Sunday, February 7, 2010

Bad Doctor, But Prosecute the Nurse that Reports Him, That Makes Sense in Texas, Right?

In the Sunday New York Times, Kevin Sack wrote about two Texas nurses (pic), one who is about to be prosecuted in state court on charges of reporting what they believed to be bad medical practices of Dr. Rolando G. Arafiles Jr, a physician at the Winkler County Memorial Hospital.  The report is absolutely astonishing because it involves the criminalization of what most of us would hope and pray occurs in our health care system, educated professionals see substandard care and report it to their professional boards.  If an investigation proves that the concerns are misplaced, then we are all reasssured, right?  Not when the local Sheriff is pals with the offended doctor. 

This is from the Times article: 

[I]n what may be an unprecedented prosecution, . . . [Anne] Mitchell is scheduled to stand trial in state court on Monday for 'misuse of official information,' a third-degree felony in Texas.

The prosecutor said he would show that Mrs. Mitchell had a history of making 'inflammatory' statements about Dr. Rolando G. Arafiles Jr. and intended to damage his reputation when she reported him last April to the Texas Medical Board, which licenses and disciplines doctors.  Mrs. Mitchell counters that as an administrative nurse, she had a professional obligation to protect patients from what she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.

Charges against a second nurse, Vickilyn Galle, who helped Mrs. Mitchell write the letter, were dismissed at the prosecutor’s discretion last week.  The case has been infused with the small-town politics of this wind-whipped city of 5,200 in the heart of the Permian Basin, 10 miles from the New Mexico border. The seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite.

When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter. Both sides acknowledge that the case has polarized the community, and the judge has moved the trial to a neighboring county.   The state and national nurses associations have called the prosecution an outrage and raised $40,000 for the defense. Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws.

'To me, this is completely over the top,' said Louis A. Clark, president of the Government Accountability Project, a group that promotes the defense of whistle-blowers. 'It seems really, really unique.'

Until they were fired without explanation on June 1, Mrs. Mitchell and Mrs. Galle had worked a combined 47 years at Winkler County Memorial Hospital here, most recently as its compliance and quality improvement officers. The nurses, who are highly regarded even by the administrator who dismissed them, said the case had stained their reputations and drained their savings. With felony charges pending, neither has been able to find work. They said they could feel heads turn when they walked into local lunch spots like El Joey’s Mexican restaurant.

'It has derailed our careers, and we’re probably not going to be able to get them back on track again,' said Mrs. Galle, 54, a grandmother who is depicted around town as the soft-spoken Thelma to Mrs. Mitchell’s straight-shooting Louise. 'We’re just in disbelief that you could be arrested for doing something you had been told your whole career was an obligation.'

It was not long after the public hospital hired Dr. Arafiles in 2008 that the nurses said they began to worry. They sounded internal alarms but felt they were not being heeded by administrators.  Frustrated and fearing for patients, they directed the medical board to six cases 'of concern' that were identified by file numbers but not by patient names. The letter also mentioned that Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side.  Mrs. Mitchell typed the letter and mailed it with a separate complaint signed by a third nurse, who wrote that she had resigned because of similar concerns about Dr. Arafiles. That nurse was not charged.

To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a 'nongovernmental purpose' with intent to harm Dr. Arafiles.  Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have 'a significant chilling effect' on the reporting of malpractice.  The nurses’ lawyers, John H. Cook IV and Brian Carney, have filed a civil lawsuit in federal court charging the county, hospital, sheriff, doctor and prosecutor with vindictive prosecution and denial of the nurses’ First Amendment rights.  Nonetheless, the sheriff, Robert L. Roberts Jr., and the prosecutor, Scott M. Tidwell, express confidence in their case.
This is a no-brainer.  In most jurisdictions these charges would be dismissed.  The alleged underlying facts involve "privileged communications" of a professional acting within the scope and ocurse of her professional obligation to the patient community.  We will keep our eyes on Texas.  Good luck nurse Anne Mitchell.

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