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juryFebruary 11, 2010 -- Today the New York Times ran a good piece by Kevin Sack reporting that a West Texas jury had just acquitted nurse Anne Mitchell at the end of a four-day trial for allegedly misusing official information in reporting a physician colleague's unsafe practices to the state medical board. The article is mostly about events immediately surrounding the acquittal. But it does point out that many advocates have been concerned about the case's potential chilling effect on whistleblowers like Ms. Mitchell, and it even consults a national nursing leader, American Nurses Association president Rebecca Patton, who calls the verdict a win for patient safety. The piece might have made clearer that it's not just good policy for nurses to be free to report bad care, but also their professional obligation as patient advocates. The article makes it easy for readers to conclude that the case was brought for questionable reasons, explaining that the physician, the sheriff, and the prosecutor who brought the case had close business and/or personal ties in the small community. The piece might also have mentioned the larger context of nurse-physician relations; this is an extreme case, but of course it is common for physicians to have so much more social and economic power than their nurse colleagues that it can require a great deal of courage for nurses to effectively challenge poor care. And the report might have referred to the legislative status of nurse whistle-blowers in Texas, and proposals for reform. Still, on balance, we commend Mr. Sack and the Times for their helpful reporting on the case.

The article is headlined "Whistle-Blowing Nurse Is Acquitted in Texas." It reports that the jury took only an hour to acquit Mitchell of the felony, and that the jury foreman said the acquittal was unanimous on the first ballot, with the jury questioning why Mitchell had even been arrested (other press accounts said that at least some of the jurors went over and hugged Mitchell after the verdict). The prosecution alleged that the veteran Winkler County Memorial Hospital nurse had

used her position to obtain and disseminate confidential information -- patient file numbers -- in her letter to the medical board with the intent of harming Dr. Rolando G. Arafiles Jr. The prosecutor argued that state law required that reports of misconduct be made in good faith, and that Mrs. Mitchell had been waging a vendetta against Dr. Arafiles since his arrival at the hospital in April 2008.

The piece says Mitchell and a nurse colleague, Vickilyn Galle, wrote an anonymous letter about Arafiles to the state medical board, which regulates physician practice. They were fired from the hospital in June 2009, shortly before both were indicted; the charge against Galle was dropped before the trial. The third-degree felony charge of "misuse of official information" was reportedly punishable by up to 10 years in prison and a $10,000 fine. The trial took place in Andrews, in another county, rather than the town of Kermit where the hospital was located, because the prosecution had so "polarized" the local community. The report notes that "the case was investigated by Sheriff Robert L. Roberts Jr., a friend and admiring patient of Dr. Arafiles, and tried by the county attorney, Scott M. Tidwell, a political ally of the sheriff and, according to testimony, Dr. Arafiles's personal lawyer." Getting the picture?

The piece includes some detail about the trial itself. Some witnesses reportedly testified that they had "heard Mrs. Mitchell refer to Dr. Arafiles, a proponent of alternative medicine and herbal remedies, as a 'witch doctor.'" However, the Times explains, "other nurses" supported Mitchell, noting that "internal complaints were not dealt with adequately by the hospital's administration." The piece also notes that defense attorney John H. Cook IV presented considerable evidence supporting Mitchell's concerns:

He walked the jury through a series of questionable cases involving Dr. Arafiles, including one in which the doctor performed a skin graft in the hospital's emergency room, despite not having surgical privileges, and another where he sutured a rubber tip to a patient's crushed finger for protection.

The piece includes after-trial comment from key players. Mitchell said that "she had been trying only to protect her patients," noting that it's every nurse's duty "to take care of patients," as she wiped away "tears of relief." Sheriff Roberts "said he was disappointed in the verdict but did not regret the prosecution," suggesting that the case had never been about discouraging nurses from reporting bad care, but encouraging them to do it "properly." And Mitchell's lawyer Cook "pivoted quickly" to the federal civil suit the two fired nurses have filed against the county, the hospital, and "various officials," alleging First Amendment and due process violations.

And even though the piece is a primarily a report about the acquittal, it includes a little of the larger policy context.

The uncommon prosecution had ignited deep concern among health care workers and advocates for whistle-blowers about a potential chilling effect on the reporting of malpractice. ... Some watchdog groups worried that the prosecution would stifle reporting of improper medical care, regardless of the outcome. But Rebecca M. Patton, president of the American Nurses Association, called the verdict "a resounding win on behalf of patient safety." Ms. Patton said, "The message the jury sent is clear: the freedom for nurses to report a physician's unsafe medical practices is non-negotiable."

These passages give readers a basic sense of the implications of the case. As nursing advocates have noted, patients are in jeopardy if care givers are too intimidated to report serious threats to those patients, from whatever source. In fact, though this piece does not clearly say so, such patient advocacy is a central part of nursing theory and practice. Mitchell's comments about her duty to take care of patients gets closest to this, but it might have been made clearer that nurses are actually required, legally and ethically, to do what is necessary within the law to protect patients from threats such as those alleged here. Still, it's actually novel that the piece consulted a nursing leader about what the case meant, which is not something you can take for granted in mainstream press pieces. Reporters often seem unaware that such leaders or national nursing organizations even exist, and they consult physicians or non-nurse health policy experts about issues that relate primarily to nursing. Rebecca Patton's comments here make the important point about the vital importance of nurses being free to keep patients safe through reporting of poor care.

Although the nurses in this case seem to have faced a perfect storm of entrenched local political power--with not just hospital management but the sheriff and prosecutor closely aligned with the physician. Even when such conditions are not present, it is hard for nurses to advocate effectively when physicians continue to have so much more social and economic power. Many if not most nurses would have been too scared to complain to hospital administrators or to send the letter to the medical board that these nurses did. And one key reason for that is that the hospital's reaction was sadly typical, and not just in rural communities with a small, integrated power structure. Hospital administrators often see physicians as expert revenue generators, and nurses as troublesome cost centers, even though hospitals exist primarily to provide expert ongoing nursing care (patients who do not need that can be treated on an outpatient basis). So nurses often do not receive the support they need in advocating for better care in a variety of contexts. Nurses are well aware of this, and many self-censor or try to achieve their goals indirectly.

Texas nurses have been advocating for stronger whistle-blower protection for some time. For instance, on August 22, 2009, the Houston Chronicle ran an op-ed by Linda Record Srungaram arguing that the indictment of the two nurses showed the need for better whistle-blower protections. Srungaram clearly explained nurses' professional duty to act as patient advocates, and she argued that Texas's current "Safe Harbor Law" was inadequate to protect whistle-blowing nurses or their patients. She urged state legislators to adopt stronger protections contained in proposed legislation supported by the National Nurses Organizing Committee, the new national union founded by the California Nurses Association. Obviously, the fact that the nurses were not convicted in this case does not change the legislative landscape. And as this report did suggest in noting that some advocates fear there will be a chill "regardless of the outcome" of the case, the fact that the case was brought at all may make the situation worse.

The report might have mentioned some of these additional points, but as a relatively short piece about the acquittal, it could not get deeply into the subject. On the whole, the article was a balanced and informative report about a verdict that is, as Rebecca Patton noted, a victory for nursing advocacy. We thank Mr. Sack and the Times.

See the article Whistle-Blowing Nurse Is Acquitted in Texas by Kevin Sack, published February 11, 2010 on the New York Times website.



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