NOT GUILTY – TEXAS JURY ACQUITS WINKLER COUNTY NURSE
February 11, 2010
Andrews, Texas – It took the jury less than an hour to return a not guilty verdict this morning for Anne Mitchell, RN, defendant in the criminal trial that has come to be known as the “Winkler County nurses” trial. Mitchell faced a third-degree felony charge in Texas of “misuse of official information,” for reporting a physician to the Texas Medical Board for what she believed was unsafe patient care. Mitchell is a member of the Texas Nurses Association (TNA) and the American Nurses Association (ANA).
“We are very pleased about the not guilty verdict and that justice prevailed for Anne Mitchell,” stated Susy Sportsman, PhD, RN, president of TNA. “If anything was to be gained from the absurdity of this criminal trial, it is the reaffirmation that a nurse’s duty to advocate for the health and safety of patients supersedes all else.”
Since news of the criminal indictment – and Mitchell’s being fired from her hospital job – first spread through the nursing community, nurses across the country have followed developments. Labeling the criminal indictments “outrageous,” an outpouring of support – and financial contributions to the TNA Legal Defense Fund – has continued.
As the nation’s largest nursing association, ANA joined forces with TNA, one of its constituent member associations, in July of 2009 to strongly criticize and raise the alarm about the criminal charges and the fact that the results from this case could have a lasting and negative impact on future nurse whistle blowers.
“ANA is relieved and satisfied that Anne Mitchell (RN) was vindicated and found not guilty on these outrageous criminal charges – today’s verdict is a resounding win on behalf of patient safety in the U.S. Nurses play a critical, duty-bound role in acting as patient safety watch guards in our nation’s health care system. The message the jury sent is clear: the freedom for nurses to report a physician’s unsafe medical practices is non-negotiable,” said ANA President Rebecca M. Patton, RN, MSN, CNOR. “However, ANA remains shocked and deeply disappointed that this sort of blatant retaliation was allowed to take place and reach the trial stage – a different outcome could have endangered patient safety across the U.S., having a potential ‘chilling effect’ that would make nurses think twice before reporting shoddy medical practice. Nurse whistle blowers should never be fired and criminally charged for reporting questionable medical care.”
“I was just doing my job,” relayed a jubilant Anne Mitchell, in a phone conversation with TNA immediately following the not guilty verdict, “but no one should have to go through this,” she said. “I would say to every nurse, if you witness bad care, you have a duty to your patient to report it, no matter the personal ramifications. This whole ordeal was really about patient care.”
Over $45,000 has been donated so far by individuals and organizations across the country to the TNA Legal Defense Fund as a way to support the defense of Anne Mitchell and former co-defendant Vicki Galle.
“We didn’t have any support – emotional or financial – until TNA and ANA stepped in,” said Vicki Galle, RN, who also attended the trial in Andrews even though the prosecution had dismissed her indictment on February 1 as a co-defendant. “We could never have gotten through this without nursing’s support.”
TNA Attorney Reports from Andrews
Thursday, February 11, 2010
The State and the Defense have put on their cases and rested. This morning, Anne’s attorney has finished her defense.
The State had to prove five elements to prove Anne misused official information: 1) Anne was a public servant (all public employees are), 2) she had access to information because of her employment, 3) that information not public, 4) Anne used the information with the intent to harm another, 5) the information was used for a nongovernmental purpose. The State’s evidence focused on the last two elements because the prosecutor told the jury that those were the two most in dispute. The State’s main evidence consisted of several witnesses who testified about two to three occasions on which they heard Anne make statements such as “Dr. Arafiles will be gone in a year” “he is not a doctor” “he is a witch doctor.” There was also testimony of an ongoing conflict between Anne and Dr. Arafiles. She had refused to sign off on his original credentialing because hospital bylaws required physicians to have unrestricted license. The State also focused on the need to follow the chain of command. In cross examination, Anne’s attorney was able to get in good information about substandard care by Dr. Arafiles on cases Anne reported to Texas Medical Board (TMB). The Defense showed that most of the witnesses who testified about Anne’s motives had only been contacted within the past couple of weeks and not before Anne was indicted.
On Wednesday, Anne’s attorneys began her defense and called several witnesses to testify. The first was a nurse practitioner who had worked at the Winkler County Rural Health Clinic and left because of her concerns that issues relating to the care provided by Dr. Arafiles had not been addressed. She had also filed a complaint against Dr. Arafiles with the TMB at the same time as Anne and Vicki (all worked together). The NP testified that she has subsequently filed a second complaint. She testified that Anne was motivated only by her concern for patients. The second witness was an LVN, who testified about her concerns regarding Dr. Arafiles’ work at the clinic. She also left because of those concerns and the stress they were causing her. The Defense called the Winkler County judge (not the trial judge) testified that she knew Anne and Anne had discussed her concerns about Dr. Arafiles. The judge said Anne’s motive was patient concern. Lolly Lockhart, RN, testified as an expert witness on a nurse’s duty. Dr. Pham, Chief of Staff at Winkler County Memorial Hospital, testified about concerns about Dr. Arafiles’ care. He also testified that Anne was concerned about patient care and that Anne is a good nurse.
Thursday morning, the defense called a medical expert, who testified that he had reviewed the five cases cited in the complaint to TMB and found substandard care. The Defense has rested. Next, the charge will be read to the jury, the Prosecution and Defense will give their closing arguments, and the jury will begin deliberation.
The case is no less perplexing as to why Anne was indicted. All witnesses (even the State’s) have agreed nurses have a duty to report unsafe care.
Update: 5:45 p.m., Wednesday, February 10, 2010
Andrews, Tex. Courthouse - Court has recessed after what was Day 3 of the Winkler County RN trial. Judge Rex denied an earlier defense attorney’s motion for a directed verdict. The defense started presenting its case this afternoon and called a number of character witnesses for Anne Mitchell, RN. Trial resumes tomorrow morning. Closing arguments might be heard at day’s end.
Update: 3:10 p.m., Wednesday, February 10, 2010
Andrews, Tex. Courthouse - State prosecutors rested their case against Anne Mitchell. The court is in a recess. When it reconvenes, Defense Attorney Cook is to file a motion for a directed verdict that the state failed to prove every element of its case beyond a reasonable doubt. More updates to follow.
Update: Wednesday, February 10
Andrews, Tex. Courthouse - On the stand this morning, the nurse’s defense attorney, John Cook, continued the cross-examination of Sheriff Robert Roberts of Winkler County. Defense wanted to know: what was confidential about the nurses’ complaint? That’s still unclear.
And, it seems, there was yet a second complaint filed against the physician. The sheriff admitted that he didn’t check with the Texas Medical Board, said he didn’t know which complaint was the first and which was the second. The second complaint was filed by a nurse who was never indicted. Sheriff said he didn’t do any investigation of whether the complaints the nurses made were true.
When the defense attorney asked if the sheriff had ever arrested someone simply because that person gave him information about a possible crime, the sheriff answered, “yes.” The defense attorney rephrased the question and asked it again. Still the sheriff answered, “yes.” The courtroom laughed. The judge then admonished that their laughter was inappropriate behavior and he will have them removed if the laughter continues.
Court is now recessed for lunch. When trial continues this afternoon, the next witness is the nurse who replaced Vicki Galle in the performance improvement position at Winkler County Memorial Hospital.
More updates to follow.
Message to all supporters
Monday, February 8, 2010
It’s 9:30 a.m. in the courtroom in Andrews, Tex. A jury panel for the “Winkler County nurses trial” is being briefed on what to expect from the day’s proceedings. The selection of 12 jurors is about to begin. Earlier this morning, John H. Cook IV, defense attorney for Anne Mitchell, RN, sent the following message:
“Anne and I would like to thank all of you who have supported us through this battle to protect patients. Please keep her in your prayers this week. She has already sacrificed so much to fulfill her moral, ethical and legal duties as a patient advocate. She must now endure a criminal trial to restore her liberty.
She is a woman of courage who reflects highly on the nursing profession. I am honored to stand beside her as she faces her accusers. We have complete faith in the jury system and are confident the truth will come out and justice will be done.
Thank you again for all your support. I cannot fully express how deeply we appreciate all you have done for us.”
John H. Cook IV
Attorney for Anne Mitchell
Message from TNA President Susy Sportsman
Friday, February 5, 2010
It’s startling to think that events yet to unfold next week in a court room, in a small, rural West Texas town of a few thousand residents have the potential to affect the future of patient safety across the entire country. As many know, the criminal trial of Anne Mitchell, RN – the remaining defendant in what’s now notoriously referred to as the “Winkler County nurses” trial – is scheduled to begin Monday morning, February 8, in Andrews, Tex.
This trial is monumental for nursing and certainly worthy of scrutiny by every Texas citizen. Its outcome could curtail a nurse’s willingness to report patient safety concerns even though a nurse’s duty to report is clearly identified in the Code of Ethics for Nurses and the Texas Nursing Practice Act. And even though Texas law provides nurses with protections from retaliation and remedies should it occur -- for instances such as the Winkler County attorney’s “prosecutorial discretion” to file criminal charges against a nurse reporting patient safety concerns no matter the nurse's motive – it still jeopardizes a nurse’s ability to fulfill their duty to patient because it can create fear of retaliation. If that happens, it is ultimately the patient who is put in harm’s way.
Starting Monday, the outcome of this criminal trial will be placed in the hands of 12 jurors from Andrews County, Tex. I want to take this opportunity to thank all nurses – and other individuals and organizations from across the country – for the help and support extended Anne Mitchell and Vicki Galle. These supporters clearly understand what’s at stake if nurses’ voices are silenced – if their duty to patient is diminished.
I also want to encourage every nurse to be attentive to the events unfolding in the Andrews courtroom. Texas Nurses Association will continue to post updates on its website. Twitter followers can also join the conversation @TexasNursesAssn, #WinklerRNs.
Criminal Case Against Galle Dismissed
February 1, 2010
In a surprise move, prosecutors dismissed the criminal case against Vicki Galle, RN, co-defendant in what’s become the notorious “Winkler County nurses” trial. With the trial set to begin Monday, Feb. 8 in Andrews with jury selection and opening arguments, only one defendant – Anne Mitchell, RN – remains to be tried in the criminal case that nurses across the country are following with intense interest.
“It appears the county attorney finally agreed that Vicki Galle’s duty as a nurse required her to report the physician and by doing so, that she was fulfilling her duty,” said Jim Willmann, general counsel for Texas Nurses Association. “It’s unfortunate,” Willmann said, “that it took him eight months to make that decision. Despite the dismissal, Vicki Galle will have a felony indictment on her record – simply because she fulfilled her duty as a nurse. It’s outrageous but not nearly as outrageous as the county attorney’s continuing refusal to also dismiss the case against Anne Mitchell,” he summarized.
A court ordered change of venue has moved the criminal trial of the “Winkler County” nurses to Andrews, a city in and the county seat of Andrews County which is a Texas county adjacent to and north of Winkler County. The trial of nurses Anne Mitchell and Vicki Galle is scheduled to begin Monday, February 8, 2010 with jury selection.
The court-ordered mediation in the federal civil suit was held as scheduled on December 17, but failed to produce any agreement by the parties. Consequently, both the federal civil case filed by the nurses and the state criminal case against the nurses will proceed. The next significant event is expected to be the trial in the criminal case which the court has set for February 8, 2010.
Court-ordered mediation of the federal civil lawsuit filed last August by attorneys for registered nurses Vicki Galle and Anne Mitchell, is scheduled for December 17, 2009 in Midland. The nurses’ federal suit alleges not only illegal retaliation for patient advocacy activities but also civil rights and due process violations. It names a number of defendants including the Winkler County Memorial Hospital, the hospital administrator, the physician, Winkler County, Texas, the district and county attorneys, and the sheriff.
An order to mediation does not mean the parties must reach agreement on resolving the suit; it only means they must try. Use of a mediator improves the chance an agreement can be reached. Further updates will follow.
An initial disbursement of $20,000 has been made by the TNA Legal Defense Fund toward the defense expenses incurred by registered nurses Vicki Galle and Anne Mitchell in the criminal case pending against them in Winkler County. The nurses were criminally indicted for reporting a physician to the Texas Medical Board over concerns that his practice was below acceptable standards of care.
Texas Nurses Association established the TNA Legal Defense Fund as a way to support the legal rights of practicing nurses in advocating for their patients. The $20,000 disbursement is twice as much as TNA’s original goal of dedicating the first $10,000 in donations to assist the nurses in Winkler County with TNA matching every $1 of the first $5,000 collected.
“Patient advocacy is at the heart of nursing practice,” said Cindy Zolnierek, MSN, RN, director of practice for TNA. “It’s absurd that the nurses in Winkler County would be criminally indicted for advocating for safe patient care. I hope Vicki and Anne continue to be encouraged by the level of support and generous donations of nurses across the country who are helping defend a nurse’s right to speak out for patients,” she said.
Upon being notified of the distribution, RN Mitchell responded:
“Thank you so much for all the help with our case. It’s hard to believe that we are in this situation, but hopefully it will change things for the better in nursing and health care. I am amazed and thankful for all the support from all the organizations and individuals. There are silver linings in everything, I suppose.”
To date, 23 organizations and 438 individuals from 36 states have contributed to the TNA Legal Defense Fund. With the criminal trial date set for February 8, 2010, donations continue to be accepted. Please contribute to the TNA Legal Defense Fund at the link above.
Three More Pre-trial Motions Heard in Winkler County Court
October 21, 2009
A second, pre-trial hearing was held Wednesday, October 21, in the Winkler County nurses case to hear motions before the court related to criminal charges against the nurses for misuse of information. Three motions by defense attorneys were heard by District Judge James L. Rex:
a motion to suppress certain evidence which the court had previously denied
a motion for change of venue
a motion for attorneys to have access to patient records so their medical experts could determine if the nurses’ concern about substandard care by the physician was reasonable.
The Texas Department of State Health Services (DSHS) surveyed the Winkler County Memorial Hospital in response to a complaint filed by Texas Nurses Association against the hospital for its policy prohibiting nurses from reporting to outside regulatory agencies and for terminating the two nurses for reporting a physician to the Texas Medical Board. DSHS concluded that the two nurses had reported the physician in good faith and that the hospital had retaliated against them for reporting the physician.
The motion to reconsider suppressing evidence was based on the DSHS report, which has been entered into evidence. The court did not rule on this motion.
Attorneys for the nurses implied that the court indicated that motions for a change of venue and access to medical records would be granted.
While the court’s favorable action on the two motions was good news, it remains unfortunate that this case has not been dismissed and appears headed for trial. The case is not expected to go to trial until December or January.
Fighting Back! Winkler County Nurses File Lawsuit in Federal Court
August 28, 2009
On Friday, August 28, attorneys for Vicki Galle and Anne Mitchell filed suit in federal court alleging not only illegal retaliation for patient advocacy activities, but also civil rights and due process violations. The lawsuit names not only the hospital, but also the county, hospital administrator, and physician as defendants. Additionally, because the nurses claim violation of their civil rights, the district attorney, county attorney, and sheriff.
Fortunately, Texas has a number of laws that protect nurses who advocate for their patients. The nurses’ complaint states their termination and criminal indictment was illegal retaliation in violation of the Nursing Practice Act, Board of Nursing Rules, and several other Texas laws:
Health and Safety code provisions prohibiting retaliation for reporting patient care concerns
Medical Practice Act provision that prohibit retaliation for reporting to the medical board
In news from Kermit, TX, the nurses’ two motions to suppress evidence on the basis the search warrant was illegal were both denied by District Judge James L. Rex in the Winkler County criminal case against the two nurses. Two other motions by defense attorneys were left pending, one of which is a motion to dismiss the indictment for prosecutorial vindictiveness.
Both sides in the case await final rulings by the judge on the two remaining motions. If the judge grants the motion to dismiss, the case is over. If he denies that motion, the case will proceed to trial. Because of all the publicity surrounding the case, moving the trial to another city in Texas is a possibility.
In the month since it was established, the TNA Legal Defense Fund reached its initial goal, and kept going. The mid-July-breaking story of two nurses criminally indicted in Winkler County, Texas for misuse of official information in advocating for patients, struck a chord with nurses across the country who sent donations to help with their legal defense. The breakdown:
• Over $25,000 in donations has been received so far, as well as in-kind services.
• Over 375 individuals have contributed – 100 of those live in 34 states other than Texas.
• 17 organizations have sent donations or in-kind services – 10 organizations in Texas; 7 from other state or national organizations. They are:
- American Association of Nurse Attorneys, Inc. – Texas Chapter
- American Nurses Association
- Coalition for Nurses in Advanced Practice
- Licensed Vocational Nurses Association of Texas
- National Federation of Nurses
- New Mexico Nurses Association District 14
- New York State Nurses Association
- Texas Council of PeriOperative Registered Nurses
- Texas Nurse Practitioners
- Texas Nurses Association
- Texas Nurses Association District 8
- Texas Nurses Association District 20
- Texas Nurses Association District 25
- Texas Organization of Baccalaureate and Graduate Nursing Education
- United American Nurses
- Washington State Nurses Association
- Washington State Nurses Association E&GW Fund
• Numerous messages and e-mails of support and goodwill have been sent.
A longer than expected morning in court ended without a ruling from the judge on a hearing for two nurses indicted in Winkler County. The Honorable James L. Rex, state district judge, chose not to rule today at the Winkler County Courthouse on the motions presented by the defense attorneys for Vicki Galle, RN and Anne Mitchell, RN, the two nurses indicated on felony charges of misuse of official information. The charges were filed after Galle and Mitchell reported a physician to the Texas Medical Board over concerns about his practice. The nurses were also fired by the Winkler County Memorial Hospital.
More than 80 people were in the courtroom for the hearing – many of which were nurses who showed up to support Galle and Mitchell, and the rights of every practicing nurse in Texas to advocate for patients.
Texas Nurses Association General Counsel Jim Willmann and another colleague were among those attending the hearing. TNA was among the first to break the story which by now has received national attention from individuals and organizations including the American Nurses Association.
It’s not clear when Judge Rex will rule. Some reports say a ruling could come as early as Friday; others say it’ll be one to two weeks from now. If the judge denies the nurses’ motion to dismiss the indictment altogether, the case will head to trial.
On July 17, Texas Nurses Association filed a formal complaint with the Texas Department of State Health Services (DSHS) – the state agency that licenses hospitals – against the Winkler County Memorial Hospital of Kermit, TX. The action was taken in response to a series of events in Winkler County, launched by a report to the Texas Medical Board by two registered nurses – Anne Mitchell, RN and Vicki Galle, RN – who had concerns about a physician’s standard of practice at the West Texas hospital.
Since reporting the physician in early April 2009, the two nurses have been indicted and arrested on third-degree felony charges of misuse of official information. The charges carry penalties of up to ten years’ imprisonment and a maximum fine of $10,000. The criminal indictments allege the nurses improperly disclosed information that was not public “with intent to harm” the physician since they included medical patient record numbers – not patient names – in the report.
The hospital also terminated the employment of the nurses, both members of Texas Nurses Association (TNA). In its formal complaint to DSHS, TNA stated it believes the Winkler County Memorial Hospital has a “self review” policy that prohibits nurses (and other employees) from reporting patient care concerns to outside agencies without first getting the hospital’s permission. TNA believes such a policy violates the rights of the nurses under the Texas Nursing Practice Act and Hospital Licensing Rules.
“The Nursing Practice Act, a Texas statute (law), gives registered nurses the right to report a licensed health care practitioner, agency or facility if they have reasonable belief (cause) that their patient may be exposed to harm,” explained Clair Jordan, MSN, RN, executive director of Texas Nurses Association. “Over the years, TNA has been involved in the passage of the Nursing Practice Act provisions and DSHS rules in order to make sure,” she explained, “that nurses are able to advocate for their patients without fear of retaliation.”
Further, TNA’s complaint also states that it has reason to believe the hospital terminated the nurses’ employment because of the nurses’ report to the Texas Medical Board, and that such termination constitutes retaliation which is prohibited by a number of Texas laws and regulations. Since DSHS is the state agency that licenses hospitals, it must now investigate and take appropriate action.
Texas Nurses Association Establishes Legal Defense Fund
To Support Nurses Indicted for Being Patient Advocates
In Winkler County, a small West Texas county adjacent to the southeast corner of New Mexico, two registered nurses are facing criminal indictments because they wanted to advocate for their patients. The felony charge: misuse of official information. Under the Texas Penal Code, misuse of information is a third-degree felony that carries the potential for two-to-ten years’ imprisonment and upwards of a $10,000 fine. It’s a pretty serious situation.
Texas Nurses Association recently learned of the accusation that the two nurses – both TNA members – reported a physician at their hospital – a county hospital – to the Texas Medical Board because they had concern that the physician’s practice was below the acceptable standard of care. The nurses were soon thereafter terminated by their hospital employer. And, the physician had also filed a harassment complaint against them with the county sheriff’s department. The criminal charges according to a television news broadcast by KWES NewsWest 9 in Midland, Odessa, Big Spring, were because the nurses “sent patient files to the state medical board in an attempt to harm one of the hospital’s physicians.”
Because the two nurses, Vicki Galle, RN and Anne Mitchell, RN, worked for a county hospital – and included medical record numbers of the patients in their report (actually, no patient names were disclosed) – they were charged with the felony crime of misuse of official information. Even though the Texas Medical Board stated in a letter to Winkler County attorneys that disclosing of patient identification numbers is allowed under state and federal law, the nurses must still defend themselves against the criminal charge. And, they are without their jobs.
While Texas Nurses Association is aware of other cases of nurses being retaliated against because they advocated for patients, this is the first case in Texas in which nurses have been criminally charged for acting as patient advocates. TNA stands on the belief that no nurse should be retaliated against – intimidated, coerced, threatened, harassed, demoted, written up or fired – for advocating for a patient.
“It is an absolute right,” states Clair Jordan, MSN, RN, executive director of Texas Nurses Association,“that has directed TNA for over 20 years to pass laws to protect nurses from such retaliation.This whole criminal case is just outrageous,” she said.
TNA Establishes Legal Defense Fund
To support the legal rights of these nurses in Winkler County – and the rights of every practicing nurse in Texas to advocate for patients – Texas Nurses Association has established the TNA Legal Defense Fund. The first $10,000 in donations to the fund will be used exclusively to assist the nurses in Winkler County with their legal defense. Texas Nurses Association will match every $1 contributed to the fund by individual nurses up to $5000. Any funds collected above $10,000 can then be used to either provide additional assistance to the two nurses in Winkler County or to support other nurses who are retaliated against because they advocated for patients.
To make contributions to the TNA Legal Defense Fund
Contribute here the TNA Legal Defense Fundto make a secure, online contribution with a credit card. Please join with Texas Nurses Association in ensuring the right of nurses to advocate for patients without fear of retaliation by contributing to the TNA Legal Defense Fund.
1. Where is Winkler County?
Winkler County is a rural Texas county (population of about 7,000-8,000) that is west of Midland-Odessa and borders the southeast corner of New Mexico. Kermit, with a population of around 6,000, is the county seat and is located about 50 miles west of Odessa.
2. What size hospital is Winkler County Memorial Hospital?
The hospital is operated by the county with 15 licensed beds. The hospital employs about 15 registered nurses and 17 licensed vocational nurses. The closest medical referral centers are Odessa Regional Medical Center (45 miles) and Midland Memorial Medical Center (63 miles).
3. Who are Vicki Galle and Anne Mitchell?
Vicki and Anne are registered nurses who live in Jal, New Mexico (about 20 miles from Kermit) and who worked at Winkler County Memorial Hospital until they were terminated in June. Both nurses shared responsibilities for the role of medical staff coordinator for the hospital. In addition, Vicki was in charge of Quality Improvement/Utilization Management, and Anne was the hospital’s Compliance Officer. Anne also worked part-time as emergency management coordinator for Winkler County. Both Vicki and Anne have been registered nurses employed by the hospital for over 20 years.
4. What did the nurses do?
Vicki and Anne reported to the Texas Medical Board concerns they had about the standard of care provided by a physician who practiced both at Winkler County Memorial Hospital and at the Winkler County Rural Health Clinic. The letter was not signed due to fear of retaliation: I am hesitant to place a signature on this information. Administration has made it clear that there will be no reporting of any problems without administrative, medical staff, and board notification. This would certainly create an opportunity for (the administrator) to remove me from employment. At the appropriate time I will speak with an investigator should the Medical Board determine that an investigation is warranted.
5. Why didn’t they raise their concerns to hospital administration instead of going directly to the Texas Medical Board? It is Texas Nurses Association’s understanding that the nurses had raised concerns within the facility but felt those concerns were not being sufficiently addressed to assure patient safety. The details of exactly what happened are expected to be more fully disclosed at the trial.
6. What were their concerns about the physician? The nurses were concerned that the physician’s practice was inconsistent with quality of care and patient safety. They were also concerned about his use of non-therapeutic treatments and prescriptions.
7. How did they end up with criminal charges? When the physician was notified by the Texas Medical Board (TMB) that he had been reported to the Board, he filed a complaint with the sheriff alleging he was being harassed. Because he was conducting a criminal investigation, the sheriff was able to request that TMB provide him a copy of the report made against the physician. 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 fitting both Vicki and Anne. The sheriff used this description to identify Vicki and Anne. 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.
8. What crime are they accused of? Ultimately, Vicki and Anne were not indicted for harassment but rather for misuse of official information.
9. What was the misuse of official information? Their indictments charge that they took non-public information they had access to as public employees and used it for a nongovernmental purpose, namely, to harm the physician, by forwarding it to the Texas Medical Board. Although the indictment does not state what the information was, supposedly, it was patient information including patient case numbers.
10. Wouldn’t disclosing patient information violate HIPAA? Not according to the TMB because of the exception in the HIPAA laws for disclosures to health care oversight agencies. The medical board has also indicated that since it was a state agency, disclosure of information to it would be for a governmental purpose.
11. What does the Texas Medical Board say about the case? The Texas Medical Board wrote a letter to the District and County Attorneys of Winkler County in June 2009. The TMB challenged the notion that information provided to them is for nongovernmental purposes: Information provided by an individual to the board… is information used by the Board in its governmental capacity as a state agency. …Information provided triggering a complaint or furthering and investigation by the Board is information provided for a governmental purpose – the regulation of the practice of medicine.
Further, …under federal law, the TMB is exempt from the [HIPAA] requirements; therefore, the provision of medical documentation with patient names on them to the Board is not a violation of [HIPAA].
The TMB also expressed concern that the confidentiality of the complaint filed with the Board had been violated: …the Board has a complaint procedure whereby persons may file a complaint against a license holder with the Board…. Any complaint filed with the Board is considered privileged and confidential and is not subject to discovery, subpoena or other means of legal compulsion for release to anyone other than the Board… The indictments and other documents issued in this prosecution have effectively destroyed the legislatively created confidentiality that a complainant to the Board would have…
Finally, the TMB stated its “grave concern” that the action of the District and County attorneys “potentially created a significant chilling effect” on others who may have been able to provide the Board with information needed in their investigation.
12. What is the status of the case? Several pretrial motions had been filed by the nurses’ attorneys. As of 9/1/09, all but two of the motions have been denied; the remaining two motions are a motion to dismiss the case due to prosecutorial vindictiveness and a motion for access to HIPAA protected patient records.
13. What will happen if they are found guilty? Under the Texas Penal Code, misuse of information is a third-degree felony that carries the potential for two-to-ten years’ imprisonment and upwards of a $10,000 fine.
14. How could this happen? I thought nurses had whistle-blower protections.
They do, however whistle-blower 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.
15. Isn’t the hospital’s termination of the nurses illegal retaliation?
Yes. The nurses were terminated apparently as a result of reporting the physician. Under the Texas Nursing Practice Act and the Public Employees Whistleblower Law, there is a presumption that if a nurse is terminated within 60 days of making a protected report that the termination is because the nurse made the report.
16. Can the nurses sue the hospital for retaliation?
Yes. In fact, on Friday, August 28, the nurses did just that – they filed suit in federal court alleging not only illegal retaliation but also civil rights and due process violations. The lawsuit names as defendants the hospital, as well as the county, hospital administrator, and physician. Additionally, because the nurses claim violation of their civil rights, the district attorney, county attorney, and sheriff were also named.
17. Does Texas have whistle-blower laws that provide nurses with legal grounds to allege retaliation? Yes! The nurses’ complaint states that their termination and criminal indictment was illegal retaliation in violation of the Nursing Practice Act and several other Texas laws:
• Sections 301.4025 and 301.413 of the Nursing Practice Act that give nurses a right to report other licensed practitioners and prohibit retaliation
• Board of Nursing Rule 217.19 related to peer review and whistleblower protections
• Health and Safety Code provisions prohibiting retaliation for reporting patient care concerns
• Medical Practice Act provisions that prohibit retaliation for reporting to the medical board
• The Public Employee Whistleblower Law
18. Has a complaint been filed against the hospital? On July 17, Texas Nurses Association (TNA) filed a formal complaint with the Texas Department of State Health Services– the state agency that licenses hospitals – against Winkler County Memorial Hospital.
In its complaint, TNA stated its belief that Winkler County Memorial Hospital has a “self review” policy that prohibits nurses (and other employees) from reporting patient care concerns to outside agencies without first getting the hospital’s permission. Such a policy violates the rights of the nurses under the Texas Nursing Practice Act and Hospital Licensing Rules.
In addition, TNA reported its belief that the termination of Vicki and Anne was due to their alleged reporting of a physician to the Texas Medical Board. Such termination constitutes retaliation prohibited by Texas laws and regulations including the Nursing Practice Act, Hospital Licensing Rules, the Governmental Code for public employees, and the Medical Practice Act.
19. How can I help support the nurses?
The Texas Nurses Association (TNA) has established the TNA Legal Defense Fund to support Vicki and Anne and other nurses who are retaliated against because they advocated for patients. Please contribute.