In the tiny west Texas town of Kermit, just north of Mexico, an ethics train wreck is underway that may have long-term consequences far beyond the Lone Star State.
Anne Mitchell, a nurse with an impeccable record, became disturbed at the conduct of a physician at the Winkler County hospital where she worked. After unsuccessfully attempting to get hospital administrators to deal with what she believed was a matter of patient endangerment, she sent an anonymous complaint to the Texas Medical Board. This was a classic whistle-blower situation, protected by law and encouraged by the ethics code governing nurses. Unless she trumped up her accusations for a personal vendetta, she did exactly what the medical profession says she has an obligation to do, a responsible act of medical system self-policing that all too few nurses are willing to follow.
Mitchell claimed that Dr. Rolando G. Arafiles Jr. had delivered shoddy, non-standard and otherwise inappropriate care in six cases, and also that he was using his position to peddle herbal remedies. One difficulty: there are only three doctors affiliated with the hospital, and Kermit, Texas is not exactly a magnet for top medical talent. The town and the county may have the choice of a few bad doctors or no doctors at all. The doctors that are there, meanwhile, have made some friends.
Unfortunately for Nurse Mitchell, one of Dr. Arafiles’ friends is the Winkler County sheriff, Robert L. Roberts Jr. He believes the doctor saved his life, and there are allegations that he and Arafiles share some business interests. When the doctor complained to the sheriff that an unnamed nurse was “harassing” him, Roberts investigated the case with gusto. He examined all the patient records mentioned in the complaint against Arafiles, and gradually narrowed the source down to two nurse. Then he obtained a search warrant to search the computers of the two nurses he suspected, and found the letter on Anne Mitchell’s computer.
The hospital fired both nurses, and prosecutors filed a criminal suit against Mitchell, alleging “misuse of official information,” a third-degree felony in Texas that carries a maximum penalty of 10 years in prison and a $10,000 fine. The nurses(the other, who helped Mitchell write her complaint, is no longer being charged) have filed a federal lawsuit charging that they were deprived of free speech, due process and the protection of whistle-blower laws.
Meanwhile, the Texas Medical Board has sent a letter to the attorneys stating that it is improper to prosecute nurses for bringing complaints to the board. It points out that the complaints were confidential and not subject to subpoena (true); that the board is exempt from federal HIPAA law (also true); and that the board depends on reporting by health care professionals fulfill its duty to find and stop negligent, careless, malpracticing physicians.
All true. Still, the prosecution goes on. The Texas Nurses Association has created a legal defense fund for Mitchell, who is essentially standing trial for following the association’s Code of Ethics.
What’s going on here?
We can count on evidence being presented against Mitchell alleging that she did not make the complaint in good faith, and had some unacceptable motive for her actions. Without this, there is no case: the Texas Whistleblower Act is clear that a good faith complaint, even if it is later shown to be mistaken, cannot provoke any kind of retaliation . Some bloggers have concluded that Dr. Arafiles is untrustworthy, but that is what the board’s investigation is supposed to determine; he has rights too. The current ethical issues are…
- Mitchell is being prosecuted by a law enforcement officials who may have a conflict of interest. It is the kind of conflict, however, that is unavoidable in a small town like Kermit. Everybody knows everybody.
- Sheriff Robert is abusing his power and position if he has arrested Mitchell out of loyalty to his physician.
- The prosecutor is abusing his power if the prosecution is designed keep her from chasing away one of the town’s few doctors.
- It is likely that the prosecution, whether it is successful or not, will discourage other nurses in other hospitals from reporting dangerous doctors. This would be a catastrophe, and would almost certainly result in harm to an unknown number of patients in and out of Texas.
- The situation highlights an ethical dilemma created by the difficulty of attracting good physicians to places like Kermit, Texas. It is unlikely that a doctor coming to a place like Kermit will have the skills of Dr. DeBakey. What is more likely is that he has ended up in Kermit because past errors have limited his options, like the disgraced college basketball coach who takes a dead-end coaching job at a tiny Indiana high school in the film “Hoosiers.” Does it make sense to hold such a doctor to the same high standards as other doctors, when those other doctors wouldn’t consider coming to Winkler County Hospital?
- It is an accepted principle of professional ethics that the duty of competence can’t be waived. Is the principle reasonable in a place like Kermit? Should the patients of Kermit be able to tell the dead-end doctors who find their way there, “Don’t worry…just do your best. We’re not expecting you to be perfect, or even very good. Just try not to kill us, okay?” It might be in the best interests of Kermit’s residents to tolerate occasional sub-standard care from a poor doctor, when the alternative is no medical care at all.
It is possible that Anne Mitchell, while performing a correct, ethical and courageous act for her profession, may have done the wrong thing for the people of her town. That doesn’t mean that she should be prosecuted, but it may explain why she has been prosecuted.
Update: Anne Mitchell was acquitted. Good. But the fall-out from the case is just beginning.