Two Texas nurses are set to go to trial soon on criminal charges brought against them for anonymously reporting concerns about a physician to the state’s medical board.
Lone Star State showdown
Trial looms for nurses who reported concerns about doctor
The legal predicament of Vickilyn Galle and Anne Mitchell gained national notoriety after they were indicted last June. Both were nurses at 15-bed Winkler County Memorial Hospital in Kermit for more than 20 years. They could go to prison if convicted after a jury trial that begins Feb. 8 (July 27, 2009, p. 18).
In the meantime, the Winkler County district attorney offered to drop the charges if Mitchell and Galle would agree not to sue over the matter. The nurses, however, filed a federal lawsuit against the hospital, the doctor, the sheriff, the district attorney and the county attorney. All of them, the nurses allege, violated whistle-blower protections and the nurses’ rights to free speech and due process. Court-ordered mediation in December 2009 failed to produce a resolution to the lawsuit.
Nurses across Texas and beyond have rallied around Mitchell and Galle. “You could localize it and say it really is a function of a small town,” said Alice Bodley, general counsel for the American Nurses Association. But, she added, “If that can happen anywhere in the country, I think it’s a terrible thing for the profession and patient safety. It’s more than symbolic. If they are found guilty of these alleged crimes, it could have a chilling effect.”
The Texas Nurses Association and the ANA have raised more than $20,000 toward the nurses’ defense, with donations coming from hundreds of organizations and individuals in 36 states.
“The attention seems a little odd to me,” said County Attorney Scott Tidwell, who is prosecuting the case for the district attorney and said he recently got a call from a network TV news producer who asked him why he would pursue the case all the way to trial. “It’s just like any other criminal case.”
Tidwell intends to argue at trial that the nurses made the complaint in bad faith, motivated by a personal vendetta rather than concern for the well-being of their patients. The specific charge is that the nurses misused government information, a reference to several medical-record numbers included in their complaint letter to the Texas Medical Board to support the claims regarding the physician. The nurses alleged he was given staff privileges in spite of a restriction on his license and had a penchant for applying and recommending herbal medications that weren’t on the hospital’s formulary.
During pretrial hearings though, Tidwell argued that the medical records themselves and any evidence about the quality of care provided—good or bad—are irrelevant to the case. “This isn’t a medical malpractice trial; this is a simple little criminal statute trial,” Tidwell said, explaining the position. “Can you imagine a hypothetical situation where someone might get mad at a medical professional or a lawyer or anyone regulated by a board, and in order to get even they file a complaint that’s not done for the purposes of reporting bad conduct but for the purpose of getting even?”
James Willmann, general counsel for the Texas Nurses Association, said the organization is troubled by that theory. “If that’s in fact the law, then no public employee is safe,” Willmann said. “The only thing the state has to allege is, ‘Well, you acted in bad faith,’ and then they don’t have to show anything until six or nine months later. That’s frightening.”
The judge moved the trial to neighboring Andrews County from Kermit, a town of about 5,000 near the border with the southeast corner of New Mexico. The decision to change the venue was made in the judge’s chambers, though Willmann said he assumes it was made because too many people in the small community have taken sides, trading vitriol in online forums.
The Texas Medical Board has not taken any disciplinary action based on the complaint from Galle and Mitchell. Executive Director Mari Robinson said she was not at liberty to say whether the investigation remains open, or even to acknowledge the existence of the complaint, which is privileged under state statute.
The board is concerned, however, with the prosecution and its potential to discourage future complaints. “The only way we know something is going wrong is if someone reports it to us,” Robinson said.
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