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Nurses Face Jail Time For Reporting An Unethical Physician

September 24th, 2009 by David H. Gorski, M.D., Ph.D. in News, Quackery Exposed
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Although I have criticized state medical boards for not doing enough to protect patients from physicians who practice pseudoscientific medicine and quackery, they do nonetheless serve a purpose. Moreover, critical to medical boards doing even the limited amount of enforcement that they do is the ability of health care providers or other citizens to submit anonymous complaints against physicians who are not practicing up to the standard of care or who may be in other ways taking advantage of patients.

Unfortunately, the other day I found out about a very disturbing case in Kermit, Texas. Two nurses who were dismayed and disturbed by a physician peddling all manner of herbal supplements reported him to the authorities. Now, they are facing jail:

In a stunning display of good ol’ boy idiocy and abuse of prosecutorial discretion, two West Texas nurses have been fired from their jobs and indicted with a third-degree felony carrying potential penalties of two-to-ten years’ imprisonment and a maximum fine of $10,000. Why? Because they exercised a basic tenet of the nurse’s Code of Ethics — the duty to advocate for the health and safety of their patients.

The nurses, in their 50s and both members of the American Nurses Association/Texas Nurses Association, reported concerns about a doctor practicing at Winkler County Memorial Hospital in Kermit. They were unamused by his improperly encouraging patients in the hospital emergency department and in the rural health clinic to buy his own herbal “medicines,” and they thought it improper for him to take hospital supplies to perform a procedure at a patient’s home rather than in the hospital. (The doctor did not succeed, as reportedly he was stopped by the hospital chief of staff.)

How can this be? This is how:

The nurses Vicki Galle, RN, and Anne Mitchell, RN, say they were just trying to protect patients when they anonymously reported their concerns April 7 to the Texas Medical Board (TMB). The RNs believed a physician wasn’t living up to ethical practice standards at the 15-bed county hospital where they worked.

The report indicated Rolando Arafiles, MD, one of three physicians on contract with the hospital, improperly encouraged patients at the Winkler County Memorial Hospital emergency department and the county’s rural health clinic to buy herbal supplements from him.

However, because the two nurses worked for a county hospital – and included medical record numbers of the patients in their letter to the TMB in April – the county attorney’s office indicted them on “misuse of official information” – a third-degree felony that carries potential penalties of 2-10 years’ imprisonment and a maximum fine of $10,000. Additionally, the prosecution asserts the nurses used patient records as part of the evidence they offered to the TMB to “harass or annoy” Arafiles.

Part of what’s so disturbing about this is that complaints to the medical board are supposed to be confidential. Indeed, this sort of retaliation is exactly why such complaints are confidential. Why do I say “retaliation”? Well, certainly there is the suspicious timing of how they were arrested:

Mitchell and Galle, both long-time nurses at the facility, were fired from their positions and were subsequently arrested June 12, just 5 days past the 60-day window that could have been part of the defense to prove retaliation. The two nurses are free on bond of $5,000 each.

Gee, you don’t think that timing was intentional, do you? If that’s not enough, take a look at this account:

The nurses went up their chain of command with their complaints. They got nowhere with their 25-bed rural hospital. So they anonymously turned the doctor into the Texas Medical Board using six medical record numbers of the involved hospital patients .

When the medical board notified the physician that he was under investigation for mistreatment and poor quality of care, he filed a harassment complaint with the Winkler County Sheriff’s Department.

To find out who made the anonymous complaint, the sheriff left no stone unturned. He interviewed all of the patients whose medical record case numbers were listed in the report and asked the hospital to identify who would have had access to the patient records in question.

At some point, the sheriff obtained a copy of the anonymous complaint and used the description of a “female over 50″ to narrow the potential complainants to the two nurses. He then got a search warrant to seize their work computers and found a copy of the letter to the medical board on one of them.

So let’s get this straight. Two nurses, alarmed that a physician was inappropriately peddling herbal remedies that he sells to patients in the emergency room of a small rural hospital in the middle of Nowhere, Texas, try to report him through the chain of command. From here on out, I’m going to try to read between the lines a bit, but I bet my speculation is not too far from the truth. My guess is that Dr. Arafiles is probably either popular or desperately needed in Kermit–or both–and that he’s well-connected in the town. Well, actually, that last part is almost certainly true, as apparently Dr. Arafiles is buddies with the Sheriff (Robert Roberts) and–who knows?–probably Winkler County Attorney Scott Tidwell as well for all we know. The Sheriff, tipped off by his buddy that someone at the hospital was complaining about his questionable choice of venue to peddle his herbal woo, went after Mitchell and Galle as though they had gone on a four county shooting spree and and then, after he figured out who they were, threw the book at them, even though they had no justification in doing so:

The Texas Medical Board sent a letter to the attorneys stating that it is improper to criminally prosecute people for raising complaints with the board; that the complaints were confidential and not subject to subpoena; that the board is exempt from federal HIPAA law; and that, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners.

Excerpts from this letter include:

• Information provided by an individual to the board… is information used by the Board in its governmental capacity as a state agency…Information provided triggering  a  complaint or furthering and investigation by the Board is information provided for a governmental purpose – the regulation of the practice of medicine.
• …under federal law, the TMB is exempt from the [HIPAA] requirements; therefore, the provision of medical documentation with patient names on them to the Board is not a violation of [HIPAA].

And it’s true. In order to encourage whistleblowing and minimize the chances of retaliation, HIPAA rules don’t apply to complaints to state medical boards. Regardless of the merit of Mitchell and Galle’s complaint, they were well within their rights to report Dr Arafiles to the Texas Medical Board. It doesn’t matter whether they had first gone through the chain of command or not, regardless of what hospital flunkies or apologists for the sheriff say.

This case is bad. Real bad. Nurses and other health care professionals are reluctant enough as it is to report a bad doctor or a doctor peddling dubious therapies as it is. What makes this case particularly outrageous is not only because it appears to be a horrible abuse of power by Sheriff Roberts, but, even worse, it sends the clear and unmistakable message to nurses in Texas: Don’t get out of line or the medical powers that bewill make you pay. They will find out who you are, no matter what it takes to do so, and then they will do everything in their power to retaliate. They’ll even try to throw you in jail if they can figure out a rationale to do so, legal or not. It’s hard enough to go against a doctor as it is, particularly in small towns, where doctors are often considered pillars of the community, making it hard enough to risk the disapproval that would be likely to be directed at any whistleblower. Without legal protections against prosecution for reporting a doctor to the board, confidentiality means nothing if there is someone in a position of power who is determined enough to shred the confidentiality of the complaint (like a county sheriff) and apparently ready to abuse his power to retaliate against the nurses making the complaints.

Even though I’m a bit late to the game, it disgusted me to read about this case. If we are to protect the public from physician misconduct, be it quackery, breaches of ethics, inappropriate sexual behavior, fraud, or whatever, there must be protections for the complainants against retaliation by hospitals or whomever. Quite correctly, the Texas Nurse’s Association is fully backing Mitchell and Galle, and Mitchell and Galle are also filing a civil lawsuit in federal court against the hospital (Winkler County Memorial Hospital), the county attorney, and the sheriff. The complaint alleges:

Specifically, Winkler County had a policy to prohibit any adverse report without first getting the approval of the Board of Control of Winkler County Memorial Hospital and the Medical Staff. This discouraged employees from publicly reporting matters of public concern regarding patient safety and patients’ health and welfare as to how they were being treated that would cast Winkler County or Winkler County Memorial Hospital or Rolando G. Arafiles, Jr. in a negative light.

This sort of miscarriage of justice should not be allowed to stand. TheTexas Nurses Association has set up a legal defense fund for these nurses (a link is on the TNA home page), and I urger SBM readers to contribute. I have. I also encourage SBM readers to write polite letters of protest to the Winkler County District Attorney’s Office. It is a travesty that this retaliation against nurses just trying to do their duty for their patients has been allowed to continue this long and this far. We should do whatever we can to make sure that this pure power play to put a couple of uppity nurses back in their place does not stand.

Funding Health Reform From Savings Associated With Curtailing Waste, Abuse & Fraud?

September 21st, 2009 by Emergiblog in Better Health Network, Health Policy, Opinion
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Well, I lead a double life but it isn’t out dancing in formal wear!

“There is time for only fleeting thoughts about that dance you’ll attend during off duty hours.”

There isn’t even time for that.

Besides, who attends a dance during on duty hours?

Well, I guess the most important thing is that our hands are “soft, smooth and free from redness” because “your patients like it and your date expects it”.

Oh yeah?

The day they use a hand sanitizer thirty times in a shift and wash their hands another twenty, they can talk to me about soft hands.

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My husband won’t watch football with me because I tend to get hyped up and throw things at the TV when I get upset.

That explains why there were Notre Dame pom poms and a Cleveland Browns jersey at the base of the set this weekend.

I also like to talk back at the President when he is speaking on TV. Usually it’s things like “Say WHAT?” or “Give me a break!” “Get. A. Clue!” is usually a good one.  This last speech, the one to Congress about health care, was no exception.  My first comment came a bit into the speech when I noted a few times that “I haven’t heard a single thing I disagree with yet” and “he’s right on that point”.

I was afraid hubby was going to need smelling salts.

But I’m like, “let’s hear how he is going to pay for this…let’s hear him out”.

And then I heard it.

And then he lost me.

*****

There were two comments that I could not let go. I looked them up in the text of the speech to make sure I had heard them correctly.

“…we’ve estimated that most of this plan can be paid for by finding savings within the existing health care system – a system that is currently full of waste and abuse.”

“The only thing this plan would eliminate is the hundreds of billions of dollars in waste and fraud…”

Hundreds of billions of dollars? Billions? With a capital “B”?

Waste. Abuse. Fraud.

This means that in order to pay to the proposed health care reform, we have to find enough waste, abuse and fraud to cover expenses.

*****

But I have some questions.

What is the definition of “waste”? To the extent that “waste” means inefficient bureaucratic practices that use up monetary resources, I can get on board with that.

Abuse?  What kind of abuse? Using the system inefficiently, like calling an ambulance for a stubbed toe? Remember, the President is using the term “abuse” to represent a potential income stream for the new system, so it would have to encompass behaviors that spend money that should not be spent.  Money is spent on patient care, so is he talking about patients abusing the system?

And then there’s fraud…

That’s a crime, folks.

Hundreds of billions of dollars in waste and fraud?

The President must think that there are an awful lot of criminals in the health care system.

So what’s my point?

*****

My point is this: funding for the new proposed health care system (see “most of this plan…”, above) is based on finding waste, abuse and fraud.

What happens when all the waste is taken out, all the abusers are stopped, the fraudsters jailed and the system needs more funding? Does that not make it imperative that we keep finding waste and abuse and fraud? Does that not mean that what constitutes waste, abuse and fraud must be constantly expanded to make up for rising costs?

This can’t be good.

I am in total agreement that our system can be streamlined, big time.

And maybe we could find enough money in waste, abuse and fraud to make it pay for itself, but I doubt it.

If we could do that, wouldn’t we have done it already with Medicaid and Medicare? The budgets for both are getting slashed on a regular basis. Drop the waste, abuse and fraud in those programs and then come back and tell me how much better their budgets are.

If  we  can’t do it in an existing government-provided system, how on earth do you expect us to believe it can be done on a larger scale?

*This blog post was originally published at Emergiblog*

Hidden Food Ingredients: Don’t Believe The Health Hype

September 18th, 2009 by BarbaraFicarraRN in Better Health Network, Health Tips
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Do we need to be a detective to find out which foods are healthy?

Maybe…

In yesterday’s Washington Post,  Jennifer LaRue Huget, blogger for “The Check Up” writes about the new unhealthy line of Kraft Lunchables.

Kraft calls the new line “wholesome,” but are they?

Turkey and Cheddar Sub Sandwich seems like it could be a healthy choice, but actually it is filled with fat, sodium and sugar.  Here’s a complete list of ingredients that may shock you.

Digging a little deeper

I’m curious now to find out what’s behind the “New Deep Dish Cheese Pizza.”  Here’s how it’s described:

You won’t have to dig deep for our Deep Dish Pizza, made with Kraft 2% Mozzarella and 2% Cheddar, deep dish crust made with whole grain, Tombstone Pizza Sauce, Tree Top® Applesauce, Mini Nilla Wafers, spring water and Tropical Punch Kool-Aid Singles.

It doesn’t sound so bad, does it?  Low fat cheese, whole grain crust, pizza sauce, applesauce, mini Nilla Wafers, spring water; what’s so bad about that?  One more ingredient includes Tropical Punch Kool-Aid Singles.  Hmm…what was wrong with just the water?  Why add all that sugar?

Okay, I’m digging deeper now to read the ingredients.  Well, take a peek, and you decide.  The long list of ingredients isn’t healthy.  The Deep Dish Pizza is filled with fat, calories, sodium, cholesterol, and sugar.

Read the Ingredients

It’s really important to read the ingredients and not just the label.  The packaging and wording are created in such a way to capture your attention and it gives the appearance that it’s healthy, but in fact it is not.

Playing detective

You could actually make a game out of this with your kids.  Take them food shopping with you and have them take the “Food Label Challenge Test.”  (I just made that up).  Show them the package and the front label, ask them if they think it’s healthy or not.  Have them read the ingredients, you may be surprised at what you find!  The little gumshoes may enjoy the challenge.

So remember, make sure the next time you’re out food shopping, read the ingredients, not just the front label. Playing detective might not be such a bad idea; you may be surprised at what you find in your foods.

*This blog post was originally published at Health in 30*

Emergency Medicine: Census and Sensibility

September 14th, 2009 by Emergiblog in Better Health Network, Opinion
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Emergency has something in common with Labor & Delivery.

Neither department has control over their census.

Medical/surgical, telemetry units and ICUs have a finite number of beds. When they are full, they are full; they cannot physically expand to more beds.

ED patients and laboring women are never turned away no matter how full the department may be. Oh, the ED may triage and L&D may send a patient in early labor home, but in both cases, eventually, all will be seen.

Labor and delivery has one advantage over the ED.

They can have someone on call.

I’ve never worked in an ED that has had an “on-call” nurse.

****

I will never understand the logic behind staffing an ED based on the previous 24 hour census.

If the ED does not meet a pre-determined number of patients on one day, the break nurse for the next day is canceled and there is much wailing and gnashing of teeth as the department goes over budget.

Never mind that the acuity level of the patients who were seen was through the roof. Or that 50% of them were admitted. Or that the next day, acuity again sky high, the nurses go without meals/breaks and the department is required to give penalty pay. Again, there is much wailing and gnashing of teeth for having to pay this penalty, a penalty that would never have been required had the break nurse not been canceled.

****

Now if the ED is slow, staff can always go home early. But not too early, because you never know what is coming in through the doors. So maybe an hour, 90 minutes early, knowing that the remaining staff can handle whatever they need to handle until the next shift comes in.

But what happens when the patients overwhelm the staff, both in acuity and numbers?  Ambulance diversion doesn’t stop the walk-in critical patients. The MIs and the possible CVAs. The GI bleeders. The potentially septic. Trying to get patients out of the department and up to the floor doesn’t work when the floor won’t take the patient for four hours because it would put them “out of ratio”.

This is a huge issue on the night shift. When there is only one unit clerk/registrar, two nurses and an ED tech after 0300.

Of course, at night it is feast or famine.

Either the feces hits the proverbial fan or…it doesn’t.

Which is exactly why we need a nurse on-call.

The ED needs flexible staffing that accounts for those times when the acuity level/census is overwhelming. Not canceling the extra break nurse is one way of doing that on days and evenings; using the on-call system is another way that could be utilized at night. If it can be done in L&D, why can’t it be done in the ED? Surely the money saved in penalty pay for missed breaks and meals would make it budget neutral.

All I know is that trying to drop staff in an ED based on what happened the previous 24 hours makes zero sense.

(And don’t even get me started on why nurse-patient ratios are treated like unbreakable rules on the floors, but it’s okay for the ED to be waaaaay out of ratio and nobody blinks….that’s another whole post!)

*This blog post was originally published at Emergiblog*

A Nurse Asks: What Are You Doing For Your Midlife Crisis?

September 13th, 2009 by MotherJonesRN in Better Health Network, Opinion, True Stories
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Nurse Andrea Bartlett is literally having a meltdown. She is in the midst of her midlife crisis. Nurses like her are easy to spot. She’s having a hot flash, note the hand to her forehead and the look on her face that says, “Crap, I’m going to pass out,” and she’s reliving her hippy Peace Corps days by working as a Congo nurse. I bet she is kicking herself for leaving home, especially at her age. After all, who in their right mind would give up their Mac computer and iPhone.

It’s official. I’m having my midlife crisis. I knew I had hit crisis mode the day one of my patients tried eloping from the unit. I saw the patient racing down the hallway towards the door, and my brain said, “Run, catch the patient,” and, after a few strides, my joints started screaming, “Brain, we hurt. Go to hell.” Fortunately, the techs and a few nurses, all of whom are youngsters, ran right pass me like little gazelles and effortlessly caught the patient before he bolted off the unit. I felt like a relic. I wanted to cry all day long.

If anyone over the age of 55 tells you that they aren’t going through their midlife crisis, they are in denial, or they are lying through their teeth. I started making some changes at home after that fateful day at work. I can’t afford a facelift, a tummy tuck, or a red sports car, so I started redecorating my living room, a la Peter Max. I said goodbye to my Martha Stewart country living room by replacing everything that was made from gingham and lace with burgundy silk pillows, hand blown glass bottles, and Bakhtiari carpets. I even scored this 1960s leather chair, matching footstool, and hoop lamp from one of my best friends. Yeah, they’re groovy. I can’t wait for my husband to finish off my bookshelves. Maybe I’ll start a new hookah collection when he’s done.

Having a midlife crisis isn’t just about getting gray hair, saggy boobs, and a wider girth. It’s about getting to know who you really are as you hit the midpoint of your life. This midlife journey is especially bewildering and fear provoking for nurses. Everyone is in a big hurry to get an advanced nursing degree before “it’s too late.” Too late for what? I see nurses frantically checking out school websites, and exchanging information about online classes. Some nurses want to expand their knowledge base so they won’t have to work as bedside nurses anymore, while others want to go back to school because of a mandate put out by the ANA. The ANA doesn’t recognize anyone without a nursing degree as a professional nurse. The ANA can kiss my ass. I’m not going back to school, and I refuse to burst one brain cell over a class assignment that has no relevance in my life.

God willing, I have at least twenty-five years before I check out of the world and I plan to have some fun before I head for the Pearly Gates. My short-term goal is to buy the new Beatles Boxed set in stereo and to finish redecorating my house. I’m going to light up some incense, play my tunes, and party on. My long-term goal is to make love, not war, get on the peace train, and to follow the sun.

Can you dig it?

*This blog post was originally published at Nurse Ratched's Place*