Anne Mitchell (left) and Vickilyn Galle after their indictment in 2009

Facing a $27 billion budget shortfall, Gov. Rick Perry has revived a failed and tired idea from past legislative sessions. To save a paltry $7 million, he proposes to combine under one umbrella some of the most essential agencies in state government — the boards regulating doctors, nurses, dentists, chiropractors, podiatrists, optometrists, pharmacists, psychologists and physical and occupational therapists.

The health professions boards were created to protect the public from harm. Although sluggish from recent years’ budget cuts, they are effective in protecting us because they are separate agencies with investigators trained specifically for each respective health discipline. They make you, me and every Texan a lot safer when we seek health care.

From the economic and public safety standpoints, the governor’s one-size-fits-all gesture makes no sense at all.

It costs the state $29 million to run these boards, but through licensing fees and disciplinary fines they collectively bring in $79 million for the state’s general fund (numbers courtesy of the Legislative Budget Board and the Texas comptroller’s office).

For example, the Texas Medical Board, which oversees doctors, had a budget of $9.4 million for fiscal year 2010 but brought in $35.7 million to state coffers.

The separate regulatory boards are cash cows for the state. It makes me wonder if the governor can count.

The professions are exceedingly different, with vocation-specific investigators. Nursing experts know nothing about regulating dentistry and vice versa.

The complex Winkler County case demonstrates the importance of a separate health board to protect the public.

The medical board first investigated Dr. Rolando G. Arafiles Jr. in 2007. It found that among other unprofessional and unethical offenses, he failed to keep adequate medical records in supervising a physician assistant who was prescribing nontherapeutic drugs at a weight loss clinic. His penalty was a $1,000 fine and a three-year stipulation on his license.

The doctor relocated, and in 2009, nurses Anne Mitchell and Vickilyn Galle of Winkler County reported the doctor to the board citing numerous cases of improper care, one of which was examining the genitalia of patients in the rural emergency room whose symptoms included stomach distress, headache and sinus pain, and blood pressure and jaw problems.

When the board notified Arafiles of the complaint, he enlisted his golfing buddy, the county sheriff, to find out who reported him. After identifying the nurses through spurious means, the hospital administrator immediately fired them, and the county and district attorneys charged the nurses with misuse of official information — a third-degree felony punishable by 10 years in prison and/or a $10,000 fine.

The medical board sent a letter to the prosecuting attorneys stating that it is improper to criminally prosecute people for raising complaints with the board — that the board depends on the eyes and ears of health care professionals to carry out its duty to protect the public from improper practitioners.

After the nurses’ report, the board investigated Arafiles and charged him with poor medical judgment, nontherapeutic prescribing, failure to maintain adequate records, overbilling, witness intimidation and other violations.

Mitchell and her family endured a torturous eight months waiting for the criminal trial to determine if she would go to prison or be fined an amount she could not pay. In 2010, Mitchell was acquitted in less than an hour, making national headlines and prompting a Texas attorney general investigation into the doctor and Winkler County officials.

The medical board subsequently issued a public reprimand of Arafiles, ordering physician monitoring of his practice and a $5,000 fine. He also was ordered to complete a rigorous course followed by assessments of his competence and medical jurisprudence.

Soon thereafter, the doctor, sheriff, county attorney and hospital administrator were indicted on charges of retaliation against the nurses. They await trial.

The Winkler County case demonstrates the crucial role of a board in protecting the public. The complexity of this case likely would not have been handled effectively by an umbrella agency. Functioning as a single agency would only dilute and weaken the power to protect the public’s safety.

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.

To me, there appears to be so much wrong here — arrogance, vindictiveness, downright good-ol’-boy idiocy — that it’s hard to know where to begin.

Last April, Vickilyn Galle and Anne Mitchell complained to the Texas Medical Board that Dr. Rolando Arafiles improperly encouraged patients in the hospital emergency department and in the rural health clinic to buy his own herbal “medicines.”

The nurses, who practiced at Winkler County Memorial Hospital in Kermit, also thought it improper for him to attempt to take hospital supplies to perform a procedure at a patient’s home. (The hospital chief of staff stopped him.)

Galle and Mitchell, both in their 50s and longtime members of the American Nurses Association/Texas Nurses Association, went up the chain of command at the 25-bed hospital and got nowhere with their complaints. So they anonymously turned the doctor into the Texas Medical Board, using the medical record numbers of six hospital patients, not their names.

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 industriously interviewed all 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 sheriff narrowed the potential complainants to the two nurses. He got a search warrant to seize their work computers and found a copy of the letter to the medical board on one of them.

The nurses were fired by the hospitals and charged by the district attorney’s office with “misuse of official information,” a third-degree felony that carries a potential of two to 10 years’ imprisonment and a maximum fine of $10,000.

Their lawyers unsuccessfully sought to have the charges dismissed at a pretrial hearing in August. A second pretrial hearing in October resulted in a change of venue from Kermit (population 7,000) to Andrews (population 13,000), the county seat of adjacent Andrews County.

Meanwhile, in August, the nurses filed a civil lawsuit in federal district court against the hospital administrator, sheriff, county and district attorneys and physician (all males) as well as the hospital and the county. They charged violation of their constitutional right to free speech and due process, conspiring to intimidate and threaten the plaintiffs from filing any civil action and for violating the Texas whistleblower law.

The federal court ordered mediation, which took place in December and failed. The nurses’ criminal trial begins Feb. 8.

In a third pretrial hearing last month, the court denied a request by prosecutors to try the nurses separately and reminded the state of its unfulfilled obligation to turn over contact information of its witnesses. Interestingly, a New York Times reporter and photographer were present.

The public outrage needle jerked into the red zone as the nurses got media coverage and widespread support. The Texas Nurses Association created a legal defense fund for the Winkler County nurses (accessible on its Web site), and the first donation was from a staff nurse practicing in New York who wrote out a check for $500 from her personal account.

Since August, more than $40,000 has been donated by 450 individual nurses from 35 states and 25 nurse organizations from eight states.

Galle and Mitchell exercised a basic tenet of the professional nurses’ code of ethics — the duty to advocate for the health and safety of their patients. On Feb. 8, state as well as national attention will be focused on the squat, Depression-era Andrews County courthouse where the nurses will learn their fate.

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.