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Star-Telegram.com

Whistle-blower nurse is acquitted in West Texas

Posted Friday, Feb. 12, 2010

By YAMIL BERARD and DARREN BARBEE

yberard@star-telegram.com, dbarbee@star-telegram.com

No crime was committed when a Kermit nurse reported concerns about a doctor to the state medical board, a West Texas jury decided Thursday.

The six-man, six-woman jury deliberated for about one hour before reaching their verdict in the felony case that drew national attention. Afterward, each juror went over to the nurse and hugged her, courtroom observers said.

Texas nurses and association leaders said the verdict was a show of support for Texas nurses as the ones who are on the front lines of patient safety.

"It's wonderful news for us," said Clair Jordan, executive director of the Texas Nurses Association in Austin. Without such a vote of confidence, she said, "there would have been a chilling silencing of a very strong voice for patients."

State regulatory boards for doctors and nurses had both admonished prosecutors for charging nurse Anne Mitchell.

Had Mitchell been found guilty, nurses would have been hesitant to blow the whistle in cases that involved potential harm to patients, said Kathy Thomas, executive director of the Texas Board of Nursing.

The Texas Medical Board had told prosecutors that it was improper to put Mitchell on trial for reporting her concerns.

Mitchell, the compliance officer for Winkler County Memorial Hospital, was charged with misuse of official information after she and Vickilyn Galle, the hospital's quality improvement officer, reported their concerns about Dr. Rolando Arafiles Jr. to the Texas Medical Board last spring. Mitchell reported what she considered a pattern of improper prescribing and surgical procedures. The two women did not sign the letter. But after the medical board contacted Arafiles as part of its investigation, he turned to the Winkler County sheriff, who got a search warrant and seized the nurses' computers.

Sheriff Robert Roberts, a friend of Arafiles', said the nurses circumvented hospital policy for reporting bad medical practices because of what he called a personal vendetta against Arafiles. He also said that the nurses didn't seek patients' permission when they sent medical records of 10 patients to the board. The records did not include the patients' names.

The hospital fired both nurses. Both were indicted, but the case against Galle was dropped before Mitchell went on trial.

Arafiles, who works at the Winkler County Rural Health Clinic in Kermit, did not respond to repeated requests for comment. Scott Tidwell, who prosecuted the case, could not be reached for comment.

Among the issues the defense raised at the trial was the relationship between Arafiles and Roberts. Arafiles testified that he recommended the nutritional supplement called Zrii to patients and that Roberts sold the supplement, according to a television news account. But in a phone interview Thursday, Roberts said that although the doctor introduced him to the supplement-selling program, the two were not in business together and that his friendship with Arafiles in no way tainted his judgment in the case.

Roberts, Winkler County sheriff for 18 years, said he was disappointed with the verdict but knew that the nurse's duty to report would be hard to overcome.

"What was an issue was that we had a public servant who took it upon herself and had a personal objective to circumvent the rules and regulations of the hospital with the intent to send information for a nongovernmental purpose," Roberts said.

He said the nurse didn't like Arafiles from "Day One" after a friend told her he was not a good doctor.

"She just wouldn't accept him," he said.

Many nurses, though, contended that the case was retaliation for Mitchell's blowing the whistle, and nurses nationwide contributed to a legal defense fund.

Laura Fletcher, a nurse and an optometrist in Bedford, said, "It's a travesty of our judicial system that medical professionals are being prosecuted for doing their job according to the law."

Nursing schools throughout the state have been using the case in their course studies with students, reminding them of every nurse's duty to report possible wrongdoing. The Texas code of ethics for nursing and the Texas Nursing Practice Act both say that it's a nurse's duty to report unsafe care, whether it's from a doctor or a pharmacist.

Mitchell and Galle themselves had filed suit in federal court in August, alleging illegal retaliation for patient advocacy activities, as well as civil rights and due process violations. The lawsuit named the hospital, the county, hospital administrator and physician as defendants, and the district attorney, county attorney and sheriff were also targets of the suit.

A judge ordered mediation. But after that resulted in an impasse, action was suspended until Mitchell's criminal case was resolved. The lawsuit will be pursued, the nurses association said.

In Mitchell's felony trial, the prosecution tried to show that she used confidential information to try to harm Arafiles. The medical board, however, told the county and district attorneys that complaints it receives are confidential and that under federal law the board is exempt from patient privacy laws.

The medical board has not made a final determination in its investigation of the nurses' complaint. Arafiles is still practicing medicine, Jordan said.

He had previously come under review by the medical board. State records show that in April 2007 Arafiles was ordered to complete additional continuing medical education in the areas of ethics, medical records and treatment of obesity.

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