When nurses Anne Mitchell and Vicki Galle saw a physician at their hospital engaging in medical practices that disturbed them, they sent an anonymous letter to the Texas Medical Board. A few months later they found themselves under criminal prosecution and had lost their jobs.
The indictment issued by the Winkler County grand jury in Kermit, Texas, alleges that the nurses, who worked at Winkler County Memorial Hospital, misused "official" information "with intent to harm" the physician, Rolando Arafiles-a third-degree felony. In their letter, the nurses had said Arafiles encouraged his patients to buy his herbal supplements and that he attempted to use hospital supplies to perform a procedure in a patient's home.
After the board received the nurses' letter, it notified Arafiles that he was under investigation. The physician then filed a harassment complaint with the Winkler County sheriff's department. The sheriff identified the nurses after interviewing patients whose medical record numbers were included in the letter and after finding a copy of the letter on the nurses' computer. According to Brian Carney, the nurses' attorney, this was against medical board policy, which states that law enforcement officials can't use confidential complaint reports unless investigating a medical license holder: that is, a physician.
The nurses' case was heard on August 5. At press time, the judge hadn't yet ruled on motions to dismiss the case on grounds of vindictive prosecution but denied two motions to suppress the evidence from the nurses' computer, said James H. Willmann, director of governmental affairs for the Texas Nurses Association (TNA).
The TNA has established a legal defense fund for the nurses, promising to match the first $5,000 contributed. By August 17 the fund had reached $25,000. Clair Jordan, the TNA's executive director, said this was a "very healthy response from nurses."
Reports to a medical board are specifically allowed under the Health Insurance Portability and Accountability Act. Whistleblower safeguards in Texas currently protect nurses from being fired or discriminated against by allowing them to file a civil suit for reinstatement. The idea that a state would bring a criminal prosecution was "something no one ever anticipated," said Willmann.
Nurses are ethically obligated to be their patients' advocates, said Alice Bodley, general counsel for the American Nurses Association, and she added that this case might cause nurses to hesitate before reporting questionable medical practice.
Gwendolyn Agbatekwe of Austin, Texas, attended the August 5 hearing as a member of the National Nurses Organizing Committee. She said she planned to return if the case went to trial. "If these nurses are brave enough to say to the public, 'Hey, this isn't right,'" said Agbatekwe, "then we need to stand beside them and, without fear of retaliation, say, 'This is wrong.'"
Jennifer Moser