Texas Lowers The Medical Malpractice Bar Again, Tries To Imprison Nurses For Reporting Dangerous Doctor
All the signs were there:
[Dr. Rolando G. Arafiles Jr. had] a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also 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. …
Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side. …
The hospital administrator, Stan Wiley, said in an interview that Dr. Arafiles had been reprimanded on several occasions for improprieties in writing prescriptions and performing surgery and had agreed to make changes. Mr. Wiley, who said it was difficult to recruit physicians to remote West Texas, said he knew when he hired Dr. Arafiles that he had a restriction on his license stemming from his supervision of a weight-loss clinic.
In a surprise inspection last September, state investigators found several violations by Dr. Arafiles …
Most doctors are competent and diligent professionals who, over the course of their careers, might breach the standard of care in a manner that causes significant harm to patients only a handful of times.
As I have written before, however, “Fact is, there is a small minority of doctors who are simply terrible at their jobs.” The nationwide malpractice settlement numbers don’t lie:
A few physicians were responsible for a large proportion of malpractice payment dollars paid: The 1 percent of physicians with the largest total payments in the NPDB were responsible for about 11.7 percent of all the money paid for physicians in malpractice judgments or settlements reported to the NPDB. The 5 percent of physicians with the largest total payments in the NPDB were responsible for just under a third (31.4 percent) of the total dollars paid for physicians. Eleven percent (11.6 percent) of physicians with at least one malpractice payment were responsible for half of all malpractice dollars paid from September 1, 1990 through December 31, 2006.
It looks like Dr. Arafiles was among the bottom-of-the-class physicians who shouldn’t practice medicine at all.
At least that’s what Anne Mitchell, the hospital’s compliance officer, and two other nurses (one of them the hospital’s quality improvement officer) thought, so they, as Texas law requires them to do, filed an anonymous complaint with the Texas Medical Board.
And what did they get in return for reaching out — through the appropriate, confidential, state-required channels — to protect patients?
They were fired then criminally prosecuted:
When she was fingerprinted and photographed at the jail here last June, it felt as if she had entered a parallel universe, albeit one situated in this barren scrap of West Texas oil patch.
“It was surreal,” said Mrs. Mitchell, 52, the wife of an oil field mechanic and mother of a teenage son. “I said how can this be? You can’t go to prison for doing the right thing.”
But in what may be an unprecedented prosecution, Mrs. Mitchell is scheduled to stand trial in state court on Monday for “misuse of official information,” a third-degree felony in Texas.
I wish I could say I was surprised, but I’m not: Texas is perhaps the most patient-unfriendly state in the union. Just last year, the American College of Emergency Physicians gave Texas an “A” for tort reform and an “F” for access to emergency care. That’s no surprise: as tort reform goes up, care goes down.
Tort reform wasn’t enough, though. The doctors in Texas are apparently so bad they need not just special civil protections from patients and their lawyers, but also the threat of criminal prosecution looming over nurses and hospital compliance / quality improvement officers.