Blame the Whistleblower?

When a West Texas sheriff criminally charged a nurse who reported an unethical doctor to the Texas Medical Board, it sent shockwaves through the nation’s nursing community. But nurse Anne Mitchell’s acquittal on Thursday has done little to calm the furor.

Uncertainty remains over how a sheriff essentially hoodwinked the Texas Medical Board (TMB) into turning over confidential complaint records — and whether the risk of charges will stop nurses and patients from reporting doctors in the future.

"The safety net has really been taken away by what happened here," says Colleen Carboy, a Dallas-area nurse and attorney. “Now, nurses will have to make that choice: Do I risk my family, my financial situation, my career to go out on that limb?”

Mitchell’s saga began in April, when she and another nurse in the town of Kermit sent an anonymous letter to the Texas Medical Board raising concerns about Dr. Rolando Arafiles. The nurses believed he was making poor surgical choices for patients and was pressuring them to buy herbal supplements that he was selling on the side.

In keeping with Medical Board policy, Arafiles was notified that an anonymous complaint had been filed against him. He went to his personal friend, Winkler County Sheriff Robert Roberts, and told him he was being harassed. Roberts sent what looked like a routine letter to the Texas Medical Board, telling Executive Director Mari Robinson he was conducting a criminal investigation “for the offenses of misuse of official information and harassment” and asking to see the complaint filed against Arafiles.

By statute, the Medical Board may only turn over confidential records to authorities if the target of the investigation is one of the doctors the board licenses. Nurses are well outside of their purview. But Medical Board officials assumed Roberts was investigating Arafiles and apparently didn’t seek clarification — giving Roberts the evidence he needed to seize Mitchell’s work computer and accuse her of a personal vendetta to ruin Arafiles’ career.

Jay Harvey, an Austin medical malpractice attorney and past president of the Texas Trial Lawyers Association, said the fact that the TMB didn’t get all the details before turning over the records is troubling. “This raises serious concerns not just about what the TMB is turning over, but the efficiency with which they’re handling cases,” he says.

But TMB officials say Roberts’ letter gave them no reason to second-guess it; they get several like it every week. And they say that once they turned over the complaint to Roberts, the burden fell on him not to use it. In a May letter releasing the complaint to Roberts, Robinson wrote: “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. … TMB is not authorized to provide confidential information unless these assumptions are correct.”

“It was never at all intended to be used for what it seems to have be used for,” says TMB spokeswoman Leigh Hopper. “The letter reads as if he was investigating a doctor. What he ended up doing is so unprecedented and unexpected.”

Whether Roberts could be held liable for not correcting the Medical Board is unclear. And regardless, he and Arafiles face an impending battle. Lawyers for the nurses have filed a civil lawsuit against Roberts, Arafiles and the local prosecutor who tried the case.

Meanwhile, Medical Board officials say they expect future requests from authorities to be given a second and third glance. “I’m sure we’ll look at these requests differently,” Hopper says. “The board is very relieved at the outcome of this trial, and we’re hoping that the fact that it did go to trial doesn’t discourage people from reporting dangerous activity in the future.”