Anne Mitchell, Whistle-Blowing Nurse, Is Acquitted in Texas – NYTimes.com

Just a few days ago – somewhat as a Johnny-come-lately it appears, I wrote about a nurse in Texas charged with a crime for reporting a doctor (anonymously) to a medical licensing board.   The nurse, Anne Mitchell, was acquitted today after a 4 day trial.  After digging out from under our second huge snow storm  for most of the day, I finally had a chance to check the news  and here it was – Anne Mitchell, Whistle-Blowing Nurse, Is Acquitted in Texas – NYTimes.com.  And GOOD NEWS it is.  The good people of Texas were able ot come to the right decision in less than an hour.

You may recall the story – Nurse Mitchell filed a complaint with the state medical board after she observed what she believed was unsafe medical practice by a physician at her hospital.  Turns out the doctor had a patient and close friend – the local sheriff.  Next thing Nurse Mitchell knew – she was facing criminal charges.

As we also reported, she and a fellow nurse (who had also been originally charged but against whom charges were dropped prior to trial) have filed a lawsuit against the doctor, the hospital, the prosecutor – anyone and everyone who had anything to do with the absurd prosecution.  That’s apparently going to be the second round- more to come on that one.

The prosecution charged that they had violated the statute by using their positions to obtain and disseminate confidential information, namely patient file numbers, with intent to harm the doctor, Rolando G. Arafiles Jr.

This charge is a third degree felony under Texas law and carries a maximum sentence of 10 years and a $10,000 fine.

Here’ s how the Times reporter, Kevin Sack, presented the arguments of the prosecution and the defense:

The prosecutor, Scott M. Tidwell, the county attorney, argued during the trial that Mrs. Mitchell had waged a vendetta to force Dr. Arafiles from the hospital almost since his arrival in April 2008.

But Mrs. Mitchell’s lawyers presented broad evidence that her concerns about the doctor were well-founded, and that she violated no laws or regulations by alerting the governmental body that licenses and regulates physicians.

The quote by her lawyer after the ‘not guilty’ verdict tells all you need to know if Nurse Mitchell intends to go forward with her civil lawsuit:

“We are glad that this phase of this ordeal has ended and that Anne has been restored to her liberty,” said Mrs. Mitchell’s lawyer, John H. Cook IV. “But there was great damage done in this case, and this does not make them whole.”

Good for her!  If you think going through a criminal prosecution with possible jail time and a fine is not ‘an ordeal’ – try it some time.  We’ll try to keep up on this story to let you know what happens with this civil lawsuit – why do I think I hear the word  “settlement”  – maybe because that’s what those who are liable for this fiasco should do if they have any common sense (which is debatable).

Healthcare providers, who are concerned about patient safety, should not be silenced by the threat of prosecution when they take steps to correct what they perceive to be a lack of quality care.  Nurse Mitchell should have been applauded for her action, not prosecuted.  At least this evening – she can rest comfortably – and get ready for Round Two – hope she knocks them out!

Nurse who reported doctor to disciplinary board faces criminal charges in Texas

This just in from a report in the American Bar Association’s Law News Now – Prosecutors in Texas have charged a nurse, Anne Mitchell, with a third degree felony (which carries a 10 year prison sentence) for ‘misuse of official information’ when she anonymously reported a doctor for various acts, which she deemed dangerous to the patients he was treating.

The prosecution maintains that Mitchell had a history of making “inflammatory” statements about Dr. Rolando G. Arafiles Jr. and that her goal was to damage his reputation when she reported the doctor to the state licensing and disciplinary board.

Mitchell, however, believed she had an obligation to protect patients from what she saw as a pattern of improper prescribing and surgical procedures. Among her complaints was that Arafiles performed a failed skin graft in an emergency room, where he didn’t have surgical privileges, the Times reports. Another complaint—that the doctor sutured a rubber tip to a patient’s crushed finger for protection—was reportedly later deemed inappropriate by the Texas Department of State Health Services.

Bad blood or just bad medicine?  Regardless – does Texas really believe they are serving some public interest by charging this nurse with a felony?   Does this really send the right message to the medical personnel in our health institutions when they observe what they believe to be poor care and violations of patient safety?

This will be a most interesting matter to follow as well as the civil action being brought by Nurse Mitchell and a fellow nurse, Vickilyn Galle, who assisted Nurse Mitchell in writing the letter (charges were dropped against Galle last week), for violations of their rights to free speech and due process.  This civil action by the nurses is being brought against the doctor, the hospital, the sheriff and prosecutors

One other sidebar note: Dr. Arafiles apparently complained about this letter to his friend and patient, the Winkler County sheriff.

The New York Times in reporting on this fiasco, reports:

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.

According to the Times report, nursing associations – both national and state, have risen up in defense of what they called outrageous charges.  These organizations have raised $40,000 for the defense of these charges.

Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws.

“To me, this is completely over the top,” said Louis A. Clark, president of the Government Accountability Project, a group that promotes the defense of whistle-blowers. “It seems really, really unique.”

See what you get for trying to hold people accountable for what you believe is bad medical care and for placing patient’s health and safety at risk?  Hmmm…. sounds like lawyers representing plaintiffs in medical malpractice cases aren’t the only ones facing criticism (and now criminal charges) these days.

Good luck, Nurse Mitchell.  Give ’em hell!

Public beware: disciplined nurses crossing state lines to practice anew.

A recent report posted on ProPublica tells a shocking and scary tale of how some nurses, disciplined in one state, have taken up new jobs as licensed nurses in a different jurisdiction.  This story was brought to light by the combined investigative efforts of Charles Ornstein and Tracy Weber of ProPublica and Maloy Moore of the Los Angeles Times on December 27, 2009.

According to this report, there exists a “dangerous gap” in the way states regulate nurses.  As an example of just how serious a problem this may be, the reporters found that in California alone, a months-long review of the 350,000 registered nurses in that state revealed that there were at least 177 nurses, whose licenses had been revoked, suspended, surrendered or denied elsewhere.

The online article gives the following example (among a number they discovered):

In May 2005, a 3 year old boy, Jexier Otero-Cardona, died while under the care of a home health nurse, Orphia Wilson. The child suffered from chronic respiratory failure and muscular dystrophy.  Early one morning, Nurse Wilson frantically summoned the child’s parents for assistance when the child stopped breathing.  After heroic efforts at CPR by his mother, the child died the  next day at a hospital in Connecticut.

This was not the first child to die under Nurse Wilson’s care, the state’s investigation revealed.  Just seven months before, Nurse Wilson had lost her Florida license due to apparent lapses in the care of another child in that state in 2002.

In the months of investigation by Connecticut officials that followed Jexier’s death, it was determined that Wilson “had fallen asleep, then ignored – or possibly turned-off – the ventilator alarms that were intended to warn when the child was not getting enough oxygen.”

The following quote from the article tells the tragic story of a failed system of regulating the licensure of nursing in our country:

“Florida officials, for instance, didn’t notify Connecticut authorities when they sanctioned Wilson – even though she’d told them that she also held a Connecticut license. And Connecticut’s nursing board renewed Wilson’s license three times after Thierry’s death, relying on her pledge that she hadn’t been disciplined or investigated elsewhere.”

The reporters identify several key failures in our country’s system of regulating the licensing of nurses.  First, they note that in some instances some states do not do a simple check of a national database, which can within seconds reveal (if the data  has been timely and accurately supplied) that a nurse has been disciplined elsewhere.  This has dire implications in many hospitals and health care employers rely on state nursing boards to verify a nurse’s licensure status and fitness to practice.  Secondly, they tell a tale of how long a disciplinary process may take and how long the reporting of that finding will occur, if ever.  The tale of horrors goes on and on.

Just a bit of digging (much more to come!) into the background of this issue reveals that The Medicare and Medicaid Patient and Program Protection Act of 1987 led to the creation of the National Practitioner Data Bank (NPDB), which was a tracking system designed to protect program beneficiaries from ‘unfit’ health care practitioners.  The NPDB was implemented in the fall of 1990 and required reporting of adverse licensure, hospital privilege and professional society actions relating to quality of care by physicians and dentists. According to one source, proposed rules adding other practitioners, including nurses, were published in March 2007.

Query:  does anyone know if those “proposed rules” were ever made into final rules?

The full scope of the legislative history, the awarding of three grants to the National Council of State Boards of Nursing by Robert Wood Johnson Foundation (RWJF) in excess of $1,000,000 between 1990 and 1997, the commendable activities of the National Council of State Boards of Nursing over many years to get better control and surveillance of licensure and ‘fitness’ to practice for nurses are all topics well beyond the scope of this blog.

Research is underway by our firm to determine the current status of federal legislation in this area as well as a myriad of other related topics – for example, what states boards of nursing do not yet have an agreement with the National Council?  What are the current requirements for timely reporting of adverse actions against nurses?  What legislation, if any, is pending to address this situation?  What other sad stories like that reported by these investigative writers are out there?

All the hard work to establish reporting guidelines and a national network for avoidance of these types of tragedies can not go for naught due to provincial and/or political interests that can result in serious harm to the public.

If you have any information about the current status of legislation or stories like that reported by ProPublica and others, let us know.