• Texas "Whistle Blower" Nurse Indictments Raise Eye Brows
  • August 6, 2009
  • Law Firm: Holland & Hart LLP - Denver Office
  • Things happen differently in West Texas where it can rain red mud. In Winkler County Memorial Hospital in Kermit, Texas two nurses who consider themselves as “patient advocates” have been indicted by Winker County Attorney, Mike Fostell for violation of Texas Penal Code 39.06, the misuse of official information, a third degree felony with the possible sentence of ten years.  Their crime?  They filed an anonymous complaint to the Texas State Board of Medicine concerning Dr. Rolando Arafiles, in which they assert that Dr. Arafiles improperly encouraged patients to purchase herbal remedies from him and wanted to use hospital supplies for a procedure in the home of a patient.  The nurses provided medical file numbers of six patients to the board.  The action of the nurses was in direct violation of a hospital board requirement that all physician complaints be filed with the hospital first before being reported to a state agency.

    The County Sheriff, who is was apparently a patient of Dr. Arafiles, obtained a copy of the complaint for the Texas Board and through clever detective work (following up through the process of elimination on the age and self description of nurse Anne Mitchell) determined her identity. He confiscated her computer and found a copy of the complaint on her hard drive. Nurse Mitchell and her co-indictee, Nurse Vicki Galle were subsequently fired by the hospital. The nurses have obtained the moral and financial support of the Texas Nurses Association and the American Nurses Association. The indictment for the filing of a complaint with a state regulatory body is apparently a first even for the State of Texas.

    The facts in the indictment are very sketchy.  Several alleged nurses at the Kermit facility, have filed comments to various news and blog articles about the indictments indicating support for Dr. Arafiles and suggestions that the two nurses were “paper-puchers” (sic) and not floor nurses and that their complaints had been reviewed and rejected by the hospital and an independent outside review.  There is perhaps another side of the story which will surface, but from the known facts this indictment seems likely to flounder.  There are First Amendment questions as well as probable qualified if not absolute privileges available for the reporting of information and concerns to a public regulatory agency. There is also the peculiar legal issue of the propriety of the hospital ordering the withholding of information from the Texas Medical Board.

    There does seem to be an attitude among some nurses in West Texas and elsewhere that nurses are there to protect patients from the misdeeds of rapacious physicians, an attitude that many physicians find annoying to say the least. Certainly there are some circumstances where that is true, but as a general “raison d’etre” it does not sell well in the physicians lounge.  The underlying concern of the nurses in this case also seems to be a bit on the light side, unless there is more to the complaint than meets the eye. Regardless of the motivation of the nurses or the substance of their complaint, it seems likely that the public policy of the state will support their right to file their complaint without fear of a silly indictment from a clueless district attorney in the Panhandle.