Who Are the Real Victims of the Winkler County Case?
At some point in our lives we'll all want a personal patient safety advocate to stand up for us when we're not receiving the care we need. As nurses, this job often falls in your lap. In fact, you're mandated by your boards of nursing to report substandard care. Simply put, it's your job to protect the patient; even when he needs protection from the physician.
Anne Mitchell, RN, and Vicki Galle, RN, have been caring for their patients for more than 20 years. But this summer, after both nurses tried to report what they considered to be subpar care by a physician, they ended losing their jobs and getting arrested. Today, they face third-degree felony charges and could wind up serving 10 years in prison.
You can read more about their case here, but in the time since I wrote that article, I learned more about this case and the key players who are at the center of it. And despite all the research I've done, I seem to have more questions than answers.
Seeing the Sheriff
At the heart of the story are two nurses who filed an anonymous complaint to the Texas Medical Board (TMB) on April 7 to report what they considered unprofessional services by Rolando Arafiles Jr., MD, one of only three physicians at the 15-bed county hospital in Kermit, TX, and reportedly the only physician who lives in the small town.
The nurses complained that Arafiles improperly encouraged patients at the hospital ED and the Winkler County Rural Health Clinic to buy herbal medicines and said that the hospital's chief of staff once stopped the physician from taking medical supplies to perform a procedure at a patient's home.
As it turns out, Arafiles operates under a restricted license and cannot supervise or sign off on prescriptions written by a PA, nurse or surgical assistant. Apparently, his license was up for review in April 2007 by the TMB which stated that Arafiles "failed to make an independent medical professional decision about the appropriateness of the protocol" at the weight loss clinic where he authorized prescriptions for the diet drug phentermine for patients who were not classified as obese.
And yet, when the TMB notified the physician he was under investigation again, Arafiles called the sheriff.
This is where the story gets strange. Why didn't Arafiles go to a supervisor or the hospital board instead of contacting local authorities? As it turns out, Arafiles and Sheriff Robert Roberts are reportedly friends, and the sheriff is also a customer of Arafiles' herbal supplement business.
Arafiles filed a harassment complaint with the Winkler County Sheriff's Office which then launched an investigation that led to indictments charging the nurses for "taking non-public information and using it for a non-governmental purpose."
Criminals?
Because Roberts was conducting a "criminal" investigation, he was able to request a copy of the nurses' complaint from the TMB. The report indicated that the person making the complaint was a female RN, over 50 years old who had worked at the hospital for over 20 years - a description fitting both Mitchell and Galle.
The letter was not signed due to the author's fear that she would lose her job. Roberts also interviewed 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. The complaint included six patient numbers, but did not include the patients' names. The sheriff then obtained a search warrant to seize the nurses' work computers and found a copy of the anonymous complaint letter to the TMB on one of the computers.
The search and arrest warrant reads that "certain subjects interviewed appeared deceptive about facts surrounding the alleged improper use of medical and/or hospital records."
"Appeared deceptive?" How does one appear to be deceptive? What were the "facts" at the time? Was the sheriff not familiar with the BON mandate that requires nurses to report substandard care? Why did the sheriff immediately assume the nurses were guilty and the physician innocent?
Fighting Back
On Aug. 28, attorneys for Mitchell and Galle struck back by filing suit in federal court alleging not only illegal retaliation for patient advocacy activities, but also civil rights and due process violations, said Jim Willmann, JD, Texas Nurses Association general counsel and director, governmental affairs. The lawsuit names not only the hospital, but also the county, hospital administrator, and physician as defendants. Additionally, because the nurses claim violation of their civil rights, the district attorney, county attorney and sheriff are also named.
The nurses' complaint states that their termination and criminal indictment was illegal retaliation in violation of the Nurses Protection Act (NPA) and several other Texas laws. The TNA stated that several pretrial motions have been filed by the nurses' attorneys, but as of Sept. 1, all but two of have been denied. Those that stuck include a motion to dismiss the case due to prosecutorial vindictiveness and a motion for access to HIPAA protected patient records.
The nurses' attorneys were seeking dismissal of the charges, but a district judge denied the motions and ordered the case to trial. Although a trial date has not yet been scheduled, the only date open for the 2009 docket for a Winkler County trial is Nov. 3, according to the Winkler County District Clerk's office. However, due to the publicity surrounding the case, the possibility of changing the venue of the trial is also in consideration.
According to the TNA, no current Texas law, or laws in any other state, prohibits a local prosecutor from pursuing criminal action as the Winkler County district attorney has done in this case. It may be an abuse of prosecutorial discretion, and the nurses may ultimately have an action (lawsuit) for malicious prosecution, but no one anticipated the need to try to limit the discretion of local prosecutors. No one ever imagined that a nurse would be criminally prosecuted for reporting a patient care concern to a licensing agency.
And yet, two nurses in Texas must defend themselves against the criminal charge. If these two nurses are found guilty, the person who will suffer in the end is the patient.
The TNA established a legal defense fund with the hope of raising at least $10,000 to help pay the legal expenses of the two nurses. To date, the fund has generated over $35,000. To make a donation, visit the TNA Web site at http://www.texasnurses.org/.