Outrageous Whistleblower Prosecution Fails:
Perpetrators Severely Punished

Stephen Barrett, M.D.

An attempt to prosecute two nurses who complained that a doctor was trying to sell herbal products to his hospital clinic patients has failed. In a bizarre case that has drawn national attention, Anne Mitchell and Vickilyn Galle were charged with "misuse of official information," which is a third-degree felony under Texas law.

Winkler County Memorial Hospital is a 25-bed, government-owned hospital in Kermit, Texas. Mitchell who began working at the hospital in 1986, and was the hospital's compliance officer and worked as utilization management backup. Galle, who began working at the hospital in 1987, was in charge of quality improvement, and utilization management. The pair also shared the job of medical staff coordinator.

The situation arose after Mitchell and Galle learned that Rolando G. Arafiles, Jr., M.D., who worked part-time in a hospital clinic, was e-mailing patients he had seen to encourage them to buy herbal products that he sold. In April 2009, after the hospital board of control had failed to act on complaints made by two staff physicians, Mitchell and Galle contacted the Texas Medical Board. Following these conversations, they sent a written complaint asking the board to investigate Arafiles's care of five patients whom they identified only by case number [1]. The complaint were sent anonymously because they feared that the hospital would retaliate if they identified themselves.

In April 2009, the Board notified Arafiles that had received a complaint about his care of several patients and asked him to provide copies of their medical records. After receiving the notice, Arafiles complained to the local sheriff alleging that he was being harassed. Because he was conducting a criminal investigation, the sheriff was able to ask the board for a copy of the report made against Arafiles. The report indicated that the person making the complaint was a female registered nurse, over 50 years old who had worked at the hospital for over 20 years—a description that fit both Mitchell and Galle. The sheriff used this description to identify Mitchell and Galle. He then obtained a search warrant to seize their work computers and found a copy of the letter to the TMB on one of them. The pair were not indicted for harassment, however, but for "misuse of government information."

The American Nurses Association and Texas Nurses Association (TNA) were outraged about the prosecution. In a news release, TNA executive director Clair B. Jordan, MSN stated that no nurse should be penalized for advocating for patient safety [2]. TNA has established a legal defense fund with a goal of raising at least $10,000. In a detailed report about the case, the TNA stated:

Q. How could this happen? I thought nurses had whistle blower protections.

A. They do. . . . Whistleblower laws provide remedies for individuals who are retaliated against for protected activities. Patient advocacy, specifically reporting concerns about a practitioner’s standard of care, is protected under Texas laws. These include the Nursing Practice Act, the Medical Practice Act for anyone reporting a physician to the Texas Medical Board, the hospital licensing law for all hospital employees, and the Government Code for public employees. However, nothing in current Texas law, or laws in any other state (to Texas Nurses Association’s knowledge), prohibits a local prosecutor from pursuing criminal action as the Winkler County District Attorney has done in this case. It may be an abuse of prosecutorial discretion, and the nurses may ultimately have an action (lawsuit) for malicious prosecution, but no one anticipated the need to try to limit the discretion of local prosecutors. No one ever imagined that a nurse would be criminally prosecuted for reporting a patient care concern to a licensing agency [3].

The Texas Medical Board told the prosecutors that it is improper to criminally prosecute people for raising complaints with the Texas Medical Board; that the complaints were confidential and not subject to subpoena; and that under federal law the Texas Medical Board is exempt from Health Insurance Portability and Accountability Act (HIPAA) requirements, so there was no violation of any HIPAA laws [4].

In August 2009, Mitchell and Galle filed suit in federal court alleging not only illegal retaliation for patient advocacy activities, but also civil rights and due process violations. The lawsuit named not only the hospital, but also the county, hospital administrator, and Arafiles as defendants. Additionally, because the nurses claimed violation of their civil rights, the suit also included the district attorney, county attorney, and sheriff. The complaint also stated that Arafiles was the sheriff's doctor and that they were associates in the herbal business [5].

Arafiles has had prior discipline by the Texas board. In 2007, he entered into an agreed order requiring him to pay an administrative penalty of $1,000 and complete continuing medical education courses in the areas of ethics, medical records, and treatment of obesity. The order also prohibited him from supervising physician assistants or advanced nurse practitioners. The action was based on allegations that Arafiles failed to adequately supervise a physician assistant at a weight-loss clinic where he worked, and failed to make an independent medical professional decision about the protocol developed by clinic's owner [6].

In January 2010, the prosecutor dropped the charges against Galle with no public explanation. In February 2010, after a 4-day trial, a jury took just one hour to acquit Mitchell. The New York Times reported that the jury voted unanimously for acquittal on the first ballot [7]. In August 2010, Winkler Hospital settled its part of the civil suit for $750,000 [8] and paid a $7,500 fine imposed by the Texas Department of State Health Services for inadequately supervising Arafiles and firing Mitchell and Galle [9].

In June 2010, the Texas Medical Board charged Arafiles with witness intimidation in addition to improperly treating nine patients [10]. A Winkler County grand jury subsequently indicted him [11], former Winkler County Memorial Hospital administrator Stan Wiley, Sheriff Robert Roberts, and County Attorney Tidwell for retaliation and misuse of official information. In March 2011, Wiley pleaded guilty to abuse of official capacity and was sentenced to 30 days in jail. Wiley's plea agreement includes a pledge to cooperate with prosecution of the other three [12]. In June 2011, Sheriff Roberts was convicted and was sentenced to spend 100 days in jail, pay a $6,000 fine, and serve four years of probation. The conviction means he will automatically be removed as Winkler County Sheriff and must surrender his peace officer's license. Also in June, Arafiles was charged with aggravated perjury for lying at Michell's trial. When asked how Roberts had obtained the names and contact information of patients who had complained about Arafiles to the Texas Medical Board, Arafiles said he didn't know even though he had given Roberts the information [13]. In October 2011, Tidwell was convicted In November 2011, but is appealing his conviction. Arafiles pleaded guilty to one count each of misuse of official information and retaliation and was sentenced to 60 days in jail and ordered to pay a $5,000 fine. He also surrendered his medical license [14].

References

  1. Complaint to Texas Medical Board, April 7, 2009.
  2. American Nurses Association and Texas Nurses Association speak out against wrongful prosecution of Winkler County Nurses. ANA news release, July 16, 2009.
  3. Fighting back! Winkler County Nurses file lawsuit in federal court. Texas Nurses Association Web site, accessed Sept. 15, 2009.
  4. Robinson M. Letter to Mike Fostel and Scott Tidwell, June 17, 2009.
  5. Plaintiff's original complaint. Mitchell and Galle vs. Winkler County et al. U.S. District Court for the Western District of Texas, Pecos Division. Filed Aug 28, 2009.
  6. Agreed order. In the matter of Rolando German Arafiles, Jr., M.D. Before the Texas Medical Board. Feb 16, 2007.
  7. Sack K. Whistle-blowing nurse is acquitted in Texas. The New York Times, Feb 11, 2010.
  8. Sack K. Texas nurses fired for alleging misconduct settle their suit. The New York Times, Aug 10, 2010.
  9. Barbee D. Winkler County hospital pays fine for violations cited by Texas Department of State Health Services. Fort Worth Star-Telegram, Aug 28, 2010.
  10. Complaint. In the matter of Rolando German Arafiles, M.D. Before the Texas Medical Board. June 22, 2010.
  11. Warrant of arrest for Dr. Rolando Arafiles. Dec 21, 2010.
  12. Former Winkler County hospital administrator pleads guilty, must serve jail time. News release, Texas Attorney General, March 21, 2011.
  13. Indictment. Rolando Arafiles, June 30, 2011.
  14. Former Winkler County Memorial Hospital physician sentenced for scheme to fire nurses In 2009. Texas Attorney General news release, Nov 7, 2011.

This article was revised on November 11, 2011