This has bizarre backwoods good ol’ boy written all over it, no offense to good ol’ boys: two American nurses, Vicki Galle and Anne Mitchell who, until they were fired in June, had been employed by the Winkler County Memorial Hospital in Kermit, West Texas for over 20 years. The two nurses not only lost their jobs at the small hospital, they are now facing criminal charges of misuse of official information, which, under the truly frightening Texas Penal Code, is a third-degree felony with a penalty of 2-10 years imprisonment and a $10,000 fine. * see updates below
What evil did Vicki and Anne perpetrate to merit this fate? On April 7th, 2009 they reported to the Texas Medical Board their concerns about Dr. Rolando Arafiles, one of three physicians on contract with the hospital. Arafiles, they claimed, was improperly encouraging patients to buy his own herbal “medicines”, among other concerns.
Arafiles in return filed a harassment complaint with the county sheriff’s department against the nurses. The subsequent criminal charges of misuse of official information claim that the nurses “sent patient files to the state medical board in an attempt to ‘harm, harass or annoy’ one of the hospital’s physicians”. The files included the medical record numbers of the patients affected, although no patient names were disclosed.
Even though the Texas Medical Board then stated in a letter to Winkler County district attorneys that disclosing of patient identification numbers is allowed under state and federal law, the now-unemployed nurses must still defend themselves against criminal charges. The TMB letter also reminded the district attorneys:
“It is improper to criminally prosecute people for raising complaints with the board; the complaints were confidential and not subject to subpoena; the board is exempt from federal privacy protection law; and, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners.”
Mitchell and Galle were not arrested right away after filing their April 7th complaint. No, they were arrested two months later on June 12th, just 5 days past the 60-day window that could have been part of the defense to prove retaliation under Texas whistleblower protection law. The two nurses are free on bail.
According to the Texas Nurses Association, which has created a legal defense fund for the Winkler County nurses, this the first case in Texas history in which nurses have been criminally charged for acting as patient advocates. Clair Jordan, Executive Director of the TNA, says:
“It is an absolute right that has directed the TNA for over 20 years to pass laws to protect nurses from such retaliation. This whole criminal case is just outrageous.”
The case against the two nurses is expected to go to trial in February 2010. This embarrassing case has so far attracted national attention, as you might expect. Rebecca Patton, president of the American Nurses Association representing almost 3 million nurses also wrote to the Winkler County attorneys:
“The world is watching. We will be monitoring this case closely.”
This apparently is not Arafiles’ first disciplinary run-in with the Texas Medical Board. In 2007, he entered into an agreed TMB order requiring him to pay an administrative penalty of $1,000 and complete Continuing Medical Education courses in the areas of ethics, medical records, and treatment of obesity. The order also prohibited him from supervising Physician Assistants or Advanced Nurse Practitioners. The action was based on allegations that Arafiles failed to adequately supervise a Physician Assistant. And just last month, reports from the Texas Department of Health and Human Services on investigations at the Winkler County Memorial Hospital indicate that Arafiles had performed non-emergency procedures in the Emergency Room against hospital policy, and that he has also failed to abide by the rules when he brought an “oxygenated olive oil cream” from his car to use on a patient.
Find out more about how West Texas handles whistleblowers.
NEWS UPDATE, PR Newswire, February 13, 2010:
Not Guilty – Texas Jury Acquits Winkler County Nurse
AUSTIN, TEXAS – It took the jury less than an hour to return a not guilty verdict this week for Anne Mitchell, RN, remaining co-defendant in the criminal trial that has come to be known as the “Winkler County Nurses” trial. Mitchell and her colleague Vicki Galle (until her case was dismissed last week) faced a third-degree felony charge in Texas of “misuse of official information,” for reporting a physician to the Texas Medical Board for what she believed was unsafe patient care. Susy Sportsman, president of the Texas Nurses Association, commented:
“We are very pleased about the not guilty verdict and that justice prevailed for Anne Mitchell. If anything was to be gained from the absurdity of this criminal trial, it is the reaffirmation that a nurse’s duty to advocate for the health and safety of patients supersedes all else.”
NEWS UPDATE, Star Telegram, February 4, 2011:
Physican Who Had Nurses Prosecuted Placed On Probation
AUSTIN, TEXAS – Texas medical regulators on Friday placed on probation a West Texas doctor involved in the unsuccessful prosecution of two nurses who complained anonymously that the physician was unethical and risking patients’ health.
The Texas Medical Board technically suspended Dr. Rolando G. Arafiles Jr. but allowed him to continue to practice medicine while on probation for four years if he completes additional training, is monitored by another physician, and submits all patient medical and billing records for review.
In the mediated order signed in Austin, the board concluded that Arafiles failed to treat emergency room patients properly, did not apply hormone therapy to a female patient appropriately and failed to document patient diagnoses and treatment plans.
The board also found that Arafiles improperly tried to intimidate two nurses who reported him to the medical board for unethical behavior.
Arafiles has also been indicted on criminal charges in the case. He is accused of asking the Winkler County sheriff in 2009 to investigate who reported him to the medical board after he learned that the board was looking into a complaint against him.
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