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JANE ANN MORRISON: 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.


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  • 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.

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    Paying Attention wrote on August 09, 2009 07:48 PM: With regard to what "Interesting" wrote, I don't think anyone was trying to defend those CRNAs. The way I read the comments, the article was only speculating with regard to the reason(s) they did what they did, not providing justification for what they did. If the CRNAs were indeed being underpaid for their work, how could greed be a motivator? I would think greed would only have been a factor if the CRNAs were being paid more than what one would expect, not less. That doesn't even make any sense.


    sphengolly wrote on August 08, 2009 06:37 PM: I am sure that all those people who contracted Hepititus or worse from thewrong doing going on at that clinic are glad the nurses were getting paid & not on the unemployment line. That Dr. & all of the staff who knew of waht was going on & did nothing about it should never work in the medical profession again & be in jail. With the shortage of nurses the nurses could have secured employment at some other facility or refused to follow the unsafe practice. I guess if I threaten to fire an employee they would be willing to kill for me to keep their job?? I think not but that is what was being done.


    obamaman wrote on August 08, 2009 12:21 PM: Trying to connect the Kermit case to Desai is definitely a stretch. The cause of the Desai tragedy was not fear of retribution: Plenty of complaints about Dr. Death were made to the authorities. It was because a greedy, smelly little man was protected by other greedy, smelly little men just like him who just happened to also be on the medical board - just like him.. NO ONE involved in Las Vegas medicine during the last 25 years would dispute that.


    Joan wrote on August 08, 2009 11:41 AM: Vegas is famous for retaliation go to http://www.youtube.com/jmb4free to find out about our District Attorney.


    Interesting wrote on August 08, 2009 10:56 AM: You are trying to DEFEND the CRNAs in Desai's clinic? Check out the nurse anesthetists' association(AANA)website where they claim that "CRNAs are vigorous advocates for patient safety in the clinical setting," and their public service campaign claims that while physician anesthesiologists are just in it for the money, CRNAs just really want to help patients. I'm supposed to believe that these poor CRNAs worked for Desai for several years while he paid them LESS than what they could have earned at another job and they had NO CHOICE but to practice medicine in an unsafe manner because they were afraid of losing their jobs? Desai will never practice medicine again after this and all of these CRNAs should have the same fate. Losing your job vs exposing thousands of people to Hepatitis C? Is that really a difficult choice to make? These CRNAs are no better than Desai and there is NOTHING that explains their actions other then pure, selfish greed, just like that of their boss.


    cc wrote on August 08, 2009 10:23 AM: you see, the problem is that the nurses who have consciences are just not going far enough. the only way you can truly get results is to fully protect yourself by ccing every agency that might possibly involved. at least then, someone will know what is right and what is not allowed by the law. furthermore, i understand that the a.m.a. is actually the drs. union. if this is true, then the nurses must realize that they will protect their own at any cost just so they have backup when "they" mess up someones life. it is just like with the politicians, they need moral support even if it is just as flawed as theirs. so by saying that you MUST cc out of your district and to the all proper authorities any conduct that you know to be bad, then you might just have a fighting chance and so will the patients. the more who know of the situation the less of a chance that noone will step up to correct it. by the way, thank you to all the nurses who are there for the patients and not just a job......