Articles

The legal establishment of Winkler County, Texas conspires to punish whistle blowing nurses

On Science-Based Medicine, several of us have at various times criticized state medical boards for their tolerance of unscientific medical practices and even outright quackery. After all, Dr. Rashid Buttar still practices in North Carolina and the medical board there seems powerless to do anything about it. However, state medical boards have other functions, one of which is to respond to complaints of unethical and dubious behavior about doctors. Key to this function is protection; i.e., if someone reports a doctor, that person needs to be sure that the state will protect her from retaliation from that doctor of the hospital. About five months ago, I reported a true miscarriage of justice, the sort of thing that should never, ever happen. In brief, it was the story of two nurses who, disturbed at how a local doctor was peddling his dubious “herbal” concoctions in the emergency room of the local hospital when he came in to see patients, reported him to the authorities. Moreover, they had gone up the chain of command, first complaining to hospital authorities. After nothing happened for months, they decided to report the physician, Dr. Rolando Arafiles, to the Texas Medical Board because they honestly believed that this physician was abusing his trust with patients and behaving unethically by improperly hawking herbal supplements that he was selling in the rural health clinic and the emergency room of Winkler County Memorial Hospital.

Even though under whistleblower laws the identities of these nurses should have been kept secret, after he learned that a complaint had been filed against him Dr. Arafiles went to his buddy the Winkler County Sheriff Robert L. Roberts, who left no stone unturned in trying to find out who had ratted out Dr. Arafiles:

To find out who made the anonymous complaint, the sheriff left no stone unturned. He interviewed all of the patients whose medical record case numbers were listed in the report and asked the hospital to identify who would have had access to the patient records in question.

At some point, the sheriff obtained a copy of the anonymous complaint and used the description of a “female over 50″ to narrow the potential complainants to the two nurses. He then got a search warrant to seize their work computers and found a copy of the letter to the medical board on one of them.

The result was this:

In a stunning display of good ol’ boy idiocy and abuse of prosecutorial discretion, two West Texas nurses have been fired from their jobs and indicted with a third-degree felony carrying potential penalties of two-to-ten years’ imprisonment and a maximum fine of $10,000. Why? Because they exercised a basic tenet of the nurse’s Code of Ethics — the duty to advocate for the health and safety of their patients.

On Saturday, the New York Times reported on the story, as there have been significant developments since August. Specifically, although the charges against one of the nurses has been dismissed, Anne Mitchell, RN, is going to stand trial beginning today:

But in what may be an unprecedented prosecution, Mrs. 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.

So let me get this straight (yet again). A dedicated nurse does what her professional code of ethics demands that she do, even knowing at the time that she did it that it might cost her her job, and the end result is that the good ol’ boy network in Texas tries to throw her in jail for three years on trumped up charges that even the Texas Medical Board states are bogus. Even Ms. Galle won’t be unscathed. As the Texas Nurses Association points out, she will have a felony indictment on her record, which will haunt her the rest of her professional career. In fact, in all my years in medicine, I cannot recall a more blatant example of punishing a whistleblower or of the good ol’ boys network getting together to punish an uppity nurse who dared to call a doctor out on his unethical behavior, which was described in a bit more detail in the NYT story:

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.

One thing that I hadn’t known before is that Sheriff Robert L. Roberts had been a patient of Dr. Arafiles and credited him with saving his life. As a result, Sheriff Roberts has clearly gone on a vendetta, abusing his power in an most outrageous manner to track them down. One wonders if Sheriff Roberts spends as much time, effort, and cleverness in a typical case when he has to hunt down real criminals, such as thieves and murderers, as he did hunting down down two middle-aged nurses doing their duty. Moreover, from the NYT story, the justifications of Stan Wiley, hospital administrator for Winkler County Hospital, made it clear (to me, at least) that the reason the hospital is standing by Dr. Arafiles is not because he’s a good doctor, but rather because they have a hard time recruiting doctors to west Texas, having recruited Dr. Arafiles even though he had a restriction on his license and had been in trouble with the state medical board before. Particularly galling and disingenuous was his claim:

Mr. Wiley said he believed that the nurses had acted in bad faith because they went to the state despite his internal efforts to discipline Dr. Arafiles. But, he said, “I don’t believe they did it on a personal vendetta.”

Unfortunately for Mr. Wiley, that does not appear to be the definition of “bad faith” under Texas law. “Good faith” does not require that the whistleblower wait for the hospital to act on reports against a doctor, contrary to the delusion under which Wiley appears to be laboring. He may think that’s bad faith because the nurses lost patience with the hospital administration, but it’s not. Indeed, Mitchell and Galle could have gone straight to the Texas Medical Board without even trying to go through the hospital administration first if they had wanted and it would not have been an act of bad faith. As the story explains, under Texas law, good faith requires only a reasonable belief that the conduct being reported is illegal, and other reports point out the letter from the Texas State Medical Board stating that the nurses had done nothing wrong in reporting Dr. Arafiles’ activities to it. Wiley is just plain wrong about this; it isn’t even close. The most likely explanation for his supporting this outrageous abuse of prosecutorial power is that hospital administration was roundly embarrassed (as it should be) when this story came out. It hadn’t acted; so Mitchell and Galle did. That these two nurses felt obligated to risk their careers (and, even though they couldn’t have known it at the time, their freedom) by reporting Dr. Arafiles derived not from bad faith, but from the ineffectiveness of the hospital’s response.

Indeed, the very fact that Sheriff Roberts and County Attorney Scott D. Tidwell continue to pursue this case to trial strongly suggests that it is not Ms. Mitchell who’s engaging in a vendetta. Rather, it’s Dr. Arafiles through his buddy Sheriff Roberts and the clueless County Attorney Scott Tidwell who are all teaming up to engage in a bit of payback against two brave but hapless nurses. It’s so blatantly obvious from even a cursory examination of the case, and a deeper examination only reinforces this point. It is utterly outrageous and unforgivable, and there’s definitely something rotten in west Texas, specifically Winkler County. Regardless of whether Dr. Arafiles is guilty of abusing his medical license and practicing medicine that endangers patients, what’s rotten in west Texas goes under the names of Dr. Rolando Arafiles, Jr., Sheriff Robert L. Roberts, Jr., and County Attorney Scott M. Tidwell. Regardless of whether Dr. Arafiles did anything wrong medically or ethically, these three men have done a grave wrong to Mitchell and Galle. I even have to wonder if what Sheriff Roberts did by going so far to unmask an anonymous complainant to the Texas Medical Board is illegal.

If it isn’t, it ought to be.

ADDENDUM: You and I can help fight this abuse of power by contributing to Mitchell and Galle’s legal defense fund through the a link on the Texas Nurses Association website‘s front page. Mitchell and Galle’s careers have been ruined through this malicious prosecution; they can’t find work and may never be able to find work as nurses again, at least not in west Texas. They’ve also racked up huge legal bills trying to defend themselves against this malicious and abusive prosecution.

Posted in: Medical Ethics, Politics and Regulation

Leave a Comment (22) ↓

22 thoughts on “The legal establishment of Winkler County, Texas conspires to punish whistle blowing nurses

  1. weez says:

    Welcome to Texas.

    I lived in the D/FW area for a while in the 1980s- just long enough to work out that good-ol-boy networking was the order of the day. Then I got out. Fast.

  2. wertys says:

    This is an appalling story. In Australia, there was the infamous ‘Dr Death’ case in Queensland where an incompetent surgeon was reported by nursing staff for performing inappropriate operations in a country hospital, and they were fortunately protected by whistleblower legislation. There should be legal protection from prosecution for complaints made in good faith, even if the complaints are not upheld. The shonky doctor in this case has established not just a few instances of poor judgement but a pattern of systematic abuse of his position of trust.

    **Monster facepalm**

  3. Scott says:

    One wonders whether Roberts and Tidwell could be charged with wrongful prosecution (among possible other charges).

  4. JonF says:

    I can’t help but wonder if the hospital admin considered that he might need nurses, too. I’m sure the ones left there aren’t exactly pleased with the management.

  5. windriven says:

    @ David Gorski
    OK – I sent a nice contribution. The nurses’ organization is matching the first $5000 sent in. If each of the SBM ‘members’ gives what they can, $5k should be easy!

    @ Scott
    One thinks they ought to be charged but I’d bet a shiny Texas belt buckle that they won’t be charged.

  6. crazyred says:

    Add this to the list of what is wrong with Texas.

    Wertys, Dr. Death hailed from the United States. Kaiser Permanente physician colleagues gave glowing recommendations of him to his employer in Australia. He had to surrender his NY license and had restrictions placed on his Oregon one before he had moved to Australia.

    Why KP colleagues would have written such glowing letters of someone who had restrictions placed not only on his license but also by the hospital is beyond me but I think it plays into the whole ‘boys club’ mentality where incompetent doctors are not only protected by other doctors but also by those outside the profession such as in the Texas case. Surely other doctors have noticed Arafiles incompetence…but did any of them stand up for the nurses and also speak out against Arafiles? They may have; who knows.

    I am aware that this blog is written by physicians and I am certainly not saying that all doctors or most doctors enable the truly horrible doctors…but I think it does happen in some places where the hospital culture encourages such things.

  7. Zoe237 says:

    This is horrifying. Thanks for posting the info.

  8. Scott says:

    @windriven:

    Oh, I absolutely agree that they won’t be. What I was wondering is whether they *could* be – that is, if their behavior is actually illegal or just unethical.

  9. SkepticalLawyer says:

    This story is yet more evidence of why we should all be scared that Texas has so much influence over what goes into school textbooks that are sold nationally.

    If the sheriff and county attorney did not believe that the nurses committed crimes, then they have acted illegally. The nurses may at least have civil claims against them (if they can find lawyers to represent them) for violating their constitutional rights. There may even be federal crimes here (think officers in the Rodney King case), but the U.S. Attorney for that part of Texas would have to want to prosecute them.

  10. momkat says:

    “The Texas Medical Board sent a letter to the attorneys stating that it is improper to criminally prosecute people for raising complaints with the board; that the complaints were confidential and not subject to subpoena; that the board is exempt from federal HIPAA law; and that, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners.”
    “Rebecca Patton, president of the American Nurses Association, which represents the nation’s almost 3 million nurses, wrote a letter to the Winkler county and district attorneys saying, “The world is watching (and) we will be monitoring this case closely.”

    And yet, the prosecutor proceeded. Boggles the mind.

  11. windriven says:

    I am shocked and amazed. This post has generated exactly 10 responses as of this moment. Two nurses find their lives and careers in ruins as a result of standing up for principles that most of us who visit this site claim to support. Yet the silence here is deafening. Cut an inch of skin off the end of a penis and the crowd goes wild. Suggest that e-cigarettes are drugs and delivery systems and the hue and cry echoes for weeks. But the sight of a couple of courageous nurses crucified in west-by-god Texas by a couple of slack-jawed yokels raises barely an eyebrow.

    If you want to know why idiotic non-remedies get a free pass, why colon-cleansing, shakra-shaking, herb-decocting, snake charmers get a free pass, have a look around you.

    Talk is cheap and it is a lot easier than action. But it doesn’t accomplish all that much.

  12. LeeTilson says:

    We can explain the prosecution of these nurses on local politics. Explaining the silence of the national healthcare organizations (other than the ANA) is more difficult? Why is the ANA slone? Where are JCAHO, the AMA, and the AHA?

    The silence tells everyone who stands up for patient safety:

    1. You may be right.

    2. You may be doing exactly what we say you should do.

    3. But you are alone. If you go to jail, count on us to do this: nothing.

    Want to be safe when you go to the hospital? Who is going to jail for 10 years to make sure your care is safe? I am concerned about these nurses. I am far more concerned about what happens over the course of the next 5 years when nurses have to decide whether to blow the whistle. The fact that no one stands up for these nurses if profoundly disturbing.

    Share your ideas for action with me.

    http://tinyurl.com//texas-nurses-break-the-silence

    Lee Tilson
    http://www.rethinkingpatientsafety.com
    http://tinyurl.com/texas-nurse

  13. Scott says:

    I suspect there’s not a lot of comments here since there’s really nothing to discuss. It’s appalling, everyone’s in agreement, what more is there to say? Differing opinions are what generate lots of discussion/argument; a thread consisting of “yes, I agree” repeated by many different people might be long, but it would also be pointless and boring.

  14. windriven says:

    I hope you’re right Scott. But one of the things that concerns me about SBM is that while it presents interesting topics and encourages discussion, most of that discussion is predictably polarized and generates far more heat than light. Further, there is no structure on which to build action to foment change. Maybe many of the individuals who comment here are actively working to make the world a better place. But I’d be willing to bet that many are just gasbags much more interested in arguing the number of angels that might dance on the head of a pin.

    “Differing opinions are what generate lots of discussion/argument; a thread consisting of “yes, I agree” repeated by many different people might be long, but it would also be pointless and boring.”

    I couldn’t agree more. But talk without action is boring in its own right. SBM isn’t likely to change many minds. It can help us to hone our critical faculties, it can promote awareness of issues; but the blogs and the commentary on their own aren’t likely to change minds, laws, or the popularity of magical medicine.

    I had hoped to see a rush to support folks who are paying the price for turning high ideals into meaningful action. Dr. Gorski did his part. Where are all the others?

  15. BillyJoe says:

    For my part, I was torn between saying something in support and not knowing enough details about the case to make the judgement that their case justified that support, though on the surface it sounds like it does. In the end, I didn’t say anything but have kept coming back to see if there was something I could respond to. Seems that now there is and here is my contribution for what it is worth.

  16. TsuDhoNimh says:

    An earlier article said, “The Texas Medical Board sent a letter to the attorneys stating that it is improper to criminally prosecute people for raising complaints with the board; that the complaints were confidential and not subject to subpoena; that the board is exempt from federal HIPAA law; and that, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners.”

    If it’s not subject to subpoena, why did they hand it over? How did he get his hands on the complaint?

  17. David Gorski says:

    He issued a search warrant for the nurses’ computers at Winkler County Hospital, and found copies of the letter to the TMB on the hard drives.

    You could say that the nurses should have used their personal computers at home, but then no doubt, finding nothing on their work computers, Sheriff Roberts would have gotten a search warrant for their home computers or laptops and then charged them with improperly having patient information on their personal computers (a potential HIPAA violation).

    In any case, how could the nurses have known that that Sheriff Roberts would go that far?

  18. JJ from Cowtown says:

    As far as activism / involvement goes there’s one thing I thought of – Are Sheriffs elected there?

    Is there any hope of local media seizing upon this fairly clear misuse of power? Or is my naivety showing?

  19. windriven says:

    @JJ from Cowtown

    I’m not sure that retribution is the most pressing need and heavy funding of candidates to oppose these buffoons could blow up in our faces (“are we going to let a bunch of outside agitators tell us how to run Cowflop County?”)

    The issue at hand is: how do we support the nurses? Clearly, contributing to the cause is a start. I have and I sincerely hope that every SBM reader will as well.

    I suspect that this is a case where the bright light of day may be the most potent weapon. The more regional and national attention is focused on this troika of dufuses the more local people in that county will recognize that they are laughingstocks and nobody likes to be laughed at.

    I’m not too worried about the nurses being convicted. I have considerable confidence that a conviction would be overturned on appeal. But the damage will have been done and the message will be clear: f*#! with us and the jack-booted foot of the county will be on your neck. One expects this in Burma, not in America.

    Unfortunately, county sheriffs and prosecutors are pretty bulletproof when they transgress. Voters are the only authority that are likely to sit in judgment of these two. Unless one of the nurses can get the feds interested on a civil rights basis. Probably worth a try.

  20. bigpuma says:

    Jury Acquits.
    http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-texas-nurse-acquitted,0,1220344.story

    I am glad the jury came back so quickly with the correct decision.

  21. windriven says:

    NOT GUILTY

    The Texas Nurses Association is reporting that Anne Mitchell has been found not guilty in Winkler County Nurse Trial. Details to follow.

Comments are closed.