Retaliation against West Texas nurses is unacceptable (Part 1)

Austin American-Statesman, August 3, 2009

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In a stunning display of good ol’ boy idiocy and abuse of prosecutorial discretion, two West Texas nurses have been fired from their jobs and indicted with a third-degree felony carrying potential penalties of two-to-ten years’ imprisonment and a maximum fine of $10,000. Why? Because they exercised a basic tenet of the nurse’s Code of Ethics — the duty to advocate for the health and safety of their patients.

The nurses, in their 50s and both members of the American Nurses Association/Texas Nurses Association, reported concerns about a doctor practicing at Winkler County Memorial Hospital in Kermit. They were unamused by his improperly encouraging patients in the hospital emergency department and in the rural health clinic to buy his own herbal “medicines,” and they thought it improper for him to take hospital supplies to perform a procedure at a patient’s home rather than in the hospital. (The doctor did not succeed, as reportedly he was stopped by the hospital chief of staff.)

The nurses went up their chain of command with their complaints. They got nowhere with their 25-bed rural hospital. So they anonymously turned the doctor into the Texas Medical Board using six medical record numbers of the involved hospital patients .

When the medical board notified the physician that he was under investigation for mistreatment and poor quality of care, he filed a harassment complaint with the Winkler County Sheriff’s Department.

To find out who made the anonymous complaint, the sheriff left no stone unturned. He interviewed all of 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.

At some point, the sheriff obtained a copy of the anonymous complaint and used the description of a “female over 50” to narrow the potential complainants to the two nurses. He then got a search warrant to seize their work computers and found a copy of the letter to the medical board on one of them.

Charged by the county attorney’s office with “misuse of official information,” on July 15 a hearing in the Winkler County courthouse on motions to dismiss the nurses’ case resulted in no rulings. In response, the nurses got widespread support.

The Texas Nurses Association responded by creating a legal defense fund for the Winkler County nurses (accessible on its Web site.) Rebecca Patton, president of the American Nurses Association, which represents the nation’s almost 3 million nurses, wrote a letter to the Winkler county and district attorneys saying, “The world is watching (and) we will be monitoring this case closely.”

The Texas Medical Board sent a letter to the attorneys stating that it is improper to criminally prosecute people for raising complaints with the board; that the complaints were confidential and not subject to subpoena; that the board is exempt from federal HIPAA law; and that, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners.

This situation shouldn’t happen anywhere, but it especially shouldn’t happen in Texas, which hassome of the toughest whistle-blower and patient advocacy protections for nurses in the nation, thanks to the leadership of Texas Nurses Association.

A hearing on the case is scheduled for Wednesday.

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.