Nursing Notes

February 11, 2010

Whistleblower Trial Update Galle’s Case Dismissed; Mitchell’s Trial Proceedings Begin

Here’s another article on the two West Texas nurses facing felony charges.  I know that I keep posting about this but this is a serious precedent and one we nurses should all be following closely.  This article is from Advance for Nurses, which is  a nursing magazine distributed to registered and licensed nurses.  The scope of the damage this incident can cause for nurses is unimaginable.  On the one hand, you will be held accountable to your licensing board for your efforts or lack of efforts to advocate for your patients.  On the other, you can be held legally liable and can be prosecuted for being a patient advocate if in doing so you happen to step on the toes of someone with more power than you.  You will not be protected by the Whistle-blower laws that protect others who come forward with proof of dangerous actions by persons and businesses.

I can see that there may be some type of history between this nurse, Ann Mitchell, and the doctor, Dr. Arafiles.  That may be playing a part in this scenario, but is bad blood a felony?  When this was reported to the Medical Board, was the information taken seriously and investigated by that board?  Did they take any action?  Aren’t there federal laws that prevent doctors from steering patients to some other business in which the doctor has involvement and stands to make monetary gains?

I am still very worried about this outcome and I hope you are too.

________________________________________________________________________________________

By Amy McGuire

Last updated on: February 9, 2010 | Posted on: February 5, 2010

In what may be considered a surprise move, prosecutors filed a motion Feb. 1 to dismiss the criminal case against Vicki Galle, RN, in the Winkler County nurse whistleblower trial. “Prosecutor’s discretion” was the sole reason given for the dismissal.

At press time, the other defendant, Anne Mitchell, RN, continued to face felony charges. Her trial proceedings began on Feb. 8.

Mitchell is being tried by the state for “misusing official information” by allegedly obtaining details as a Winkler County Hospital employee to jointly report, with Galle, what they considered to be sub-standard care provided by hospital physician Rolando Arafiles, MD. They filed the report to the Texas Medical Board April 7. In June, both nurses were indicted on the criminal charge, a third-degree felony that carries potential penalties of 2-10 years’ imprisonment and a maximum fine of $10,000. Mitchell and Galle, both long-time nurses at the hospital, were subsequently fired from their positions.

Nursing Community Responds
The case has brought the attention of both the Texas Nurses Association and the American Nurses Association officials who claim the nurses had a duty to act in the best interests of their patients. The groups are concerned that the case will set a legal precedent regarding nurse whistleblowers, sending a message to healthcare practitioners that there are adverse affects to reporting improper care.

TNA general counsel Jim Willmann, JD, told ADVANCE the dismissal of Galle’s case was a positive step.

“It appears the county attorney finally agreed that Galle’s duty as a nurse required her to report the physician and by doing so, she was fulfilling her duty,” said Willmann, who also serves as TNA director of governmental affairs. “It’s unfortunate that it took him 8 months to make that decision.

Still, Willmann is unsure why the prosecution thinks they can convince a jury that Mitchell acted with bad motives.

“I do not understand why [the prosecution] believes Texas courts would ever hold that a nurse who uses information in fulfilling her or his duty to patients by reporting a physician for substandard care to the Texas Medical Board is committing the crime of ‘misuse of official information,'” he said. “Whether the county attorney has ‘non-legal’ reasons for continuing against Mitchell is open to speculation.”

At the Oct. 21 pretrial hearing, the county attorney described the state’s position: “It doesn’t matter whether the underlying care was good, bad or indifferent. If the motive for reporting was something other than good faith, then they’re guilty of the crime.”

Depending on the state’s case, Willmann believes the nurses’ attorneys may decide to: 1) not put on a defense and call no witnesses because they believe the state has not proved its case beyond a reasonable doubt, 2) put on a limited case and call only the witnesses needed to refute specific evidence put on by the state, or 3) put on a full case.

Federal Civil Suit Mediation Failed
Despite her case’s dismissal, Galle will have a felony indictment on her record, an issue that Willmann called “outrageous.”

“For Galle, it means the state criminal case is over. Unfortunately, the indictment will probably stay on her record. Her federal civil suit against the county, county attorney, hospital, et al. remains alive.”

The court-ordered mediation in the federal civil suit was held Dec. 17, but failed to produce any agreement by the parties, said Willmann.

“Consequently, the federal civil case filed by the nurses will proceed,” he said.

The nurses’ federal suit alleges not only illegal retaliation for patient advocacy activities, but also civil rights and due process violations. The suit names a number of defendants, including Winkler County Memorial Hospital, the hospital administrator, the physician, Winkler County, the district and county attorneys, and the county sheriff.

A change of venue was court-ordered in October to move the criminal trial from Winkler County to Andrews in Andrews County.Willmann told ADVANCE he plans to attend the trial and provide updates on a daily basis through the TNA Web site at www.texasnurses.org/.

Amy McGuire is regional editor at ADVANCE.

Here’s the link to the original posted article

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