Sunday, February 7, 2010

Texas Threatens Whistleblower Nurse with Jail

Tomorrow nurse Anne Mitchell, formerly compliance officer at Winkler County Memorial Hospital in West Texas, will go on trial for "misuse of official information" in reporting concerns about Dr. Rolando Arafiles to the Texas Medical Board.

The story, reported today in the New York Times, is fascinating and important on several counts. Whatever the truth of her allegations, the charge being brought against her itself appears to be tainted by conflict of interest:
"When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter...

Sheriff Roberts, who has held the post for 18 years, said the state would show that the complaint had been filed in vengeance. 'If it’s made to destroy somebody’s reputation or forcing them to leave town,' he said, 'then I don’t believe it is good faith.'

Sheriff Roberts called Dr. Arafiles 'the most sincerely caring person I have ever met.'"
Ms. Mitchell had reported quality of care concerns about Dr. Arafiles to the Medical Board, including a failed skin graft performed in the emergency room, without surgical privileges, and an unusual intervention - suturing a rubber tip to a patient's crushed finger for protection, for which he was later chastised.

From my reading of the New York Times article I interpret the story this way: Ms. Mitchell and her colleague Vickilyn Galle, the quality improvement officer, against whom charges have been dropped, were concerned about what they saw as a pattern of unsafe practice by Dr. Arafiles. They brought their concerns to the hospital administrator and medical staff but felt that the response was too slow. This led them to write, anonymously, to the Texas Medical Board. The administrator did not defend Dr. Arafiles, but complained that the nurses had acted in bad faith by going behind his back by to the Medical Board. Although between them the two nurses had worked at the hospital for 47 years, held responsible positions, and had never received a negative review, he fired them.

While it could be argued that the nurses should have informed the hospital of what they were intending to do, to give the hospital a final chance to deal with the concerns internally, any health professional with good faith concerns about (a) potentially serious lapses in quality of care that (b) the responsible local authorities are not addressing is (c) ethically obligated to go outside of the organization to (d) bring attention to bear on the situation.

This case does not belong in court. I was happy to learn that counsel for the nurses has brought a countersuit alleging vindictive prosecution and denial of the nurses’ First Amendment rights against the sheriff, the prosecutor, the hospital administrator, and the physician in question.

The filing of the countersuit makes fascinating reading. To me it reads like a slam dunk argument. Unless important new facts emerge that put the situation into a dramatically different light I hope the countersuit continues. It could send a powerful message to all those who contemplate attacking the whistleblowing messenger. The assault initiated by Dr. Arafiles and Sheriff Walker, the prosecutor's decision to initiate a criminal action against nurse Mitchell, and the hospital's decision to fire them, will come back to haunt them.

(For a seminal article about the ethics of medical professionalism by Matt Wynia and colleagues, see here)


Nene said...

Given the locality of the suit, it's not too far fetched to have the "good ol' boy'" mentality there. It's been going on for a very long time.
I think the sheriff should have bowed out (or, bring in another law enforcement party) because he is not enforcing the law in a legitimate way. He's biased, and it's very plainly put from what I read.
Another thing is why would he need to seize computers?
I'm all for what they did. With hospitals and HMO.... still in practice with pharmaceutical companies, they won't act quickly. They'll make sure they don't have a reason to be sued first and foremost.
Would it be as is most cases that so many people would need to die, or gravely injured before someone stepped in? Say...the patient (whom trusts the doctor will do his/her job) who would be gagged by judges during settlements because they can't beat a huge court case?
People have a duty to others in cases lie this.

Jim Sabin said...

Hi Nene -

Thanks for your comment!

I agree that the "good ol' boy" mentality was at work in West Texas, but conflicts of interest come up in every human society, not just in rural Texas. In China they would say that Dr. Arafiles had "good guanxi" in his relationship with the sheriff.

I also agree that the right course for Sheriff Roberts would have been to bow out. This ethical perspective is articulated most clearly in the expectation that judges will recuse themselves from ruling on any case in which "impartiality might reasonably be questioned" or "where he has a personal bias or prejudice concerning a party."

I hope the countersuit (a) comes to trial and that (b) the jury finds against the sheriff and prosecutor followed by (c) an appeal in which (d) the appeals court articulates principles regarding how the public officers should have acted.