RETALIATORY ACTION.  (a)  A person may file a counterclaim in a pending action or prove a cause of action in a subsequent suit to recover defense costs, including reasonable attorney's fees and actual and punitive damages, if:
(1)  the person is named as a defendant in a civil action or subjected to other retaliatory action as a result of:
(A)  filing a report required or authorized, or reasonably believed to be required or authorized, under this subchapter as a result of refusing to engage in conduct as authorized by Section 301.352;
(B)  requesting in good faith a nursing peer review committee determination under Section 303.005; or
(C)  providing advice to a person regarding:
(i)  filing a report required or authorized, or reasonably believed to be required or authorized, under this subchapter as a result of refusing to engage in conduct as authorized by Section 301.352; or
(ii)  requesting in good faith a nursing peer review committee determination under Section 303.005; and
(2)  the suit or retaliatory action is determined to be frivolous, unreasonable, or taken in bad faith.
(b)  A person may not suspend, terminate, or otherwise discipline, discriminate against, or retaliate against a person who:
(1)  reports in good faith under this subchapter;
(2)  requests, in good faith, a nursing peer review committee determination under Section 303.005;
(3)  refuses to engage in conduct as authorized by Section 301.352; or
(4)  advises a nurse of the nurse's right to:
(A)  report under this subchapter;
(B)  request a nursing peer review committee determination under Section 303.005; or
(C)  refuse to engage in conduct as authorized by Section 301.352.
(b-1)  A person suspected of violating Subsection (b) may be reported to the appropriate licensing agency and, notwithstanding any other provision, that agency may impose an administrative penalty not to exceed $25,000 against the person if the agency finds a violation of Subsection (b).  An administrative penalty imposed under this subsection is in addition to other penalties the agency is authorized to impose and is subject to the procedural requirements applicable to the appropriate licensing agency.
(c)  A person who reports under this subchapter, refuses to engage in conduct as authorized by Section 301.352, or requests a nursing peer review committee determination under Section 303.005, or a person who advises a nurse of the nurse's right to report under this subchapter, refuse to engage in conduct as authorized by Section 301.352, or request a nursing peer review committee determination under Section 303.005, has a cause of action against a person who violates Subsection (b), and may recover:
(1)  the greater of:
(A)  actual damages, including damages for mental anguish even if no other injury is shown; or
(B)  $5,000;
(2)  exemplary damages;
(3)  court costs; and
(4)  reasonable attorney's fees.
(d)  In addition to the amount recovered under Subsection (c), a person whose employment is suspended or terminated in violation of this section is entitled to:
(1)  reinstatement in the employee's former position or severance pay in an amount equal to three months of the employee's most recent salary;  and
(2)  compensation for wages lost during the period of suspension or termination.
(e)  A person who brings an action under this section has the burden of proof.  It is a rebuttable presumption that the person was suspended, terminated, or otherwise disciplined, discriminated against, or retaliated against for reporting under this subchapter, for refusing to engage in conduct as authorized by Section 301.352, for requesting a peer review committee determination under Section 303.005, or for providing advice to a person regarding reporting under this subchapter, refusing to engage in conduct as authorized by Section 301.352, or requesting a peer review committee determination under Section 303.005 if:
(1)  the person was suspended, terminated, or otherwise disciplined, discriminated against, or retaliated against within 60 days after the date the report, refusal, or request was made or the advice was given; and
(2)  the board or a court determines that:
(A)  the report that is the subject of the cause of action was:
(i)  authorized or required under Section 301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408, 301.409, or 301.410; and
(ii)  made in good faith;
(B)  the request for a peer review committee determination that is the subject of the cause of action was:
(i)  authorized under Section 303.005; and
(ii)  made in good faith;
(C)  the refusal to engage in conduct was authorized by Section 301.352; or
(D)  the advice that is the subject of the cause of action was given in good faith.
(f)  An action under this section may be brought in a district court of the county in which:
(1)  the plaintiff resides;
(2)  the plaintiff was employed by the defendant;  or
(3)  the defendant conducts business.
(g)  Subject to Subsection (h), a nurse employed by a hospital operated by or on behalf of a state or local governmental entity who alleges a violation of Subsection (b) may sue the state or local governmental entity for relief under this section, and the sovereign immunity of the state or local governmental entity from suit and from liability is waived for the limited purpose of allowing the nurse to maintain a lawsuit in state court to obtain that relief.  Relief under this section is in addition to any other remedies a nurse may have under state or federal law as a public employee.  In this subsection:
(1)  "Local governmental entity," "public employee," and "state governmental entity" have the meanings assigned by Section 554.001, Government Code.
(2)  "Hospital" has the meaning assigned by Section 241.003, Health and Safety Code, and includes a mental hospital licensed under Chapter 577, Health and Safety Code.
(h)  Relief may be granted in a lawsuit brought under Subsection (g) for an alleged violation of Subsection (b)(1) based on a report made by a nurse under Section 301.4025(b) only if the nurse:
(1)  made the report:
(A)  in writing, which may be provided electronically; or
(B)  verbally, if authorized by the nurse's employer or another entity at which the nurse is authorized to practice;
(2)  made the report to:
(A)  the nurse's supervisor;
(B)  a committee authorized under state or federal law to receive reports under Section 301.4025(b); or
(C)  an individual or committee authorized by the nurse's employer or another entity at which the nurse is authorized to practice; and
(3)  made the report not later than:
(A)  the fifth day after the date the nurse became aware of the situation if the situation involves a single incident; or
(B)  the fifth day after the date the nurse became aware of the most recent occurrence of the situation if the situation involves multiple incidents or a pattern of behavior.
(i)  For purposes of Subsection (h), "supervisor" means an individual who has authority over the responsibilities of the nurse making the report or an individual who is in the nurse's chain of command.
(j)  The following provisions of Chapter 554, Government Code, apply to a lawsuit under Subsection (g):
(1)  the type of relief and the amount of damages available to a public employee under Section 554.003;
(2)  the time during which a public employee must seek relief under Section 554.005; and
(3)  the requirement that a public employee use the grievance or appeal procedures of the state or local governmental entity before suing for relief under Section 554.006.
(k)  A lawsuit under Subsection (g) against a state governmental entity shall be brought in a district court in Travis County or a county in which all or part of the acts or omissions giving rise to the cause of action occurred.
(l)  A lawsuit under Subsection (g) against a local governmental entity shall be brought in a district court in a county in which all or part of the entity is located.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 803 (S.B. 993), Sec. 14, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 742 (S.B. 476), Sec. 3, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 877 (S.B. 192), Sec. 6, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1258 (H.B. 581), Sec. 1, eff. September 1, 2013.