As I said earlier, nurses and patient advocates all over the country may be tempted to breathe a huge sigh of relief after news that a Texas jury acquitted nurse Anne Winkler after she was arrested and tried for reporting physician misconduct to the Texas Medical Board. The case had drawn national attention, because, Mitchell’s conviction as the Texas Medical Board argued, would have had a “significant chilling impact” on health care workers’ willingness to report unsafe medical practice. With last Thursday’s verdict it seems the chill is gone.
Not so fast.
Although this acquittal is very good news indeed, serious issues still remain unaddressed. Namely the fact that Mitchell, like many other nurses and lower level health care workers, was fired when patient safety concerns that involved those higher up on the medical ladder. Like many other nurses, she is still without a job, and this verdict doesn’t alter an all too typical hospital industry response one iota.
This particular case – which is by no means an isolated one – began last spring when two experienced nurses who had worked at the hospital for decades –Anne Mitchell and her colleague Vickilyn Galle — became concerned about a physician, Rolando G. Arafiles Jr. at their hospital, Winkler County Hospital in West Texas. Arafiles, who had joined the staff in 2008, was performing surgical procedures without having surgical admitting privileges, had been prescribing medications improperly, and was trying to sell patients herbal supplements. They talked to their the administrators of their public hospital, and were told that the administrators were too concerned about their ability to recruit physicians to rural institutions to act on them. Since both Mitchell and Galle worked in patient safety roles, they felt they had no choice but to report their concerns to the state board of medicine.
The Sheriff of Winkler County – a former patient and personal friend of the Arafiles – got hold of what should have been anonymous Medical Board documents and then arrested the RNs involved for utilizing official documents for non-official purposes, a felony in the state of Texas. Fortunately the jury recognized that the subsequent trial wrecked of conflicts of interest – not to mention violations of Texas Whistleblower protection statute. Unfortunately, the acquittal does not address the fact that the default position of Winkler County Hospital was when in doubt fire or muzzle the nurse.
This default position seems to be an industry standard. Hospitals seem to worry more about keeping doctors happy no matter what happens to the other employees who are also critical to the delivery of safe patient care.
In 2002, an experienced nurse at Huntington Memorial Hospital in Pasadena, California dared to disagree with a first year doctor in training about a patient safety issue. When he complained about her “insubordination,” the hospital, which has signed on to major patient safety initiatives, fired her. She was also reported to the state Board of Nursing, which fined her $8000 and put her on probation for two years. Massachusetts has passed a whistlblower protection law – after Barry Adams, a nurse at Youville Hospital was fired for reporting problems that led to patient deaths. Nonetheless many nurses still face management retaliation when reporting concerns about a hospital higher up. The same is also true in other countries. In Australia and Canada, nurses were practically hounded out of their professions when they reported physicians whose incompetence or malpractice was responsible for the deaths of dozens of patients.
Even though, Anne Mitchell was acquitted, nurses and other hospital employees may still be too intimidated by the possibility of retaliation to risk publically advocating for patients. Texas has a whistleblower statute, but Winkler County Hospital’s action has hardly reinforced the message that whistleblowers will be protected. Mitchell and Galle are now suing the hospital, sheriff and county attorney. But will this acquittal, followed by a private lawsuit be enough to convince hospitals to support any and every employee who tries to protect patients from harm?