Whistleblowing Nurses Case Highlights Need for More Open Quality-of-Care Culture

March 03, 2010

March 3, 2010 — The recent case of 2 Texas nurses criminally prosecuted for reporting a physician to the state medical board over patient safety is a call for a healthcare system that does not treat truth-tellers like snitches, experts contend.

To James Conway, a senior fellow at the Institute for Healthcare Improvement, the term "whistleblower" is a symptom of a dysfunctional system that is afraid to scrutinize its own performance.

"In the world of healthcare quality and safety, we don't use the term 'whistleblower,' " Conway told Medscape Medical News. "Whistleblowing suggests that you have to leave your job and your role to do it. I believe in a nurse reporting what she sees. It's not whistleblowing. It's your job."

Alice Bodley, general counsel for the American Nurses Association, also believes the concept of a whistleblower ought to disappear. Instead, hospitals should encourage nurses and other clinicians to speak up about quality-of-care issues, said Bodley. "They'd feel as if they were contributing to the mission of the organization. It's a cultural shift."

She described progress toward that goal as "slow and incremental."

The 2 whistleblowing nurses in Texas experienced a measure of exoneration. The criminal charge was dropped against one, and a jury acquitted the other one. The story of how the nurses attempted to safeguard patients in their small Texas community, however, reverberates throughout an industry still learning how to deal with its imperfections. Better laws to protect whistleblowers, said Bodley, are part of the solution.

Authorities Seized Key Memo From Nurse's Work Computer

The Texas case centered on a memo that 2 veteran nurses, Anne Mitchell, RN, and Vickilyn Galle, RN, sent to the Texas Medical Board in April 2009 regarding Rolando Arafiles Jr, MD. All 3 at the time were employees of Winkler County Memorial Hospital in Kermit, Texas. Mitchell had been the hospital's compliance officer, and Galle headed up quality control and utilization management.

In the memo, the nurses laid out safety concerns about Dr. Arafiles' practice of medicine, including his use and sale of herbal medicines. The memo stated that, among other things, Dr. Arafiles emailed patients seen at a hospital clinic and encouraged them to buy herbal medicines not listed on the formulary.

The memo also stated that Winkler County Memorial Hospital granted staff privileges to Dr. Arafiles even though the Texas Medical Board had placed restrictions on his license. In 2007, the board ordered Dr. Arafiles to complete continuing medical education in ethics, medical records, and the treatment of obesity; prohibited him from supervising or delegating "prescriptive authority" to physician assistants or nurse practitioners, as well as supervising a surgical assistant; and fined him $1000.

This 3-year license restriction came after the board determined that Dr. Arafiles failed to adequately supervise a physician assistant in his work at a weight-loss clinic and failed to "make an independent professional judgement" about the appropriateness of protocols developed by the clinic owner to treat obesity. These protocols included prescribing phentermine for patients whose body mass index was sometimes even less than 30 kg/m2 and diuretics for patients who were not experiencing hypertension or edema. The board order, which Dr. Arafiles agreed to, stated that the physician signed off on records of a physician assistant even though they demonstrated that the clinic's practice did not always meet the standard of care.

The nurses' memo to the board said that hospital administrators had been warned about Dr. Arafiles. Although both nurses later said they had composed the memo together, it was written in the first person, with the author stating that she withheld her signature for fear of losing her job.

After the board contacted Dr. Arafiles about the memo, he asked Winkler County Sheriff Robert Roberts Jr — a friend — to investigate its origin. Sheriff Roberts managed to trace the memo back to the nurses, in part by obtaining a search warrant to seize the nurses' computers. The hospital fired Mitchell and Galle, who were charged days later with misuse of official information, a third-degree felony, with the intent to harm Dr. Arafiles.

The charge against Galle was dropped, but District Attorney Mike Fostel took the case against Mitchell to trial last month. A conviction could have led to a 10-year prison sentence, but the jury found Mitchell not guilty in less than an hour. One decisive moment may have been when Dr. Arafiles, in response to a question, testified that diabetics heal as well as nondiabetics.

"The audience gasped, and the judge admonished us," said Cindy Zolnierek, RN, director of practice for the Texas Nurses Association (TNA), who attended the trial. "Even laypeople know diabetics don't heal as well from injuries. That's why some end up with amputations."

The jury verdict did not put the legal wrangle to rest. Last year Mitchell and Galle filed a civil suit — which is still pending — in federal court against their former hospital, Dr. Arafiles, and county officials, charging that the defendants had, among other things, violated their freedom of speech. The nurses are seeking monetary damages to compensate for past and future earnings and benefits they've lost, as well as pain and suffering, and to punish the defendants for their actions. In a court filing, the defendants denied any wrongdoing, and stated that the hospital fired the nurses for "legitimate non-retaliatory reasons."

Trend Toward More Disclosure, Not Less

ANA and TNA officials have used words such as "absurd" and "outrageous" to describe the criminal prosecution of the Winkler County nurses. "Their license," said Zolnierek, "obligates them to advocate for patient safety."

Zolnierek calls the case of the Winkler County nurses an extreme one, noting that the trend among hospitals is toward more openness, not less. Still, nurses have plenty of reasons to look over their shoulder, she said.

"I know of hospitals that are committed to safety," she said. "But I also hear from nurses who are scared to death of being disciplined or retaliated against if they bring something up."

By underscoring the possibility of retaliation for whistleblowers, the Winkler County case has made Texas nurses more wary — the proverbial chilling effect — of disclosing patient-safety problems, said Zolnierek. But outweighing that caution, she said, is a heightened sense of professional unity among nurses when it comes to speaking up. "We have a duty to do the right thing."

"Patchwork Quilt" of Laws Afford Varying Protection for Whistleblowers

Healthcare providers who blow the whistle about patient safety problems are legally shielded — at least in theory — from reprisals in many states, including Texas. However, these laws are a "patchwork quilt" that provide varying levels of protection depending on where you live, according to ANA general counsel Alice Bodley.

"Some states limit protection to whistleblowers who are public employees," said Bodley. "Other state laws apply to private-sector employees as well as those in the public sector, but they may be limited to disclosing violations of law as opposed to substandard care."

Several federal statutes also can come into play, said Bodley. There's the Whistleblower Protection Act of 1989 that covers federal employees. The False Claims Acts shields those who report Medicare fraud, although it doesn't apply to clinical errors per se.

Nurses and other healthcare providers probably would be better off if a new, comprehensive federal whistleblower law replaced the patchwork quilt, Bodley told Medscape Medical News. She would word such a law to prohibit both public and private employers from retaliating or discriminating against employees who report substandard care, as well as outright illegalities.

However, it's not clear to Cindy Zolnierek of the TNA how whistleblower laws might have spared the 2 Texas nurses criminal prosecution, which is a rare form of retaliation, by all accounts.

"There's no law telling a prosecutor not to charge someone with a crime," Zolnierek said. "That's prosecutorial discretion. How do you legislate that?"

Whistleblower Laws Benefit Nurses and Physicians Alike

Nurses arguably need more whistleblower protection than other clinicians. For one thing, they're in a position to observe mistakes others may miss. While a rounding physician may spend only a few minutes a day with a hospitalized patient, a nurse can be at the bedside throughout the day. "In many situations, they're at the center of the healthcare delivery team," said Bodley.

At the same time, when a nurse questions the actions of a physician, a hospital may have a vested interest to "push back" against the nurse when its bottom line is at stake, said Bodley. "A physician could be bringing lots of surgical cases to the hospital."

That said, physicians also benefit from whistleblower laws because they, too, report subpar patient care to authorities. Protecting such physicians from reprisal is a cause célèbre for the Association of American Physicians and Surgeons (AAPS), based in Tucson, Arizona.

"Increasingly, hospitals are retaliating against physician whistleblowers to silence them and to end their careers," the AAPS stated in written Congressional testimony in 2007. "Hospital administrators frequently are more concerned about expanding their power and managing the hospital's business operations than improving patient care, and physicians who speak out for quality therein have become targets."

Interestingly, the AAPS posted an article on its Web site about the Winkler County nurses case shortly before Anne Mitchell's acquittal, suggesting that Dr. Arafiles was the victim of a vendetta.

"The broader question," the article stated, "is whether doctors or other Americans can be disparaged, subjected at a minimum to tens of thousands of dollars in defense costs, and even deprived of their livelihood, on the basis of false, bad-faith allegations — while the complainant hides behind anonymity, immunity, and a presumption that she is only trying to protect the public."

Other physicians, however, sided with the 2 nurses and contributed to their legal defense fund, noted Cindy Zolnierek.

What One Organization Did to Create a Culture of Disclosure

To move beyond the shadowy world of whistleblowing, James Conway at the Institute for Healthcare Improvement makes the now-familiar argument that healthcare organizations must think less in terms of blaming and stigmatizing individual clinicians for mistakes, and more in terms of identifying and fixing the larger systems that make mistakes more likely.

In advocating for a climate of nonpunitive openness about medical errors, Conway does not speak as an academic removed from the fray. He was chief operating officer at Dana-Farber Cancer Institute in Boston, Massachusetts, from 1995 to 2005, having come aboard just as the center was painfully examining itself in the aftermath of the accidental chemotherapy death of Boston Globe healthcare reporter Betsy Lehman in 1994. Her death, said Conway, was a seminal event in the patient safety movement. No one might have ever known why Lehman died had not a hospital clerk told her superiors that she suspected a chemotherapy overdose, according to Conway.

"She was listened to, and the rest was history," said Conway. "Dana-Farber vowed to become one of the safest hospitals in the country, and many people believe that we did."

Under his watch at Dana-Farber, Conway made several changes to encourage disclosure of mistakes, or mistakes in the making. He established a telephone hotline where employees could report safety issues anonymously. He appointed 3 ombudsmen to hear employee complaints, questions, and tips about everything from sexual harassment to subpar care. In turn, the ombudsmen counseled employees on how to report their concerns to Dana-Farber administrators. But if employees decided to keep quiet, they were protected.

"Unless ombudsmen were told about something criminal in nature, they didn't reveal an employee's identity," said Conway. "But they did keep me informed about trends they were seeing."

In addition, Dana-Farber expanded and computerized its system for reporting and analyzing clinical errors.

"The only way you can fix problems is if you know you have them," said Conway. "You have to become an expert in looking for trouble."

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