Nurses win but still bear burdens of trial (Part 3)

Austin American-Statesman, February 15, 2010

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State medical boards, which license and discipline doctors, depend on health care professionals of all disciplines to serve as their eyes and ears and report improper physician practice.

You and I are a little bit safer today because a West Texas jury acquitted a nurse of felony charges filed after she reported a doctor’s suspicious conduct to the state medical board. Had the jury in Andrews found Anne Mitchell guilty, the message for nurses and other health care professionals would have been: “Report a doctor and risk losing your job and going to jail.”

State medical boards, which license and discipline doctors, depend on health care professionals of all disciplines to serve as their eyes and ears and report improper physician practice.

Last April, Vickilyn Galle and Mitchell, nurses who had practiced a combined 47 years at Winkler County Memorial Hospital in Kermit (population 5,200), had numerous concerns about Dr. Rolando Arafiles. They went up their chain of command but got nowhere at their 25-bed rural hospital. So they anonymously turned the doctor in to the Texas Medical Board.

They gave the board six examples of improper practice, one of which was sewing a rubber tip not intended to be attached to humans to the end of a patient’s crushed finger, one of several surgeries he performed in the hospital ER without surgical privileges. The nurses also reported his encouraging patients coming to the hospital emergency department and health clinic to buy Zrii, a questionable nutrition supplement he sold, even following up his patients with e-mails about the supplements.

When the medical board notified the physician that he was under investigation for substandard care, he complained of harassment to his golf buddy, Sheriff Robert Roberts. He credits Arafiles with saving his life after a heart attack and also sells Zrii.

The sheriff discovered who made the complaint, and the nurses were fired by the hospital. They were subsquently charged with “misuse of official information,” a third-degree felony that carries potential penalties of two to 10 years in prison and a maximum fine of $10,000. Prosecutors dropped charges against Galle a week before the trial, citing “prosecutorial discretion.”

Trial testimony revealed that Arafiles had been slapped with a $1,000 fine levied by the medical board in 2007. The board found the doctor had been lax in his oversight of an obesity clinic in Victoria, where he practiced at the time. The board automatically notified the New York medical board, and he subsequently surrendered his New York license. The doctor, hired in 2008, testified that his salary was $200,000 and that this whole matter had left him feeling victimized and abused.

Curiously, the prosecution seemed to base its case on Mitchell’s reporting the doctor in “bad faith,” by calling witnesses to testify about remarks she made that purportedly showed animosity toward him.

As a nurse, I can tell you that a great day at work is knowing that my health care colleagues and I have met a patient’s needs with professionalism and care. A bad day at work is when, despite efforts, the patient does worse. But a horrible day at work is one in which a health care team member acts incompetently and improperly, causing a patient harm.

If I see this as a trend, do I feel animosity toward that provider? You bet. It’s a zero-tolerance situation, and reporting that practitioner comes swiftly and decisively. It’s our duty and part of our professional code of ethics to do so.

Around 50 nurses from across Texas attended the four-day trial. When the verdict was announced, tears flowed. Two jurors hugged Mitchell, and several told the nurses from the audience that it was obvious from the beginning what was up, that things had been blown out of proportion and that the case should never have gone this far. Jurors took less than an hour to return the verdict.
Longtime members of their professional organization, the Texas Nurses Association, created a legal defense fund for the nurses (accessible on the association’s Web site). More than $45,000 has been donated by 500 nurses from 40 states. The nurses’ families have expressed extreme gratitude for the fund that eases their considerable financial burden. They also said that healing from the emotional damage seems far away.

Anne Mitchell’s acquittal reinforces my faith in the judicial system. Criminal prosecution of nurses for reporting substandard care is unprecedented in any state. No one thought that would ever be a problem, but now that it’s happened, perhaps laws protecting whistle-blowers from criminal prosecution are in order.

Toni Inglis, MSN, RN CNS (retired), FAAN, a lifelong Austin resident and retired neonatal intensive care nurse and editor of NursingNews, writes a monthly opinion column for the Austin American-Statesman editorial page.