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Legal Speak

Blowing the Whistle on the Way to Jail

Published February 18, 2010 10:30 AM by Tony DeWitt

As an attorney for health care practitioners in a variety of settings, I've been privy to a number of them blowing the whistle on everything from bad medical care to wage and hour violations.  Even though the law should protect an employee from retaliation for "doing the right thing" and alerting a governmental agency to problems in patient care, there is almost no organization that does not repay this civic-minded behavior back by way of firing, termination, or "freezing out" of the employee.  The loss of a job for blowing the whistle stings, and it can affect a person's ability to get a new job.  But until a few months ago I would never have believed that blowing the whistle could get you into criminal legal trouble.

Then I found out that in Texas, where justice for health care providers is often elusive at best, the county prosecutor can make life into a living hell for a whistleblowing nurse. Anne Mitchell, an RN with Winkler County Hospital, believed that Dr. Rolando G. Arafiles, Jr., a local physician who worked at the hospital, was mistreating patients. Along with another nurse she made an anonymous report to the Texas Medical Board. In the letter they sent they identified patients not by name but rather by medical record number.  When the Board notified the doctor, the doctor ran to the hospital and complained that the nurses were undercutting him.  The hospital reportedly had the interesting policy of requiring nurses to blow the whistle internally before contacting a governmental agency -- a policy that is distinctly unlawful under federal law (hospitals must conduct training on the False Claims Act, and a hospital policy cannot undercut the principles of federal law). The hospital called the sheriff.

In what should be a violation of the trust and privilege associated with a good faith report of practitioner misbehavior, the Texas Medical Board gave a copy of the letter written by the two nurses to the Sheriff, who found that the letter described one of the nurses as a white woman in her fifties. The sheriff, in what would be a violation of the Fourth Amendment in any other state, but is probably just another day in the backwaters of West Texas, secured a search warrant for the computers of several nurses over 50, and found the letter on the computer. The sheriff, who coincidentally is also a patient of Dr. Arafiles, arrested the nurses and charged them with the felony of misuse of official information for using the medical record numbers in their complaint to the Texas Medical Board. After 25 years with the facility, the hospital fired them after their arrest. If convicted they faced ten years prison time for blowing the whistle on an allegedly bad doctor.

Apparently, in order to be elected to the job of prosecutor in West Texas, one does not have to know anything about the criminal law, the concept of the burden of proof, or the ethical requirements imposed on prosecutors. Scott M. Tidwell, the prosecutor who tried the case, appears to have been ignorant of these concepts based on his handling of the case. 

That Tidwell was even allowed to try the case -- instead of recusing and seeking review of the case by an outside prosecutor as legal ethics would seem to require -- is a curiosity in itself.  According to testimony, Scott M. Tidwell is Dr. Arafiles' personal lawyer.  A prosecutor whose independence can reasonably be questioned should recuse himself from prosecution of a case. This is why when a prosecutor's child or spouse gets arrested, independent prosecutors are appointed.  But that did not happen here. That is odd because  there is reason to believe that Tidwell's duty to his personal client (Arafiles) might have reasonably affected his ability to exercise independent judgment as a prosecutor. Or said more directly, did Tidwell let his relationship with one client influence his duties and responsibilities to the community he was elected to serve?

Why is that important here? Because the ABA Model Rules of Professional Responsibility state that a prosecutor  shall "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." (Model rule 3.8)  In addition, the comments to those rules say that "[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence."  In other words, a prosecutor has a duty to bring cases for a proper purpose (to punish and deter criminal wrongdoing) and not for an improper purpose (to retaliate against the prosecutor's personal physician).  It is very clear to anyone who has ever worn a lab coat that the case had no legal merit as a nurse has a legal duty to advocate and protect patients.  Tidwell appears to have ignored these important facts.  He also appears to have ignored competent evidence of Arafiles' medical misadventures as recounted in court: performing a skin graft in the ER without proper surgical privileges, suturing a rubber cup to a patient's finger, and selling herbal supplements to patients.  This is important because a prosecutor has an ethical duty to seek justice, not convictions.

Fortunately the citizens of Andrews County, where the case was tried this past week, have a lot more common sense than the elected prosecutor of Winkler County. According to media reports they acquitted the nurse on the first ballot and when speaking to the media questioned why the nurse was even arrested in the first place.  They saw nothing criminal in the nurses' conduct.

Mitchell and the other nurse who was charged (but whose criminal case was dismissed prior to trial) have sued the county for their prosecution and have sued in federal court for violations of civil rights. One can only hope that the nurses get a fair hearing in that matter and are allowed to recover for the loss of income and emotional harm caused to them by requiring them to face prosecution in a case where it is apparent that no crime was ever committed.

Readers may wonder if there is some remedy available for what appears to be ethical lapses by the prosecutor in this case.  In Texas, the Chief Disciplinary Counsel is responsible for investigating ethical misconduct. Should readers want to let that office know how they feel about the prosecutor's conduct, they can send a letter to:

Chief Disciplinary Counsel

Texas Law Center
1414 Colorado St.
Austin, TX 78701

posted by Tony DeWitt
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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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