Texas Nurse Whistleblower Case
As many of you have read in the news, Anne Mitchell, R.N. and Vicki Galle, R.N. filed an anonymous complaint with the Texas Medical Board, complaining of a pattern of substandard care provided by a certain medical doctor (Dr. Arafiles). The physician then asked a friend and patient who was the sheriff to find out who filed the complaint. It was then discovered that it was Anne Mitchell and Vicki Galle. The sheriff then went to the Prosecutor who filed charges against Nurse Mitchell and Nurse Galle for misuse of official information.
Interestingly, Texas does have a whistleblower statute. This statute is designed to protect employees from retaliatory discharge when they make a complaint against unsafe care. However, the whistleblower statute is for state actions and not for criminal actions. Therefore, the Texas whistleblower statute protects a nurse from civil liability, but it does not protect the nurse from criminal actions. The sad part is that it jeopardizes the nurse’s ability to fulfill her duty to a patient to report patient safety concerns for fear of retaliation and criminal charges.
Both nurses worked in performance improvement positions at Winkler County Memorial Hospital. When Vicki and Anne reported the doctor to the Texas Medical Board, the letter was not signed due to fear of retaliation. This report to Texas Medical Board stated that the reporter “was a female registered nurse, over 50 years old, who had worked at the Hospital for over 20 years.” This description fit both Vicki and Anne. Specifically, they wrote I am hesitant to place a signature on this information. Administration has made it clear that there will be no reporting of any problems without administrative, medical staff, and Board notification. This would certainly create an opportunity for [the Administrator] to remove me from employment. At the appropriate time, I will speak with an investigator should the Medical Board determine that an investigation is warranted. Both nurses had expressed their concerns to the Hospital but felt that their concerns regarding patient safety were not sufficiently addressed.
The sheriff used the description provided in the report to the Texas Medical Board to identify Vicki and Anne. He then obtained a search warrant to seize their work computers and found a copy of the letter to the Texas Medical Board on one of them. The physician believed that the nurses harassed him, but the State chose to charge the nurses with misuse of official information.
The Texas Medical Board expressed concern with the District and County Attorneys because the Board claimed that any information provided to them is considered privileged and confidential and not subject to discovery, subpoena or other means of legal compulsion for release to anyone other than the Board. The prosecution of this matter effectively destroyed the legislatively-created confidentiality that a complainant to the Board would have. If the nurses were found guilty, it would result in a 3rd degree felony that carries the potential for 2-10 years’ imprisonment and upward of a $10,000 fine. Although the whistleblower statute protects the nurses civilly, it does not protect them criminally. Ultimately, the nurses may have an action for prosecutorial misconduct.
The nurse filed a lawsuit against the Hospital under the whistleblower statute alleging illegal retaliation in violation of the Texas Nursing Practice Act. In addition, the Texas Nurses Association filed a formal complaint with the Texas Department of State Health Services against Winkler County Memorial Hospital because Winkler County Memorial Hospital had a “self review” policy that prohibits nurses (and other employees) from reporting patient care concerns to outside agencies without first getting the Hospital’s permission. Such a policy violates the rights of the nurses under the Texas Nursing Practice Act and hospital licensing rules.
Both nurses were terminated from their positions and have filed civil suits against the Hospital for retaliatory discharge. After a 4-day trial and less than an hour of deliberation, the jury found Nurse Mitchell not guilty. (Prior to trial, the action against Nurse Galle was dismissed.)
After the trial, the Texas Medical Board did file charges against Dr. Arafiles. The Hospital was fined $15,850 as an administrative penalty for violations of Texas law relating to the licensing and regulation of general and special hospitals. Lastly, Anne Mitchell, R.N. and Vicki Gale, R.N. sued the Winkler County Memorial Hospital which fired them, the doctor, the sheriff, the county attorney, and the district attorney. The nurses were able to settle for the injustice in the amount of $750,000. While $750,000, split between the two nurses and their attorneys, may seem like too much or too little for all of the headaches, stress, losing their job, and criminal charges, sometimes, it is better to resolve a matter rather than take the risk of litigation. It is nurses like Anne Mitchell, R.N. and Vicki Gale, R.N., who took a stand to have good patient care in their former hospital, that are the heroes in this story. These nurses are agents of change and took a risk so that patient care can be improved. To join an organization to be a change agent for nursing, check out www.EmpoweredNurses.org.
