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.
For more on whistleblowing, read:
As a nurse, I just cannot wait to see how this case turns out.
Do the good people of Texas not realize how this case makes them all look like backwater buffoons? When even the state’s own authorities remind this hick town that this is NOT a protection of privacy issue – yet this case is still allowed to proceed? It’s clearly a protection of PATIENT CARE issue.
I like to believe that I would have done the same thing as these two conscientious and brave nurses did when they saw things they knew were not right. Just as your website masthead says: there’s a difference between doing things right and doing the right thing. These nurses did the right thing.
Witchhunting is alive and well in West Texas, apparently.
I’m a registered nurse too and I find this story appalling. This does make West Texas look like some kind of backwater hicksville. How embarrassing for all concerned. These nurses deserve a public apology, reinstated jobs, and financial compensation from the doc involved.
The real story is being missed here. Their is nothing wrong with recommending vitamins or olive oil. I guess there aren’t any Whole Foods in Odessa!
These nurses remind me of the japanese soldiers that were stranded on an island for 20 years after WWII ended, and didn’t know the war was over yet. The nurses should not turn in doctors to the medical board for such petty things. The true story here is that a man named Stephen Barrett who hates vitamins directed these nurses to turn in this doctor anonymously. These cowards only like to hide in the dark. They don’t like the light of day to shine on their villanous treacherous acts. The nurses have committed a minor crime by giving over patient records to a third party without the patient or guardians permission. They should have to pay a hefty fine for this or par with what the physicians have to pay the petty Texas Medical Board for record keeping violations. How about 10,000 each. That would be fair.
The CBS story was a set up hit piece. Oh how shocking!!!! Using olive oil that I put on my spaghetti at dinner, and on my garlic bread!!! I almost fainted when the story broke.
John Brown, you are clueless.
Nurses have an absolute right and obligation to report inappropriate medical behavior to the Medical Board. This reporting is, by law, confidential. Any protected health information that is shared with the Board is exempt from HIPAA requirements to obtain permission or consent from the patient. \
But then, like other West Texas Good Ol’ Boys, it appears that following the law or even comprehending the law is truly beyond your ken.
Mr. Brown’s sarcasm aside, punishing nurses for blowing the whistle is a serious blow to any patient safety effort.
This is one of the most appalling stories I have read.
John Brown, you are an idiot! Patient protection comes first. You obviously are clueless. I feel sorry for your family, you must be an embarrassment for them.
Ray Brown, you’re going to comment on ethics? You’re one to throw stones! Here I think YOU’RE the embarrassment.
The truly terrible thing is, the schmuck Dr. won. Even though the nurses were acquitted, many now will not want the hassle of being arrested and tried to protect someone else.
The doctor should have had his medical license revoked and all charges should have been dropped prior to any trial. They should also be suing the guy for all the ill-gotten gains he enjoys. Doctors are not gods. Too many are some of the most disgusting charlatans on the planet. Every medical ethics and monitoring organization is to blame for this fiasco. Doctors are, too often, given a clear field to do as they choose, and that is seldom in the best interest of their patients. Doctors who take their Hippocratic Oath seriously are few and far between. If you know one, hang on to him.
“If you know one, hang on to him….” I’m sure you meant to add: “…or her!”