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Nurse Could Face Prison Time For Reporting Surgeon

Sun, 02/07/2010 - 8:01am

It occurred to Anne Mitchell that she might lose her job, but it was beyond her conception that she would be indicted and threatened with 10 years in prison for doing what she knew a nurse must: inform state regulators that a doctor at her rural hospital was practicing bad medicine. When she was fingerprinted and photographed at jail last June, it felt as if she had entered a parallel universe.

“It was surreal,” said Mrs. Mitchell, 52, the wife of an oil field mechanic and mother of a teenage son.”

But in what may be an unprecedented prosecution, Mrs. Mitchell is scheduled to stand trial in state court for misuse of official information – a third-degree felony in Texas.

The prosecutor said he would show that Mrs. Mitchell had a history of making inflammatory statements about Dr. Rolando G. Arafiles, Jr. and intended to damage his reputation when she reported him to the Texas Medical Board.

Mrs. Mitchell counters that as an administrative nurse, she had a professional obligation to protect patients from what she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.

When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter.

The state and national nurses associations have called the prosecution an outrage and raised $40,000 for the defense. Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws.

Mitchell says the case had stained her reputation and drained her savings. With felony charges pending, she hasn’t been able to find work.

It was not long after the public hospital hired Dr. Arafiles in 2008 that Mitchell began to worry. Frustrated and fearing for patients, she directed the medical board to six cases of concern that were identified by file numbers but not by patient names. The letter also mentioned that Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side.

To convict Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a non-governmental purpose, with intent to harm Dr. Arafiles.

Several Texas laws would seem to enshrine a nurse’s right, and perhaps duty, to report a physician when he or she believes that patients are at risk. Lawyers on both sides agree that the case will hinge on whether a jury believes that Mrs. Mitchell reported in good faith. In civil whistle-blower cases, the Supreme Court of Texas has held that good faith requires only a reasonable belief that the conduct being reported is illegal.

The hospital administrator, Stan Wiley, said in an interview that Dr. Arafiles had been reprimanded on several occasions for improprieties in writing prescriptions and performing surgery and had agreed to make changes. Mr. Wiley, who said it was difficult to recruit physicians to remote West Texas, said he knew when he hired Dr. Arafiles that he had a restriction on his license stemming from his supervision of a weight-loss clinic. In a surprise inspection last September, state investigators found several violations by Dr. Arafiles and concluded that the hospital had discriminated against the nurses by firing them.

But Sheriff Roberts, who has held the post for 18 years, said the state would show that the complaint had been filed in vengeance.

This is an abridged version of an article from the New York Times. To see the article in its entirety, go to http://www.nytimes.com/2010/02/07/us/07nurses.html

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