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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

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