Nursing Notes

September 19, 2009

Report a bad doctor to the authorities, go to jail? : Respectful Insolence

Here is a blog article that I found that discusses an incident I had intended to put here on my own blog.  However, after reading this article, along with the author’s asides and explanations, as well as the comments; I felt this was the most appropriate way to bring you this information.  Please follow the link at the end and read all of the comments, too.  This situation is untenable and should not be allowed to happen!

Posted on: September 18, 2009 6:00 AM, by OracI just found out via one of the mailing lists I’m on of a very disturbing case in Kermit, Texas.

Two nurses who were dismayed and disturbed by a physician peddling all manner of herbal supplements reported him to the authorities. Now, they are facing jail: 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.)

How can this be? This is how: The nurses Vicki Galle, RN, and Anne Mitchell, RN, say they were just trying to protect patients when they anonymously reported their concerns April 7 to the Texas Medical Board (TMB). The RNs believed a physician wasn’t living up to ethical practice standards at the 15-bed county hospital where they worked. The report indicated Rolando Arafiles, MD, one of three physicians on contract with the hospital, improperly encouraged patients at the Winkler County Memorial Hospital emergency department and the county’s rural health clinic to buy herbal supplements from him. However, because the two nurses worked for a county hospital – and included medical record numbers of the patients in their letter to the TMB in April – the county attorney’s office indicted them on “misuse of official information” – a third-degree felony that carries potential penalties of 2-10 years’ imprisonment and a maximum fine of $10,000. Additionally, the prosecution asserts the nurses used patient records as part of the evidence they offered to the TMB to “harass or annoy” Arafiles.

Part of what’s so disturbing about this is that complaints to the medical board are supposed to be confidential. Indeed, this sort of retaliation is exactly why such complaints are confidential. Why do I say “retaliation”? Well, certainly there is the suspicious timing of how they were arrested: Mitchell and Galle, both long-time nurses at the facility, were fired from their positions and were subsequently arrested June 12, just 5 days past the 60-day window that could have been part of the defense to prove retaliation. The two nurses are free on bond of $5,000 each.

Gee, you don’t think that timing was intentional, do you? If that’s not enough, take a look at this account: 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.

So let’s get this straight. Two nurses, alarmed that a physician was inappropriately peddling herbal remedies that he sells to patients in the emergency room of a small rural hospital in the middle of Bufu, Texas, try to report him through the chain of command. From here on out, I’m going to try to read between the lines a bit, but I bet my speculation is not too far from the truth. My guess is that Dr. Arafiles is probably either popular or desperately needed in Kermit–or both–and that he’s well-connected in the town.

Well, actually, that last part is almost certainly true, as apparently Dr. Arafiles is buddies with the Sheriff (Robert Roberts) and–who knows?–probably Winkler County Attorney Scott Tidwell as well for all we know. The Sheriff, tipped off by his buddy that someone at the hospital was complaining about his questionable choice of venue to peddle his herbal woo, went after Mitchell and Galle as though they had gone on a four county shooting spree and and then, after he figured out who they were, threw the book at them, even though they had no justification in doing so.

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.Excerpts from this letter include: * Information provided by an individual to the board… is information used by the Board in its governmental capacity as a state agency…Information provided triggering a complaint or furthering and investigation by the Board is information provided for a governmental purpose – the regulation of the practice of medicine. * …under federal law, the TMB is exempt from the [HIPAA] requirements; therefore, the provision of medical documentation with patient names on them to the Board is not a violation of [HIPAA].

And it’s true. In order to encourage whistleblowing and minimize the chances of retaliation, HIPAA rules don’t apply to complaints to state medical boards. Regardless of the merit of Mitchell and Galle’s complaint, they were well within their rights to report Dr Arafiles to the Texas Medical Board. It doesn’t matter whether they had first gone through the chain of command or not, regardless of what hospital flunkies or apologists for the sheriff say.

This case is bad. Real bad. Nurses and other health care professionals are reluctant enough as it is to report a bad doctor or a doctor peddling dubious therapies as it is. What makes this case particularly outrageous is not only because it appears to be a horrible abuse of power by Sheriff Roberts, but, even worse, it sends the clear and unmistakable message to nurses in Texas: Don’t get out of line or the medical powers that be will make you pay. They will find out who you are, no matter what it takes to do so, and then they will do everything in their power to retaliate. They’ll even try to throw you in jail if they can figure out a rationale to do so, legal or not. It’s hard enough to go against a doctor as it is, particularly in small towns, where doctors are often considered pillars of the community, making it hard enough to risk the disapproval that would be likely to be directed at any whistleblower. Without legal protections against prosecution for reporting a doctor to the board, confidentiality means nothing if there is someone in a position of power who is determined enough to shred the confidentiality of the complaint (like a county sheriff) and apparently ready to abuse his power to retaliate against the nurses making the complaints.

Even though I’m a bit late to the game, it disgusted me to read about this case. If we are to protect the public from physician misconduct, be it quackery, breaches of ethics, inappropriate sexual behavior, fraud, or whatever, there must be protections for the complainants against retaliation by hospitals or whomever. Quite correctly, the Texas Nurse’s Association is fully backing Mitchell and Galle, and Mitchell and Galle are also filing a civil lawsuit in federal court against the hospital (Winkler County Memorial Hospital), the county attorney, and the sheriff. The complaint alleges: Specifically, Winkler County had a policy to prohibit any adverse report without first getting the approval of the Board of Control of Winkler County Memorial Hospital and the Medical Staff. This discouraged employees from publicly reporting matters of public concern regarding patient safety and patients’ health and welfare as to how they were being treated that would cast Winkler County or Winkler County Memorial Hospital or Rolando G. Arafiles, Jr. in a negative light.

This sort of miscarriage of justice should not be allowed to stand. The Texas Nurses Association has set up a legal defense fund for these nurses, and I urger you all to contribute. I have. I also encourage you to write polite letters of protest to the Winkler County District Attorney’s Office. It is a travesty that this retaliation against nurses just trying to do their duty for their patients has been allowed to continue this long and this far. We should do whatever we can to make sure that this pure power play to put a couple of uppity nurses back in their place does not stand.

Report a bad doctor to the authorities, go to jail? : Respectful Insolence

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1 Comment »

  1. When I was a kid, I was diagnosed with Hashimoto’s by a pediatrician. 5 years later, the pedi died, & the GP my family used took me on since I was 16. He promptly had bloodwork taken and, seeing that my thyroid level was normal on the medication, decided that meant I no longer needed it and had “outgrown” the need for it.

    I’ve always been heavy, but after that med was taken away, the problems with weight control got way, way worse. I went to college, got married; he was in the military. For most of his career, military doctors refused to listen to me, or heed the records from the pediatrician & the test results, or heed the bloodwork that indicated I needed thyroid replacement. It was 20 years later that a Scottish endocrinologist re-discovered the problem & began treatment. By this time, a lifetime of extreme dieting had left my metabolism so badly hosed over that having the hormone on board was little help for weight control. But it did help with a lot of other problems.

    Fast forward to our return to the States and my eventually ending up working at a major urban medical center on the research floor. In comes a 23 year old kid with cardiomyopathy – advanced – all from untreated Hashimoto’s. Thyroid hormone replacement eventually healed most of the damage, but not all of it; at 23, the kid was on things like digitalis, lasix, potassium, and antiarrhythmic meds. I told the research endocrinologist my story. His verdict? It’s a miracle I’m alive and have a healthy heart.

    The GP in my hometown, whom I believe lived on a duck farm, was considered a pillar of the community. Despite questionable weight loss “cures” that he pushed in place of decent medicine, no one dared to complain about him. He eventually opened a weight loss practice exclusively. His trademark phrase for anyone even 5 lb overweight was, “Look at yourself in the mirror when you want to eat. See how ugly you are. It will make you so disgusted with yourself and so sick at the stomach just to look at how awful you look, that you’ll stop eating and lose weight.” By making people hate themselves and overeat from feeling bad, he guaranteed a thriving practice; he essentially ensured most of them would “cheat,” therefore keeping the cash flowing. People got poor trying to lose weight with him. His treatment was that “pregnant urine” extract popular in the late 60s/early 70s. But no one could stop him.

    Doctors have way too much power, especially in small town America. And guess what? Most of the US is Small Town America. Doctors give free medical care to authority figures and their families, do favors for them, and konw that the first time someone talks malpractice lawsuit or reporting someone to the board, that person will end up losing. That’s what this guy did, and no one dared to report him. A couple of his former patients tried; he claimed they were disgruntled because they didn’t lose weight, but they were noncompliant with the diet. The complaint was dismissed.

    I don’t wish people evil, but I sure didn’t cry one tear when I heard he had died. He was nothing more than a thief IMO. He stole money for diets and quack treatments; he stole people’s self esteem; and he likely, if he ignored others’ thyroid levels like he did mine, stole people’s health.

    Doctors have both too much and too little power. Too much to do stupid things like quack cures; yet, if they try to do honest pain treatment as recommended by professional and regulatory agency standards, the DEA’s on their case, trying to prove they’re pushing prescription drugs indiscriminately.

    Comment by nerdse — October 5, 2009 @ 11:35 am | Reply

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