Nurse Whistle-Blower Not Guilty for Reporting Doctor

Jury rules Texas whistle-blower fired for confidential letter is not guilty.

February 8, 2010, 5:22 PM

Feb. 11, 2010— -- A Texas jury has found veteran nurse Anne Mitchell not guilty of harassment after she wrote a confidential letter to the Texas Medical Board complaining about a doctor she believed practiced shoddy medicine.

Her lawyer, John H. Cook IV, announced the verdict today on the fourth day of the trial in Andrew, Texas. Jurors took less than an hour to reach their verdict.

"We are glad that this phase of this ordeal has ended and that Anne has been restored to her liberty," Cook told media today. "But there was great damage done in this case, and this does not make them whole."

Mitchell, 52, could have faced 10 years in prison for doing what she believed was her obligation under the law -- to report unsafe medical practices.

The verdict could have had a profound effect on whistle-blowers in Texas and nationwide.

Mitchell had asssumed the letter she wrote to Dr. Rolando Arafiles Jr. was anonymous. Instead, he fired her after reporting her to the local sheriff -- a former patient and admirer of the doctor -- for maliciously ruining his reputation.

Police in Kermit, Texas, searched Mitchell's computer and found the letter, then charged her with "misuse of official information" in her role at Winkler Memorial Hospital, a third-degree felony in Texas under an abuse-of-power statute.

The case was so contentious that it set friends against one another in this oil and cow town of 5,200 near the New Mexico border, and had to be moved miles away to a state court in Andrew, where the trial got under way Monday.

Local residents worry about losing doctors and nurses. There are only a dozen nurses and three doctors in all of Winkler County.

"Who wants to move to the desert, you know?" resident Bryant Van Zandt told "Who wants to move out here in the middle of nowhere?"

"I think that nurses must be on the side of patients," added resident Phil Parks. "They spend more time with patients than doctors do."

"The doctor himself, he saved my life in October," said local resident Betty Edwards. " So I have very high aspirations for him."

Arafiles is still practicing medicine at Winkler Memorial Hospital.

The case sent shock waves around the country, particularly among the state and national nursing associations, which raised $40,000 for Mitchell's defense. They said they're afraid that if she is found guilty, there will be no watchdogs for unsound or unsafe medicine.

"This would be a true implosion for the nursing profession, because nurses might think twice about what they report," said Gwen Agabatekwe, a nurse who flew from St. David Medical Center in Austin to sit in on the pretrial hearings on the case.

"If they see something that's not right or unsound or unsafe, it's our obligation to report it," said the 54-year-old who is a member of the National Nurses Organizing Committee-Texas, which sponsored the whistle-blower legislation.

"We are here to protect and serve, much like policemen and firefighters," she told "If a professional person is not acting [safely], they need to be called on it."

Charges against Vickilyn Galle, a nurse who helped Mitchell write the letter and was also fired, were dropped by the prosecution last week.

All along, Arafiles said he was the victim in the case, even though he had been reprimanded several times by the hospital. "I'm the first one to testify today," was all he would say as he entered the courtroom Monday.

Fired Nurses File Civil Lawsuit

Mitchell and Galle, who both now live in New Mexico, have fired back with a civil lawsuit against the county, hospital, sheriff, doctor and prosecutor, accusing them of vindictive prosecution and denial of the nurses' First Amendment rights.

According to the Texas Occupations Code, "a nurse may report a licensed health care practitioner, agency , or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care."

Mitchell alleged that Arafiles had improperly prescribed herbal medicines he sold on the side and performed unauthorized surgical procedures.

In her letter to the medical board, she cited a skin graft she said he'd botched in the emergency room, where he did not have surgical privileges. She said Arafiles sutured a rubber tip to a patient's crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.

When the medical board notified Arafiles of the anonymous letter in April 2009, he went to Winkler County Sheriff Robert Roberts -- his former heart patient -- claiming he was being harassed.

Roberts ordered the search warrant to seize the nurses' computers and found Mitchell's letter

The sheriff, who has served the city for 18 years, has told reporters that Arafiles was "the most sincerely caring person I have ever met."

Two months later in June, the nurses were fired without explanation, according to Mitchell's civil suit.

Mitchell said in her suit that she and Galle began to worry about Arafiles in 2008, just after the hospital hired him, but administrators did not pay attention to their concerns.

They cited six cases "of concern," including recommending to patients that they use an herbal supplement he sold on the side.

But the prosecution insists that Mitchell had a history of "inflammatory" remarks that slandered Arafiles. To get a conviction, prosecutors had to prove that Mitchell used her position to spread information for a "nongovernmental purpose" with intent to harm the doctor.

Arafiles, 47, received his medical degree in his native Philippines and trained in Baltimore and Buffalo, and now practices family medicine at Winkler Medical Center.

The state medical board, which licenses and regulates doctors, had its own sharp words for the legal action.

"Our mission at the Texas Medical Board is to protect patients through the regulation of doctors," said spokeswoman Leigh Hopper. "That said, we are a complaint-driven agency and the only way that we learn that something may be amiss with doctors is when it comes from co-workers, doctors, peers in the hospital, patients and patients' families.

"We take it very seriously, it's our job," she told "It's sort of an alarming idea that somebody reporting a doctor of concern has to be afraid of criminal charges."

Texas Medical Board Chastised Doctor

The board gets 6,000 complaints and investigates about 2,800 of them a year -- at least one of them about Arafiles, who had a contract to oversee medical care at a weight-loss clinic.

A year before Mitchell's letter in April 2007, the Texas board slapped the doctor with a $1,000 fine and ordered him to complete additional "continuing medical education in the area of ethics, medical records and the treatment of obesity."

Arafiles was also prohibited from supervising physician assistants or advanced nurse practitioners.

According to that order, Arafiles supervised a physician assistant and oversaw the protocol for using phentermine -- an appetite suppressant and amphetamine -- for treatment of obesity that can cause hypertension.

The board said that he only spent 5 percent of his professional time at the clinic and did not "adequately document the physician assistant's efforts to counsel patients, regarding other, healthier treatments for obesity, other than medicine."

But, Arafiles' lawyer insisted, "The town has not heard the whole story."

"The only side of the story that the town has heard is that these are sisters of mercy, missionaries of peace," prosecutor Scott M. Tidwell told The New York Times.

"If you look at every Gallup Poll, nurses come out No. 1 in public trust and ethics every year except 2001, when it was the firefighters," Charles Idelson, spokesman for the California Nursing Association, which had been carefully watching the case, told

"The reason for that is when you are in a hospital bed and vulnerable, you can count on a nurse to the advocate for you."

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