Texas Medical Board Files Complaint Against Winkler County Physician
July 19, 2010 The Texas Medical Board (TMB) filed a formal complaint in late June against Rolando Arafiles, Jr., M.D., the Texas physician at the center of what’s become known as the “Winkler County nurses” trials. According to the complaint, TMB took action “…to protect the health and public interest of the citizens of the State of Texas…” following its investigation into a report made anonymously by two registered nurses – Anne Mitchell and Vicki Galle – that called into question the medical practice standards of Dr. Arafiles. Under the Texas Nursing Practice Act, a Texas law, registered nurses have the right – and the duty – to report unsafe patient care.
Mitchell, Galle and Arafiles all worked at the Winkler County Memorial Hospital in Kermit until the nurses reported the physician to the TMB. Mitchell and Galle were terminated by the hospital, and indicted on third-degree felony charges of Misuse of Official Information for making the report. In the early February criminal trial, Mitchell was found not guilty. Charges against Galle were dismissed right before the trial began.
The TMB complaint alleges Arafiles violated the Medical Practice Act, and cites nine patient care issues showing poor medical judgment and decision making, failing to maintain adequate medical records, overbilling, improper coding, and non-therapeutic prescribing and/or treatment. Significant for nursing, the TMB complaint against Arafiles also alleges unprofessional conduct of witness intimidation in that Arafiles sought the assistance of the Winkler County sheriff in identifying who had reported him, and then filing a harassment complaint against them.
In summary, according to the TMB complaint against Arafiles, the “case involves patient harm; … intentional and knowing conduct; and multiple violations of the Act and Board rules.”
Now, Dr. Arafiles has 20 days to respond to the TMB complaint by filing a written answer, upon which time the complaint can be set for a hearing. A date for the hearing has yet to be set. Dr. Arafiles could be facing disciplinary action including the loss of his medical license. He is also a defendant in a civil lawsuit filed by Mitchell and Galle in federal court that alleges illegal retaliation for patient advocacy activities, as well as civil rights and due process violations. The trial is set for mid-November, 2010.
TNA has posted a copy of the full transcript of Anne Mitchell’s criminal trial. The transcript is divided into four volumes – one for each day of the trial.
To facilitate reading the transcript, TNA has prepared and posted a detailed transcript outline listing the witnesses together with where their testimony appears by day, page and line number and broken down by direct examination, cross examination, re-direct and re-cross.
Because of the significance of their testimony, TNA has pulled out and posted separately the testimonies of:
Texas Nurses Association Honors Mitchell and Galle with President’s Award
April 24, 2010 The first opportunity for Texas Nurses Association to formally recognize the moral courage demonstrated by Anne Mitchell, RN, and Vickilyn Galle, RN, when they faced personal and professional risk in order to advocate for their patients’ safety came with the presentation of a President’s Award at TNA’s annual House of Delegates, and the reading of a special courtesy resolution – signed by all nurse delegations from across the state – that honored the women now known as the “Winkler County nurses.”
Surely the next highlight of the day’s state-wide meeting was the opportunity for all TNA delegates to individually meet Mitchell and Galle, their husbands Buster and Danny, criminal defense attorney John H. Cook, IV, and his wife, Mindy, and to express to them all personal comments of gratitude and support for their professional courage and personal sacrifices in protecting a nurse’s right and legal duty to advocate for patient safety.
A President’s Award is given at the discretion of the TNA president, and serves to acknowledge and recognize those individuals or organizations who demonstrate exceptional support of nursing practice.
Winkler County Hospital Faces $15,850 Fine
April 22, 2010 In an April 12 letter that is now public record, the Texas Department of State Health Services (DSHS) notified the Winkler County Memorial Hospital of a $15,850 administrative penalty it intends to impose against the facility for violations of Texas law relating to the licensing and regulation of general and special hospitals. The proposed fines – the maximum allowed under current law and DSHS guidelines for fines – resulted from a September 2009 onsite complaint investigation by DSHS – the state agency that licenses hospitals. The DSHS onsite investigation was triggered by a formal complaint filed by Texas Nurses Association against the hospital in July 2009 after two of its members, Anne Mitchell, RN, and Vickilyn Galle, RN, were fired following their report of concerns to the Texas Medical Board about a facility physician’s standard of practice.
Of the seven violations cited in the DSHS letter to the Winkler County hospital, only one dealt directly with the termination of Mitchell and Galle soon after they reported their patient care concerns. Their firing according to DSHS was a violation of 25 TAC §133.43(b) Discrimination relating to employee reporting a violation of law. For that single violation, a $650 administrative penalty was assessed for each nurse terminated – again, the maximum fine allowed. The remainder of the penalties dealt with failed operations of the hospital and quality of medical care.
“Even though this $15,000-plus fine is the maximum penalty DSHS imposes for the violations found, it’s still appalling that the firing of a nurse who reports a violation of the law is only worth $650 in fines,” stated Susy Sportsman, PhD, RN, president of Texas Nurses Association. “This just seems like a continuation of the outrageousness of this entire ordeal in Winkler County and the devastating impact it’s had on the two nurses who reported concern for their patients.”
Within 20 days of being notified of DSHS imposed penalties, Winkler County Memorial Hospital must respond to the Notice of Violation through one of three options: 1. It can admit to the allegations and accept the proposed action; 2. Not accept the proposed action and request a formal conference; or 3. Not accept the proposed action and request a hearing before the State Office of Administrative Hearings.
“Rest assured,” claimed Sportsman, “Texas Nurses Association remains vigilant over this matter and will continue to support every nurse’s legal duty to report without retaliation any unsafe patient care.”
Trial Date Set, Mediation Ordered for Civil Case
March 30, 2010 November 16, 2010 is the court date now set for the federal civil lawsuit of Anne Mitchell, RN and Vickilyn Galle, RN, that was filed last August against a number of defendants from Winkler County, TX. Before that, the U.S. District Court Judge ordered, all parties must schedule by May 1 another mediation in an effort to resolve their differences.
Mitchell and Galle, known as the “Winkler County nurses,” first came to the public’s attention when they were arrested and indicted by Winkler County, TX authorities with a third-degree felony charge of misuse of official information for reporting a physician to the Texas Medical Board over patient care concerns. The nurses were also terminated from their jobs at the Winkler County Memorial Hospital.
Shortly before the criminal trial date of February 8, 2010, all charges were dropped against Galle. A court jury verdict of not guilty was returned for Mitchell.
Prior to the state criminal trial, all parties in the federal civil case had been ordered to mediation. No agreement was reached. They are now ordered by the federal judge to try it again. Defendants in the civil case include: the physician, Winkler County, Winkler County Memorial Hospital and its hospital administrator, Winkler County sheriff, and the district and county attorneys of Winkler County.
1. On what laws are the nurses basing their federal civil lawsuit?
The nurses are asserting numerous claims for relief that fall into three categories:
1. Violations of U.S. Constitution and civil rights laws including violations of rights of free speech and due process.
2. Violations of Texas Whistleblower laws including the Texas Nursing Practice Act and the Texas Public Employees Whistleblower Act.
3. Claims based on causes of action recognized by Texas courts including interference with business relationship (the nurses’ employment). It is expected now that the nurses have been dismissed or found not guilty in the state criminal trial that a claim for malicious prosecution will be asserted by the nurses.
2. For what relief are the nurses asking? • Actual financial damages suffered such as lost wages.
• Compensation for the emotional pain and suffering experienced.
• Punitive/exemplary damages to punish defendants and discourage others from engaging in similar conduct.
• Reinstatement of their jobs or compensation for the loss of those jobs.
• Attorney fees.
3. Who are the defendants in the federal civil case? • Winkler County, TX
• Winkler County Memorial Hospital in Kermit, TX
• Hospital Administrator Stan Wiley
• Winkler County Sheriff Robert L. Roberts, Jr.
• Winkler County Attorney Scott Tidwell
• District Attorney Mike Fostel
• Rolando G. Arafiles, Jr., M.D.
4. What are the reasons asserted by defendants for why they should not be held civilly libel for retaliating against the nurses?
The defendants have asserted that their actions were legal, e.g., the hospital asserts it did not terminate the nurses because they made their report to the Texas Medical Board but rather for other reasons. The jury will ultimately have to answer these types of fact questions.
The defendants have asserted a number of “immunity” defenses based on the fact they are a governmental entity, a public official or making a report to a public official. Not all of these defenses will apply to all of the defendants but probably each defendant will assert at least one of these defenses.
The court will have to decide which, if any, of these defenses apply to which defendants, and to which of the nurses’ claims for relief. For example, the county has asserted sovereign immunity as a defense against several of the state whistleblower claims based on the fact that it is a government entity and cannot be sued unless a statute explicitly allows a governmental entity to be sued. This defense would not apply to the Public Whistleblower Act since it explicitly authorizes law suits against governmental entities. The fact that there are so many types of defendants – governmental entities, elected public officials, public employees, etc., makes this case complicated.
5. What is a sovereign immunity defense?
Sovereign immunity is the legal doctrine that the government cannot be sued. However, a government can waive this right not to be sued. When it does, the government is said to have waived sovereign immunity.
Texas law requires the waiver of sovereign immunity to be explicit. The Texas Public Employees Whistleblower Act explicitly waves sovereign immunity. As employees of Winkler County, the nurses are public employees and can bring a suit under that Act.
The Texas Nursing Practice Act (NPA) does not contain an explicit waiver of sovereign immunity and the court may rule that the county and the other defendants who are public officials may not be sued under the NPA.
Texas Nurses Association sought legislation in 2009 (HB 2719 by Rep. Donna Howard) that would amend the NPA to include an explicit waiver. The legislation did not pass. TNA is again working with Rep. Howard and other stakeholders on similar legislation for 2011. Adding a waiver of sovereign immunity language to the NPA will benefit publicly-employed nurses because the NPA whistleblower protections are stronger than those of the Texas Public Employees Whistleblower Act.
6. Will the civil case be tried before a jury?
Yes, the nurse plaintiffs have requested a jury trial.
7. When will the case be tried? The court has set a trial date for November 16, 2010, but the date could be changed. However, this would be the earliest that the trial would reasonably be expected to be held. It is also possible the suit could be settled by agreement of the parties prior to trial.
8. Has mediation been ordered before in this case? Yes, the parties were first ordered to mediation in December of 2009. It was unsuccessful. Now the parties are ordered for a second time to make another attempt at mediation no later than May 1.
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.