It occurred to Anne Mitchell as she was writing the letter that she might lose her job, which is why she chose not to sign it. But it was beyond her conception that she would be indicted and threatened with 10 years in prison for doing what she knew a nurse must: inform state regulators that a doctor at her rural hospital was practicing bad medicine.
But in what may be an unprecedented prosecution, Mrs. Mitchell is scheduled to stand trial in state court for “misuse of official information,” a third-degree felony in Texas.
The prosecutor said he would show that Mrs. Mitchell had a history of making “inflammatory” statements about Dr. Rolando G. Arafiles Jr. and intended to damage his reputation when she reported him last April to the Texas Medical Board, which licenses and disciplines doctors.
Mrs. Mitchell counters that as an administrative nurse, she had a professional obligation to protect patients from what she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.
Charges against a second nurse, Vickilyn Galle, who helped Mrs. Mitchell write the letter, were dismissed at the prosecutor’s discretion last week.
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.
The state and national nurses associations have called the prosecution an outrage and raised $40,000 for the defense. Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws.
Until they were fired without explanation on June 1, Mrs. Mitchell and Mrs. Galle had worked a combined 47 years at Winkler County Memorial Hospital here, most recently as its compliance and quality improvement officers.
The nurses, who are highly regarded even by the administrator who dismissed them, said the case had stained their reputations and drained their savings. With felony charges pending, neither has been able to find work.
It was not long after the public hospital hired Dr. Arafiles in 2008 that the nurses said they began to worry. They sounded internal alarms but felt they were not being heeded by administrators.
Frustrated and fearing for patients, they directed the medical board to six cases “of concern” that were identified by file numbers but not by patient names. The letter also mentioned that Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side.
Mrs. Mitchell typed the letter and mailed it with a separate complaint signed by a third nurse, who wrote that she had resigned because of similar concerns about Dr. Arafiles. That nurse was not charged.
To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles.
The nurses’ lawyers, John H. Cook IV and Brian Carney, have filed a civil lawsuit in federal court charging the county, hospital, sheriff, doctor and prosecutor with vindictive prosecution and denial of the nurses’ First Amendment rights.
Several Texas laws would seem to enshrine a nurse’s right, and perhaps duty, to report a physician when he or she believes that patients are at risk. Lawyers on both sides agree that the case will hinge on whether a jury believes that Mrs. Mitchell reported in good faith. In civil whistle-blower cases, the Supreme Court of Texas has held that good faith requires only a reasonable belief that the conduct being reported is illegal.
The hospital administrator, Stan Wiley, said in an interview that Dr. Arafiles had been reprimanded on several occasions for improprieties in writing prescriptions and performing surgery and had agreed to make changes. Mr. Wiley, who said it was difficult to recruit physicians to remote West Texas, said he knew when he hired Dr. Arafiles that he had a restriction on his license stemming from his supervision of a weight-loss clinic.
In a surprise inspection last September, state investigators found several violations by Dr. Arafiles and concluded that the hospital had discriminated against the nurses by firing them for “reporting in good faith.”
But 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.”
Mr. Wiley said he believed that the nurses had acted in bad faith because they went to the state despite his internal efforts to discipline Dr. Arafiles. But, he said, “I don’t believe they did it on a personal vendetta.”
If you have been subjected to a TMB Inquiry Letter or TMB Disciplinary Process, then please contact the Dallas Texas Medical License Defense Attorney Dr. Shezad Malik. For a no obligation, free case analysis, please call 888-210-9693 or Contact Me Online.
If you have been subjected to a Texas Board of Nursing Inquiry Letter or Texas Board of Nursing Disciplinary Process, then please contact the Dallas Texas Nurse License Defense Attorney Dr. Shezad Malik. For a no obligation, free case analysis, please call 888-210-9693 or Contact Me Online.