Who will speak out for you?

Two New Mexico nurses have paid a heavy price for following their consciences and the basic tenet of the nurse’s Code of Ethics — the ethical duty to protect and advocate for the rights, health and safety of patients. After unsuccessfully going up the chain of command at the Winkler County Memorial Hospital, a small West Texas hospital in Kermit, Texas, they made an anonymous report to the Texas Medical Board with concerns about a doctor selling his own sham herbal remedies to patients in the hospital’s emergency department and at a health clinic.

When the Texas Medical Board contacted the doctor to investigate him for poor quality of care, the doctor went to the Winkler County Sheriff who left no stone unturned to learn the identity of the nurses, including accessing confidential patient records and issuing a search warrant to seize their work computers. The whistle blower nurses were fired from their jobs, imprisoned and criminally prosecuted, and later let out on $5,000 bonds. They will finally face a jury trial next week for third-degree felony charges, carrying potential penalties of two-to-ten years’ imprisonment and maximum fines of $10,000.

Experienced nurses, whose only “crime” was to report to the appropriate medical agency something they felt was medically unsound and unethical, were imprisoned, their livelihoods taken, and criminally prosecuted.

In America.

The Court case

The court documents and exhibits (available in Plaintiff’s original complaint here), describe what has been described in an editorial published in the Austin American Statesmen as “a stunning display of good ol' boy idiocy and abuse of prosecutorial discretion.” The registered nurses, Ann Mitchell and Vickilyn Galle, had each been employed by the hospital for about two decades with good work histories. They were co-medical staff coordinators who worked in its quality improvement and utilization management department. Their responsibilities included credentialing physicians and reviewing patient quality issues and following patients throughout their hospital stay to ensure compliance with state and federal regulations.

Dr. Rolando Arafiles, Jr., M.D., had been hired by the hospital in April 2008 and at the time of hire was still subject to a three-year order by the Texas Medical Board prohibiting him from supervising or delegating prescription writing. Since then, two physicians at the hospital, and emergency room and clinic staff, had presented to the hospital’s administrator and Board of Control concerns about his standard of care and performance of medical procedures, but no action was ever taken. When the hospital’s chief of staff had requested a meeting with the doctor and hospital administrator and the nurses, the hospital administrator cancelled three meetings in a row and Dr. Arafiles was granted privileges. After three months of efforts, the chief of staff was able to present his concerns to the hospital board which included documentation and case reviews.

Finally, the nurses, believing they had an ethical and legal duty to report to licensing boards care that they had reasonable cause to believe exposed a patient to substantial risk of harm, filed an anonymous report to the Board with concerns about Dr. Arafiles selling herbal remedies that were not in the hospital formulary to patients. Afraid that if they signed their names the administrator would fire them, their letter was anonymous.

On April 15, 2009, the Texas Medical Board sent a letter to Dr. Arafiles, informing him that it had received a complaint and was investigating complains of quality of care and non-therapeutic prescribing or treatment and directed him to respond. The doctor took it to the Winkler County Sheriff, Robert Roberts.

Sheriff Roberts and Dr. Arafiles were business associates in an herbal supplement business, according to the court documents.

Sheriff Roberts sent the Texas Medical Board a letter requesting a copy of the complaint, stating he was conducting a criminal investigation of the complainants for the offenses of misuse of official information and harassment of the doctor. He then began an investigation and personally contacted every patient in the letter from the Texas Medical Board, trying to learn the identity of the nurses. When that didn’t work, he learned from their letter to the Texas Medical Board that they were female, over 50 years of age and had worked at the hospital since the 1980s, which helped him narrow down his search. On May 19^th, a search warrant was issued for their work computers and their computers were seized and the letter was found. The nurses were then fired on June 1^st by the hospital administrator for reporting a patient safety issue to the licensing authority. Not because of any unsatisfactory job performance.

By June 11^th, the nurses had been indicted for third degree felonies, charged with “misuse of official information,” with Sheriff Roberts as the only witness to the Grand Jury

Mari Robinson, Executive Director for the Texas Medical Board, sent a letter to the attorneys on June 17^th stating that all information provided to the Board was confidential and not subject to subpoena or other means of legal compulsion for release to anyone other than the Board and that the Board depends on reports from healthcare professionals to carry out its duty of protecting the public from improper practitioners. The Board supported the nurses in sharing chart numbers of patients to verify their concerns, stating that the Board is exempt from HIPAA and has the statutory access to hospital records and releasing any such information is not in violation of any laws. They also stated that the legal protections of the nurses and those who provide information to the Board, according to the Medical Practice Act under which the board is statutorily mandated, were being violated. She added:

It is our understanding that, as a result of your actions, the nurses who you allege provided information to the Board have been fired from their jobs at the hospital, have been indicted, been required to hire counsel, and each had to pay $5,000 bond. This action undertaken by your office has adversely impacted the Board’s investigation by its peace officers in this case. Further, it has potentially created a significant chilling effect on the cooperation of any other hospital personnel who might have been able to provide additional information needed by the Board in the completion of its investigation. This is of grave concern to the Board in its implications for this case, as well as other cases…

As part of its investigation of the complaint involving the licensee physician in question, a relevant inquiry will be whether that physician engaged in any activity that was designed to intimidate witnesses or complainants. Such activity is a violation of the Act and constitutes unprofessional and dishonorable conduct…

Ann and Vicky are fighting back and filed suit in federal court alleging they’ve been victims of retaliation for advocating for patients, as well as for violations of their civil rights and due process.

Why’d they do it?

While the court documents give a glimpse of the legal and professional nightmare these nurses have been enduring this year, they don’t reveal what was so troubling to them in the first place and what was going on at the hospital that they felt compelled to speak out. The media stories have glossed over that.

The court documents made passing reference to a prior disciplinary action against the doctor by the Texas Medical Board. The full story is on the Texas Medical Board’s website. Dr. Arafiles, who had received his medical degree from the University of the East, Quezon City in the Philippines in 1977, had been disciplined by the state licensing Board in April 2007. While working as a contracting supervising physician at a weight loss clinic, for months Dr. Arafiles had signed off on the prescriptions written by his physician assistant. The clinic protocol called for use of phentermine for obesity, even in patients whose BMI was under 30, as well as use of diuretics for potential side effects of hypertension, even in patients who weren’t experiencing hypertension or edema. The Board found that Dr. Arafiles had only reviewed his physician assistant’s files and was present at the clinic about 5% of the time the clinic was open, rather than the required supervision of his delegate a minimum of 20%. The Texas Medical Board took disciplinary action against Dr. Arafiles based on “unprofessional or dishonorable conduct that is likely to deceive, defraud or injure the public… because he, acting through his delegate, failed to practice medicine in acceptable professional manner consistent with public health and welfare.” He was prohibited from supervising physician assistants or nurse practitioners, assessed a $1,000 penalty, and made to complete continuing education on medical ethics, medical records and the treatment of obesity.

The nurses’ complaint expressed concern about his selling alternative herbal remedies to patients in the emergency department and a rural health clinic, but it’s easy to get a better understanding of the full extent of his medical practice that troubled them enough to speak out. Here are a couple of publicly-available examples:

Biotherapy. The February 17, 2000 issue of the Victoria Advocate advertised an Alzheimer’s Disease Support Group meeting presented by Dr. Arafiles, discussing nutritional therapy, screening for Alzheimer’s and dementia and offered a “biological terrain assessment.” He was the medical director at the BioTherapy Clinics of Texas, an alternative mind-body clinic offering “Immune System Restoration,” as well as ultra-darkfield microscopy, acupuncture, bio-terrain analysis, chiropractic, energy management, deep tissue massage, emotional therapy, bodywork, colonics, lymphatic drainage, hormone testing, nutritional and diet counseling , magnetic therapy, food allergy testing, human performance, metabolic programs, weight management, genetic marker testing, dendritic cell therapy, biologic response modifier concepts and more.

Alkaline-reduced water. Describing himself as the medical director of Texas Innovative Health Options and Wellness Center, he endorsed a water “alkanizer,” writing:

I know that you realize that unless we conscientiously find ways to protect ourselves from the barrage of xenobiotics in our food, environment, air and other aspects of life then we begine [sic] to lose whatever is healthy in our body. It is no secret today that the three leading causes of premature aging or degeneration are the uncontrolled activity of free radicals in the body, chronic dehydration and a chronic cellular acidity. I still am amused at the looks I see on my patient's face when I tell them that drinking 6~8 glasses of water may solve 50% of some of their ailments. You can thumb through the hundreds of peer-viewed medical literature and find that free radicals and its deleterious effects on the body are well documented. The acidic cellular pH is also now recognized as a hot bed too.

I would not have enough space to mention all the thousands of diseases but one in particular is cancer. Cancer thrives in an acid environment and changing that pH to neutral 6.5~7 may be one of the ways to inhibit cancer growth and/or even make it susceptible to the natural killer cells of the immune system. Fortunately the water from an Alkalizer™ covers these three causes.

I have been sharing this information with my patients. I have made the alkaline reduced water available in my office and treatment rooms… I personally have been blessed by drinking alkaline reduced water. I have reduced the number of supplements that I take. My allergies are less frequent. I have maintained my waist size at 34 inches since I dropped from 38 inches.

Keep up with the good work. together with the rest of health professionals that believe in the use of natural options to health we will keep touching more lives and helping people attain the quality of life they choose.

The website for the alkanizer claims that ionization makes water more hydrating, that its electrons make free radicals harmless, that drinking alkaline water will help flush the acidity and toxins out of your body, and that alkaline water balances today’s acidic diet and lifestyle and enable the body to heal naturally. Purportedly, the more alkalized water you drink, the healthier you’ll be. Among the numerous benefits of alkaline water claimed, are for treating:

Blood pressure

Osteoporosis

Constipation

Migraines

Urea stones

Faster healing

Acne

Fibromyalgia

Low energy/sluggishness

Morning sickness

Blood circulation

Diarhhea [sic]

Muscle aches after exercise

Water retention

Obesity

Acid reflux / heartburn

Arthritis

Nausea

Hyper-acidity

Colds

Hangovers

Body odor

Chronic fatigue

Cholesterol

Cancer

Stress

As covered at JFS repeatedly, all of this — ionized alkaline water, the need to drink lots of water for health, weight control or to flush toxins from the body and detox — is pseudoscience and quackery. You can learn more water pseudoscience at Dr. Stephen Lower’s H2O.con. The science on the other alternative modalities in his biotherapies can be researched by following the JFS links above and using the Google search tool on the right hand side bar of JFS. It is easy to understand why experienced medical professionals and these nurses might have been so concerned about the supplements and goodness knows what else patients in the emergency room were being sold.

Consequences

Medical professionals, especially nurses who are generally lower on the food chain, so to speak, are increasingly reticent to speak out when they see unsound, unethical or corrupt things going on in healthcare. It is hard to do the right thing. They know and see the consequences of following their consciences and the Code of ethics. This is not an isolated incident. Three California nurses were suspended after they reported a doctor who later admitted giving a lethal injection to a child and another nurse was threatened with firing after refusing to follow a doctor’s verbal order to administer morphine until a patient stopped breathing. A California nurse was threatened with firing for reporting unsafe patient care practices. A registered nurse in San Antonio was fired when she voiced concerns about unsafe staffing at a dialysis center. A San Antonio hospital posted a notice to employees that anyone who went outside the hospital with a report of unsafe or unethical practices violated the state’s “Safe Harbor Law” and would face discipline and even termination. This “violates the basic premise of whistle-blower laws — to free up an individual from the internal politics of the workplace,” wrote Linda R. Srungaram, RN, an experienced emergency room nurse.

Ann and Vicky courageously did the right thing and had the expertise to understand how patients could be harmed. Yet, they only came up against the interests of a single doctor. What do you think happens to nurses who might dare to report something unethical or corrupt that affects entire institutions, comes up against well-funded drug companies or counters powerful political interests?

If nurses following their professional ethics and good consciences are prosecuted for speaking out on behalf of patients, how many nurses will avert their eyes and shut their mouths when they see unsafe, unsound or unethical patient care or corruption, for fear of being hauled off on criminal charges?

All nurses and healthcare professionals will be watching what happens to these nurses in court next week.

But so should each of us.

© 2009 Sandy Szwarc