CAUSE NO. UJ,' U·_( (;1 !..' .:.
LARRY M. GENTILELLO, M.D.,
THE UNIVERSITY OF TEXAS
SYSTEMS a/kJa UT SOUTHWESTERN
HEALTH SYSTEMS and THE
UNIVERSITY OF TEXAS
CENTER AT DALLAS
20e7 JI p, ,
IN THE Coff1t13Ofs
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DALLAS COUNF-Y,. T EXutyS
PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND TEMPORARY INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Larry M. Gentilello, M.D., by and through his attorney of record
Charla G. Aldous, who files this Original Petition against The University of Texas
Southwestern Health Systems alkJa UT Southwestern Health Systems and The University
of Texas Southwestern Medical Center at Dallas for retaliating against him in violation of
Chapter 554 of the Texas Government Code, commonly known as the Texas
Whistleblower Act, and would respectfully show the onto the Court the following:
PLAINTIFF'S ORIGINAL PETITION
Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190.3 and affirmatively pleads that he seeks monetary relief aggregating more
Plaintiff, Larry M. Gentilello, M.D., is an individual residing in Dallas County,
Texas. At all times relevant to this action, Plaintiff was employed by The University of
Texas Southwestern Health Systems a/kIa UT Southwestern Health Systems and The
University of Texas Southwestern Medical Center at Dallas (hereinafter jointly referred
to as "Defendants"). The University of Texas Southwestern Health Systems a/kIa UT
Southwestern Health Systems is a Texas corporation located at 6263 Harry Hines
Boulevard, Dallas, Texas, 75235, whose registered office is 8303 Elmbrook Drive,
Dallas, Texas, 75247-4011 and may be served with process by serving its registered
agent for service of process, Willis C. Maddrey, M.D. The University of Texas
Southwestern Medical Center at Dallas is a Texas corporation located at 5253 Harry
Hines Boulevard, Dallas, Texas, 75235, whose registered office is 8303 Elmbrook Drive,
Dallas, Texas, 75247-4011 and may be served with process by serving its registered
agent for service of process, Willis C. Maddrey, M.D.
Plaintiff alleges a claim brought under the Texas Whistleblower Act, Texas
Government Code chapter 554. The Court has jurisdiction over this claim under the
Whistleblower Act due to the Texas Legislature's having waived Defendants' sovereign
PLAINTIFF'S ORIGINAL PETITION 2
immunity for claims brought by a public employee against a governmental entity for
retaliatory personnel actions in violation of Texas Government Code section 554.002.
TEX. GOV'T CODE § 554.0035. This suit, as set out more fully below, seeks damages
from Defendants for adverse personnel actions that were the result of Plaintiffs report of
Venue is proper in Dallas County under Texas Government Code section
554.007(a) because this suit is brought by an employee of the State of Texas, and this is
the county in which the cause of action arose.
PARKLAND PATIENTS TREATED BY UNSUPERVISED RESIDENTS
Plaintiff had been employed by Defendants, entities of the State of Texas, since
2003 in the position of Chair of the Division of Bum, Trauma and Critical Care. Plaintiff
was, and is, a tenured Professor of Surgery at The University of Texas Southwestern
Medical School ("UT Southwestern"), and occupied the Distinguished C. James Carrico.
M.D. Chair in Trauma. The position that Plaintiff occupied was the result of a long and
distinguished career in the field of trauma medicine. Plaintiff has authored numerous
articles in this field and has devised procedures used by trauma surgeons to save the lives
of thousands of individuals across the country. Numerous articles have been written
about Plaintiff and the success he has obtained. Plaintiff is recognized by his peers in the
medical community as one of the leading trauma surgeons in the United States, and
indeed, the world.
PLAINTIFF'S ORIGINAL PETITION
While servmg in his capacity as Chair of the Division of Bum, Trauma and
Critical Care at UT Southwestern, Plaintiff became aware of certain practices taking
place at UT Southwestern regarding inadequate patient care, improper surgical resident
supervision and failure to follow proper operating room and patient treatment protocol,
all of which ran contrary to proper Medicare and Medicaid requirements and procedures.
Plaintiff became aware that the trauma residents were treating patients and
performing surgical procedures without the supervision of any attending trauma
surgeons. The purpose of the residency program is for the residents to receive training
and experience in the area of trauma surgery by being able to observe experienced
surgeons and also to be guided by these attending physicians so that mistakes will not be
made and the health and safety of the patients would not suffer. Plaintiff observed that
the patients at Parkland were being treated by residents with no attending physicians
present and were undergoing surgical procedures with no attending physicians in the
operating room during critical phases of surgery. The patients at Parkland typically
consist of indigents and are primarily minorities. On the other hand, when patients are
being treated at Zale Lipshy, attending physicians are present during the time that the
patients are treated and during the time that surgical procedures are performed. Of course,
the patients at Zale Lipshy are not indigent.
PLAINTIFF REPORTS ILLEGAL ACTIVITY TO HIS SUPERVISOR
The lack of supervision of the trauma surgeon residents' care of Parkland patients
and the adverse medical results that were being experienced was naturally a concern to
Plaintiff. The person at UT Southwestern who set the policies regarding the presence of
attending physicians during surgery and who had the power to investigate these illegal
PLAINTIFF'S ORIGINAL PETITION 4
activities and bring about an end to them was Robert V. Rege, M.D. ("Rege"). Plaintiff
raised concerns regarding these illegal practices concerns with Rege. Rege did not
disagree with Plaintiffs findings nor the conclusions reached by Plaintiff but expressed
the opinion that Plaintiffs faculty "rounded too much," and that the presence of attending
physicians in the surgical suites caused the residents to become "upset." Plaintiff, in
good faith, reasonably believed that these practices violated Medicare and Medicaid
rules, regulations, statutes and ordinances. Plaintiff further believed that the practices
were having an adverse effect upon the indigent patients receiving treatment at Parkland
Hospital. When Plaintiff informed Rege that he would like to address these matters with
the Dean of the Medical School, Rege informed him that he would be aware of any
meetings Plaintiff had with the Dean.
RETALIATION BY REGE AGAINST PLAINTIFF
On March 5, 2007, Plaintiff was delivered a letter from Rege in which it was
explained that Rege was stripping Plaintiff of the position of Chair of Division of Burn,
Trauma and Critical Care as well as withdrawing Plaintiff from the position of the
Distinguished C. James Carrico, M.D. Chair in Trauma at UT Southwestern. This
adverse personnel action was taken in retaliation for Plaintiffs good faith report to the
person the Plaintiff in good faith believed could investigate and address the allegations of
activities violating Medicare and Medicaid patient care and supervisory procedures and
requirements. This demotion and stripping of title was effective as of March 5, 2007.
PLAINTIFF'S ORIGINAL PETITION 5
Count 1 - Whistleblower Claim
1. Plaintiff hereby re-alleges and incorporates by reference paragraphs I through V.
in their entirety.
2. Plaintiff was employed by Defendants, entities of the State of Texas.
3. Plaintiff became aware of and had a good faith belief that illegal patient
observation and supervision practices in violation of state and federal Medicaid
and Medicare regulations were taking place at UT Southwestern.
4. Plaintiff, believing in good faith that Robert V. Rege, M.D. had the authority to
investigate and correct such illegal practices, notified Rege of these activities.
5. Plaintiffs reporting of these illegal practices resulted in Defendants taking the
adverse personnel action against Plaintiff of removing Plaintiff from the position
of Chair of Division of Bum, Trauma and Critical Care, as well as removing him
from the Distinguished C. James Carrico, M.D. Chair of Trauma at UT
Southwestern. These adverse personnel actions were taken against Plaintiff in
violation of Texas Government Code section 554.002.
6. Plaintiff contends that his reporting of these illegal patient care and supervisory
activities to Rege was a substantial and/or motivating factor in Defendants'
unlawful adverse personnel action taken against him, that such acts were in
retaliation for Plaintiffs report, and would not have occurred when they did but
for the report.
PLAINTIFF'S ORIGINAL PETITION 6
Defendants' unlawful adverse personnel action resulted in damages suffered in
the form of past lost wages, past lost benefits, future lost earnings, future lost earning
capacity, emotional pain, suffering, mental anguish, and loss of enjoyment of life.
More importantly, Defendants' actions have caused irreparable harm to
Plaintiffs reputation and career. The demotions and loss of chairs will make it difficult
for Plaintiff to obtain future employment at the same level and will make it difficult for
Plaintiff to obtain grants and funding for research so critical to the field of trauma
medicine. Moreover, the harm to Plaintiffs reputation is such that monetary damages
will be inadequate to compensate him for the losses he will sustain.
Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court.
Plaintiff is entitled to recover reasonable and necessary attorneys' fees under
Texas Government Code section 554.003(a)(4).
Plaintiff seeks reinstatement to the position of Chair of Division of Bum, Trauma
and Critical Care at UT Southwestern, as well as reinstatement to the Distinguished C.
James Carrico, M.D. Chair of Trauma at UT Southwestern.
PLAINTIFF'S ORIGINAL PETITION 7
In addition to the above-stated relief, Plaintiff seeks injunctive relief authorized
by Texas Government Code section 554.003 (a).
Request for Temporary Restraining Order
A. Plaintiff asks the Court to issue a temporary restraining order reinstating him to
the position of Chair of Division of Bum, Trauma and Critical Care at UT
Southwestern, as well as to the Distinguished C. James Carrico, M.D. Chair of
Trauma at UT Southwestern, and additionally, to prevent Defendants from
continuing the illegal and improper patient care and supervisory activities at UT
Southwestern which contravene Medicare and Medicaid requirements and
B. It is probable that Plaintiff will recover from Defendants after a trial on the merits
as the adverse personnel action taken by Defendants was in response to Plaintiffs
reporting illegal and improper patient care and supervisory activities.
C. If Plaintiffs application is not granted, harm is imminent, as not only will injury
to Plaintiffs career as a medical instructor and physician and reputation in the
medical community continue to occur, patients under care at UT Southwestern
will continue to needlessly suffer due to the continuation of illegal and improper
patient care and supervisory activities by UT Southwestern staff.
D. The harm which will result if the temporary restraining order is not issued is
irreparable because such specific damage to Plaintiffs medical instructor and
PLAINTIFF'S ORIGINAL PETITION 8
physician reputation and career, and especially the undue and pointless suffering
of patients under care at UT Southwestern cannot adequately be ascertained or
measured by any certain pecuniary standard.
E. Plaintiff has no adequate remedy at law for such specific damage to his medical
instructor and physician reputation and career, or the undue and pointless
suffering of patients under care at UT Southwestern as a result of illegal and
improper patient care and supervisory activities, as such damages cannot
adequately be ascertained or measured by any certain pecuniary standard.
F. Plaintiff is willing to post bond.
Request for Temporary Injunction
G. Plaintiff asks the Court to set his application for temporary injunction for a
hearing and, after the hearing, issue a temporary injunction against Defendants.
H. Plaintiff has joined all indispensable parties under Texas Rule of Civil Procedure
Request for Permanent Injunction
I. Plaintiff asks the Court to set his request for a permanent injunction for a full trial
on the merits and, after the trial, issue a permanent injunction against Defendants.
Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
PLAINTIFF'S ORIGINAL PETITION 9
For these reasons, Plaintiff asks that the Court issue citation for Defendants to
appear and answer, and that Plaintiff be awarded a judgment against Defendants for:
a. Actual damages.
c. Temporary restraining order.
d. Temporary injunction.
e. Permanent injunction.
f. Applicable prejudgment and postjudgment interest.
g. Court costs.
h. Attorneys' fees.
1. All other relief to which Plaintiff is entitled.
~ ~ -
Charla G. A l d o u ~
State Bar No. 20545235
ALDOUS LAW FIRM
2305 Cedar Springs Road
Dallas, Texas 75201
(214) 526-5595 telephone
(214) 526-5525 facsimile
ATTORNEY FOR PLAINTIFF
LARRY M. GENTILELLO, M.D.
PLAINTIFF'S ORIGINAL PETITION 10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
forwarded to counsel for Defendants via certified mail, return receipt requested, on this
14th day of June, 2007, as follows:
5323 Harry Hines Blvd.
Dallas, TX 75390-9008
PLAINTIFF'S ORIGINAL PETITION 11
STATE OF TEXAS §
DALLAS COUNTY §
Before me, the undersigned notary, on this day personally appeared Larry M.
Gentilello, M.D., the affiant, a person whose identity is known to me. After I
administered an oath to affiant, affiant testified:
"My name is Larry M. Gentilello, M.D. I am capable of making this verification. I
read the Original Petition; the facts set forth in the Original Petition are within my
personal knowledge and are true and correct."
Further affiant sayeth not.
SWORN TO AND SUBSCRIBED BEFORE ME on this the I l . / ~ day of June
_ f , , ~
My Commission expires:
ARRY ENTILELLO, M.D.
MARY f<' CREEKBAUM
STATE OF TEXAS
My Comm. Exp. 01-12-2010
PLAINTIFF'S ORlGINAL PETITION