LAWLESS LAW ENFORCEMENT

The persecution - oops - I mean prosecution of a West Texas hospital nurse for exposing the malpractice of a medical doctor has received nationwide coverage by the media. She had reported him to the state medical board for inappropriate patient care, including sewing a rubber tip not approved for humans onto a patient’s crushed finger and urging patients to buy Zrii, a questionable nutrition supplement sold by using a pyramid-marketing scheme.

The nurse has now been acquitted by a jury of a felony for which she never should have been charged. Why did she lose her job and face the possibility of doing time in prison for up to 10 years? All because the local sheriff was a good buddy of the doctor she blew the whistle on.

Rick Casey of the Houston Chronicle has written an excellent column that gives us the scoop on what was really behind the lawless prosecution of this persecuted whistle-blower. Here it is:

GIVE SHERIFF AND DA OWN MEDICINE
By Rick Casey

Houston Chronicle
February 12, 2010

A West Texas jury Thursday promptly acquitted a nurse charged with a felony for filing a complaint with the Texas Medical Board against a doctor who had a history of ineptitude at the hospital where she worked.

Now it's time for the sheriff who investigated her and the district attorney who prosecuted her to be brought to justice. We can only fantasize.

The story began last April when Anne Mitchell, a veteran nurse at a hospital in Kermit, wrote a letter to the Medical Board asking it to investigate Dr. Rolando Arafiles Jr. after hospital administrators failed to do so. She did not give many details but did give the ID numbers of relevant patient files involving the doctor.

She told the board she was “over 50, female, and have been employed by this facility since the 1980s,” and that she could not sign the letter because she feared being fired.

Her fear was justified.

The Medical Board already knew Arafiles. In 2007 it had placed him under certain restrictions for three years. Two days after receiving the anonymous letter, the board notified him of the complaint and some of its details.

Arafiles allegedly took the letter to Winkler County Sheriff Robert Roberts, who happened to be a golfing buddy who credited Arafiles with saving his life after a heart attack. In addition, according to testimony at trial, he joined in pushing the doc's $40 bottles of herbal supplement, even holding meetings at Pizza Hut to recruit other salesmen.

The sheriff wrote the Texas Medical Board asking for a copy of the anonymous letter for a criminal investigation. Medical Board officials assumed he was investigating the doctor, according to a spokeswoman.

MAKING ASSUMPTIONS

In a letter to him, they said that under the law the letter could not be released except to a law enforcement official “conducting a criminal investigation of a license holder of the TMB.” Nurses are not licensed by the Medical Board.

“It is our understanding that your agency is a bona fide law enforcement agency and is conducting a criminal investigation of a license holder of the TMB,” the letter said, adding, “If we are incorrect in any of these understandings , please advise us immediately.”

Instead of correcting the board's assumptions, the sheriff used the letter to identify the nurse who was over 50 and had been with the hospital since the 1980s. He obtained a search warrant of her computers and found a copy of letter.

He also questioned all the patients to whom the complaint referred.

On June 1 hospital officials abruptly fired Mitchell and Vickilyn Galle, who had admitted to helping draft the complaint.

Ten days later the two women were indicted on charges of felony “misuse of official information,” which carries a sentence of up to 10 years.

Within weeks however, District Attorney Mike Fostel offered a deal: The indictment would be dropped if the women agreed not to sue the county or its hospital.

Smart man, but it didn't work. The nurses filed a federal lawsuit.

Having to actually go to trial, County Attorney Scott Tidwell gamely told the New York Times: “The only side of the story that the town has heard is that these are sisters of mercy, missionaries of peace. The town has not heard the whole story.”

‘GRAVE CONCERN’

The jury did in three days of testimony, then took less than an hour to find Mitchell innocent. (The case against Galle had been dropped.)

Meanwhile the Texas Medical Board has expressed its “grave concern” about the indictments to Fostel and Tidwell. And national nursing organizations, outraged, raised $40,000 for the women's defense, according to the Times.

Now there's a good chance the taxpayers of Winkler County will pay a price to either settle the nurses' lawsuit or let another jury express its outrage.

The doctor remains under investigation by the Medical Board.

But what about the sheriff and the prosecutors, who appear to have engaged in “misuse of official information” to indict two women who were trying to protect patients?

History offers little hope that the state or the bar will hold them accountable. Maybe the voters will.