West Texas case gives credence to retaliation argument about Desai clinics

In Kermit, Texas, two nurses are fighting criminal prosecution and were fired after they tried to blow the whistle on a local doctor. What sounds like a tall West Texas tale is making Nevada nurses wonder: Could this happen here?

Two longtime nurses in their 50s reported to the Texas Medical Board in April that Dr. Rolando Arafiles improperly encouraged patients to buy herbal medicines from him and tried to use hospital supplies from the 25-bed county hospital to perform a procedure at a patient’s home, according to news accounts.

In their anonymous report to the medical board, the nurses sent information that included patient identification numbers for six patients, but not their names.

So far, so good, it would seem. They didn’t go to the press; they went to the Texas Medical Board. They did what they were ethically obliged to do — report alleged misconduct.

However, after the medical board told the doctor he was being investigated, he turned to Winkler County officials and filed a harassment complaint with the sheriff (also his patient). The sheriff identified the nurses — Anne Mitchell and Vicki Galle — and then the district attorney charged both with misuse of official information — a felony. Plus, the hospital fired them.

Kermit is truly a place where everyone knows your name. The population exceeds 5,000. (No, the county seat is not named after the frog; it was named after one of Theodore Roosevelt’s sons, a source of pride in Kermit.)

The case is now in the hands of a county judge and he was asked Wednesday to dismiss the charges, but had not ruled by late Friday.

At that hearing, news outlets reported that the sheriff and DA said they have evidence Mitchell used a county computer at the Community Center to harass the doctor. The CBS affiliate reported that Winkler County Sheriff Robert Roberts said he and his children are patients of Dr. Arafiles and the sheriff has used the doctor’s herbal supplements.

Columnists and editorial writers in Texas are raising the specter of good-old-boy cronyism driving the prosecution.

Debra Scott, executive director of the Nevada State Board of Nursing, said she’s received about 10 inquiries from Nevada nurses about the Kermit cases. "Nothing described in the news articles would be a violation of the Nevada Nurse Practice Act," she said. "We’ve been trying to reassure people because nurses have to be patient advocates, and if you’re not a patient advocate, you’re not doing your job."

Nevada law protects nurses from civil liability for reporting wrongdoing, if you report in good faith. The whistle-blower law for nurses was strengthened by the 2009 Legislature to provide additional protection from retaliation and discrimination.

While this thing in Kermit seems absurd, it does give credence to the argument that nurses and nurse anesthetists who observed unsafe practices at Dr. Dipak Desai’s Las Vegas endoscopy clinics didn’t speak up because they feared they’d be fired, no matter what the law said.

George Cox, a certified registered nurse anesthetist expert in the civil cases concerning hepatitis, believes nurses in Nevada should worry about what’s happening in Kermit. He argued Nevada’s whistle-blower laws are "ineffective in preventing retaliation" within employment settings, especially if the clinics are owned or managed by physicians and hospitals. "They will always find a way or a reason to punish the noncompliant nurse."

Cox believes that’s why nurse anesthetists "followed Desai’s directives, despite their basic knowledge that what they were doing was clearly inappropriate and dangerous. There was no financial incentive for the CRNAs to do what they were doing; Desai actually paid those folks one-half of the amount they should have been making given the services they were providing in those facilities. So, the only motive for their actions had to have been fear of job loss if they refused to comply."

Scott said the consequences are worse for nurses who don’t report. "The consequences of not reporting may include civil, administrative, and/or criminal charges, not to mention employment consequences," she said.

Any barrier put up to discourage nurses from reporting misconduct, thus compromising patient safety, needs to be torn down.

That’s why nurses and patients need to follow this big time story in Kermit, because Kermit is proof Las Vegas isn’t the only place where ridiculousness runs rampant.

Jane Ann Morrison’s column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison.