The indictment of a former hospital administrator, a hospital physician and two local law enforcement officials in Texas may give healthcare executives and providers even more incentive to let whistle-blowers be.
Texas case elevates issue of protecting those who bring problems to light
They are accused of using the law to retaliate against two nurses involved in reporting a physician to the Texas Medical Board in 2009.
A grand jury in Winkler County, Texas, indicted Stan Wiley, former administrator of Winkler County Memorial Hospital, Kermit, Texas; Dr. Rolando Arafiles, a physician still employed at Winkler County Memorial; Robert Roberts, Winkler County sheriff; and Winkler County Attorney Scott Tidwell. All are accused of retaliation. Arafiles, Roberts and Tidwell also face counts of misuse of official information. The four turned themselves in to the county sheriff's office last week and were freed on bond.
The two nurses at 19-bed Winkler County Memorial—Anne Mitchell and Vickilyn Galle—sent an anonymous letter to the medical board that listed numbers specifying patient records they said supported their claims that Arafiles was endangering patients. After the sheriff uncovered the identities of the nurses, each was charged with a felony count of misusing government information. The charge against Galle was dropped on the eve of the trial in February, a jury acquitted Mitchell and the two sued the county.
Now the criminal action against the men who allegedly orchestrated the case against the nurses, brought by the state attorney general, is commanding attention. “It sends a message to the nursing profession that the state is going to try to protect nurses,” said James Willmann, general counsel and government affairs director for the Texas Nurses Association, Austin. Regardless of whether the criminal cases are won or lost, the fact that the attorney general stepped in should be enough to add more protection for nurse whistle-blowers in the future, Willmann said.
The Winkler County situation, however, did uncover some holes in a Texas whistle-blower protection law already considered to be a strong one. Both the nurses and hospital associations are backing changes to the 2007 law in companion bills in the House and Senate that would boost protections for nurse whistle-blowers. The Texas Medical Association supports good-faith whistle-blower protection and is evaluating the bills to see if it wants to back them, said Donald “Rocky” Wilcox, vice president and general counsel for the TMA.
Officials for the hospital and nurses associations say they are optimistic about the chances for passage given the prominence of the bills' backers in the Senate and House. The House version, H.B. 575, would amend the law to give public employee nurses immunity from retaliation for reporting a problem to an authority other than a law enforcement official. The law currently protects only public employee nurses who report to a law enforcement official, said Elizabeth Sjoberg, associate general counsel for the hospital association. The bill “allows our nurses in public hospitals to have the same rights as our nurses in private hospitals,” Sjoberg said.
Both bills also would extend whistle-blower protections to those who advise nurses of their rights as whistle-blowers. In addition, the allegation that criminal prosecution was wielded to retaliate against the nurses is addressed by the proposed legislation. And the bills raise the limit on whistle-blowing retaliation fines that can be assessed by the state to $25,000. Sjoberg noted that Winkler County Memorial was fined $1,300 for its role in the matter.
The nurses won a joint settlement of $750,000 from the county in a civil suit they filed in U.S. District Court in Pecos, Texas, alleging violations of whistle-blower protections and their constitutional rights to free speech and due process.
One question still unanswered is Arafiles' future as a licensed doctor in the state.
The Texas Medical Board, Austin, launched a formal complaint against Arafiles in June but has not taken disciplinary action. The complaint cites patient-care allegations that include examples of misdiagnosis and mistreatment, such as treating a patient's methicillin-resistant Staphylococcus aureus-infected abscess with an olive oil solution. The complaint also alleges “witness intimidation” related to the nurses' letter and termination by the hospital.
Arafiles could not be reached for comment through Winkler County Memorial.
Bill Neely, the interim administrator for the hospital, said he would not comment on whether Arafiles' arrest would affect his employment at the hospital. Neely, who is affiliated with Preferred Management Corp., Shawnee, Okla., said Arafiles is one of two doctors working there.
Neely said Wiley left the hospital in October or November. Wiley could not be reached for comment.
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