Threat of prison for nurse for reporting a doctor

KERMIT, Texas — It occurred to Anne Mitchell as she was writing the letter that she might lose her job, which is why she chose not to sign it. 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 the jail in Kermit last June, she thought she had entered a parallel universe, albeit one in a barren scrap of West Texas oil patch.

"It was surreal," said Mitchell, 52, the wife of an oil-field mechanic and mother of a teenage son. "I said, 'how can this be?' You can't go to prison for doing the right thing."

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

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

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 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 later flagged as inappropriate by the Texas Department of State Health Services.

Small-town politics

Charges against a second nurse, Vickilyn Galle, who helped Mitchell write the letter, were dismissed last week.

The case has been infused with the small-town politics of Kermit, of 5,200 in the heart of the Permian Basin, 10 miles from the New Mexico border.

When the medical board notified Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, a 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.

Both sides acknowledge the case has polarized the community, and the judge has moved the trial to a neighboring county.

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, Mitchell would seem to be protected by Texas whistle-blower laws.

Until they were fired without explanation June 1, Mitchell and Galle had worked a combined 47 years at Winkler County Memorial Hospital in Kermit, most recently as its compliance and quality-improvement officers. The nurses, who are highly regarded even by the administrator who dismissed them, said the case had stained their reputations and drained their savings. With felony charges pending, neither has been able to find work.

"It has derailed our careers, and we're probably not going to be able to get them back on track again," said Galle, 54. "We're just in disbelief that you could be arrested for doing something you had been told your whole career was an obligation."

It was not long after the public hospital hired Arafiles in 2008 that the nurses said they began to worry. They sounded internal alarms but thought they were not being heeded by administrators.

Letter typed, mailed

Frustrated and fearing for patients, they 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 Arafiles was sending e-mails to patients about an herbal supplement he sold on the side.

Mitchell typed the letter and mailed it with a separate complaint signed by a third nurse, who wrote that she had resigned because of similar concerns about Arafiles. That nurse was not charged.

To convict Mitchell, the prosecution must prove she used her position to disseminate confidential information for a "nongovernmental purpose" with intent to harm Arafiles.

The nurses' lawyers, John Cook IV and Brian Carney, have filed a civil lawsuit in federal court charging the county, hospital, sheriff, doctor and prosecutor with vindictive prosecution and denial of the nurses' First Amendment rights.

Nonetheless, the sheriff, Robert Roberts Jr., and the prosecutor, Scott Tidwell, express confidence in their case.

"The only side of the story that the town has heard is that these are sisters of mercy, missionaries of peace," said Tidwell. "The town has not heard the whole story."

Arafiles, 47, who attended medical school in his native Philippines and trained in Baltimore and Buffalo, N.Y., said his lawyer had advised him not to talk. "I'm the victim in this case, and that is all I can say."

Several Texas laws would seem to enshrine a nurse's right, and perhaps duty, to report a physician when he or she believes patients are at risk. Lawyers on both sides agree the case will hinge on whether a jury believes that 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 the conduct being reported is illegal.

Doctor reprimanded

The hospital administrator, Stan Wiley, said Arafiles had been reprimanded on several occasions for improprieties in writing prescriptions and performing surgery, and he had agreed to make changes. Wiley, who said it was difficult to recruit physicians to remote West Texas, said he knew when he hired Arafiles that he had a restriction on his license stemming from his supervision of a weight-loss clinic.

Violations found

In a surprise inspection last September, state investigators found several violations by Arafiles and concluded the hospital had discriminated against the nurses by firing them for "reporting in good faith."

Mitchell said all she saw at the hospital was delay. "The medical staff needed to make a decision on him," she said. "You don't get a second chance to save somebody's life."