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Nurse acquitted following trial for filing complaint with medical board

January/February 2010 When Anne Mitchell, a registered nurse at Winkler County Memorial Hospital in Kermit, Texas, decided to file an anonymous complaint about a physician with the state medical board last April, the last thing she expected was to be arrested, lose her job, and find herself charged with a third-degree felony. But in a turn of events that different professional licensing experts have called "bizarre," "absurd," "unprecedented," and "outrageous," that's exactly what happened.

Mitchell—and another nurse who was ultimately dismissed from the case—collaborated on a letter to the Texas Medical Board, expressing concern about a physician with whom they worked, Roland G. Arafiles.

Pointing to six cases of concern, the two nurses said they saw a pattern of improper prescribing and surgical procedures, including a failed skin graft that Arafiles allegedly performed without having surgical privileges. The letter also noted that Arafiles was sending email messages to patients about an herbal supplement he sold on the side.

The two complainants said they were not signing the letter due to fear of retaliation. “Administration has made it clear that there will be no reporting of any problems without administrative, medical staff, and board notification,” Mitchell wrote.

“This would certainly create the opportunity for (the administrator) to remove me from employment. At the appropriate time I will speak with an investigator should the Medical Board determine that an investigation is warranted.”

The medical board, after receiving the letter, contacted Arafiles, who in turn contacted a friend who happened to be the Winkler County sheriff, Robert Roberts. Based on Arafiles’ complaint that he was being harassed, Roberts obtained a search warrant, seized the two nurses’ work computers, and located the letter.

Subsequently, the two nurses were arrested, fingerprinted, photographed, and indicted on charges of “misuse of public information.”

On February 11, a jury deliberated less than an hour and returned a verdict of “not guilty.” But the controversy over the arrest and prosecution continues.

The medical board was one of the agencies that expressed alarm. Executive Director Mari E. Robinson wrote to prosecutors, warning that the case would have “a significant chilling effect” on the reporting of malpractice. The Texas Nurses Association, which helped fund Mitchell’s defense, also filed a formal complaint with the Texas Department of State Health Services against the hospital.

The state presented witnesses who said Mitchell had made disparaging comments about Arafiles and refused to sign off on his original credentialing. However, the sheriff admitted that he didn’t check with the state medical board or investigate whether the complaints were true before seizing the nurses’ computers. Both the state and the defense’s witnesses agreed that nurses have a duty to report unsafe care.

In response to the acquittal, the American Nurses Association said it was satisfied at the vindication of Mitchell but “shocked and deeply disappointed that this sort of blatant retaliation was allowed to take place and reach the trial stage….Nurse whistle blowers should never be fired and criminally charged for reporting questionable medical care.”

A civil lawsuit in federal court has been filed by the nurses’ lawyers, charging the county, hospital, sheriff, physician, and prosecutor with vindictive prosecution and denial of the nurses’ First Amendment rights.