When Whistle-blowers Silenced, Many Hurt

Austin American-Statesman, January 4, 2011

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Criminal prosecution against nurses is rare and unprecedented. There's so much wrong here: abuse of prosecutorial discretion, arrogance, vindictiveness, good-ol'-boy idiocy. It staggers the imagination that such proceedings can occur in full view, even in Texas.

In a medically underserved county, what do you get when a vindictive sheriff combines with a hospital board hoping to turn red ink to black by hiring an affable doctor with promises and a restricted license?

You get harmed patients, two brilliant nurses fired, an excruciating criminal trial, the departure of the county’s only nurse practitioner, a $750,000 bill to taxpayers and an indictment for the doctor.

On Dec. 21, Texas attorney general officers arrested the physician in question, Dr. Rolando G. Arafiles Jr., and charged him with two third-degree felonies: misuse of official information and retaliation against the nurses who turned him in to the Texas Medical Board for subpar care. Arafiles, who’s from the Philippines, also had his passport seized.

It all started in 2008, when the physician was hired with promises of producing revenue for Winkler County Memorial Hospital in Kermit by ordering a lot of tests and admitting a lot of patients. The hire was made despite the fact that in 2007, the medical board had fined Arafiles $1,000 and placed a three-year restriction on his license for a variety of unprofessional and unethical offenses.

Within a few months, Vickilyn Galle and Anne Mitchell, nurse administrators responsible for quality of care at the 25-bed hospital, and nurse practitioner Naomi Warren, exercised their professional ethical duty to advocate for patient safety by reporting the physician. The reports were made anonymously, using only patient medical record numbers.

When Arafiles received notice from of the complaint, he urged his golfing buddy, Winkler County Sheriff Robert Roberts, to find out who made the anonymous reports.

The sheriff traced the letter to Mitchell and Galle, who were then indicted on charges of misusing official information, a third-degree felony, and fired from their jobs.

Publicity of the indictment and firing caused state and national nursing and watchdog communities to feel that the whistle-blower safety net had been whisked away.

The Texas Medical Board sent a letter to the prosecuting attorneys stating that it is improper to criminally prosecute people for raising complaints and that the board depends on reports from health care professionals to carry out its duty of protecting the public from improper practitioners.

Mitchell and Galle filed a federal civil rights suit against hospital and county officials, accusing them of malicious prosecution, violating their free speech rights and violating the state whistle-blower law.

The county prosecutor dropped the criminal charge against Galle but took the case against Mitchell to trial. During the trial, Arafiles offered excuses for his care, but no denial of the facts. The jury took less than an hour to acquit Mitchell.

Subsequently, the medical board charged Arafiles with poor medical judgment, nontherapeutic prescribing, failure to maintain adequate records, overbilling, witness intimidation and other violations.

In August, Mitchell and Galle’s federal lawsuit was settled when Winkler County officials agreed to pay them $750,000 for past and future earnings, an amount they will share with their attorneys.

Though the exoneration is comforting, Mitchell and Galle’s nursing careers are over, as employment opportunities are scarce in rural areas. Despite job offers from urban areas, the drive from their homes is financially unfeasible, and they don’t want to move.

Criminal prosecution against nurses is rare and unprecedented. There’s so much wrong here: abuse of prosecutorial discretion, arrogance, vindictiveness, good-ol’-boy idiocy. It staggers the imagination that such proceedings can occur in full view, even in Texas.

Inglis is a neonatal intensive care nurse at the Seton Family of Hospitals and editor of ‘Seton Nursing News.’

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