This weekend I was reading about how two nurses from Kermit, Texas were indicted with a third-degree felony for “misuse of official information.” The real charge should be “victim of a witch-hunt” as these two nurses did nothing but hold up the Nurse’s Code of Ethics.
A physician at their hospital was encouraging patients to purchase dubious herbal “medicines” that he happened to profit from because he was the seller. They also thought it was improper that the physician tried to steal materials from the hospital to test patients at their home (the hospital administrators stopped this before it happened). Once the physician found out a complaint had been launched against him he filed a harassment charge to the Winkler County Sheriff’s Department. Through what may have been the most thorough investigation in the history of the county’s sheriff’s department the two nurses were identified and charged with a crime that could result in 2-10 years in prison and up to a $10,000 fine.
The Texas Nurses Association has created a legal defense fund in support of the two women and the Texas Medical Board has written a letter to the attorneys detailing the impropriety of prosecuting the nurses. From what I’ve read the trial should be happening this month but I can’t find much information about it.
There have been some excellent state commentaries on this situation as well as national coverage on the well read medical blog “Science Based Medicine”. Here are some of my favorite excerpts from the reports.
From the Austin American Statesmen:
The Texas Medical Board sent a letter to the attorneys stating that it is improper to criminally prosecute people for raising complaints with the board; that the complaints were confidential and not subject to subpoena; that the board is exempt from federal HIPAA law; and that, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners.
This situation shouldn’t happen anywhere, but it especially shouldn’t happen in Texas, which hassome of the toughest whistle-blower and patient advocacy protections for nurses in the nation, thanks to the leadership of Texas Nurses Association.
Jim Willman, general counsel/director of government affairs for TNA, cited a Texas case in 1983, Lunsford v. Board of Nurse Examiners, 648 S.W.2d 391, 395 (Tex.Civ.App. 1983), where the court held that “[a] license to provide medical services is a covenant to serve the people.” The judgment determined “nurses have a duty to act in the best interest of their patients, and . this duty is not superseded by hospital policies,” explained Willman.
TNA fears the legal precedent the nurses’ indictment sets. The message it sends to nurses and other healthcare practitioners will have adverse affects on the health and safety of patients, Willman added.
“The two nurses had concerns about whether a physician was practicing below the accepted standard of care and reported those concerns to the TMB,” he said. “The NPA recognizes their right to report and their duty to patients requires them to do so. The criminal indictment cannot help but discourage other nurses from reporting a physician, another nurse or a hospital for unsafe patient care.”
The TMB also objected to the criminal prosecution of the nurses, and sent a letter to the Winkler County district attorneys stating the nurses’ complaint was allowed under state and federal law. The board argued “it is improper to criminally prosecute people for raising complaints with the TMB.” It also noted since the complaints were confidential they were not subject to subpoena and that “under federal law TMB is exempt from HIPAA requirements.”
“In my 8 years with the board, I have never seen a complainant charged with a felony for making a complaint to the board,” said Mari Robertson, JD, TMB executive director. “I don’t know that I’ve ever seen a criminal prosecution for providing information to the medical board.”
And from SBM:
This case is bad. Real bad. Nurses and other health care professionals are reluctant enough as it is to report a bad doctor or a doctor peddling dubious therapies as it is. What makes this case particularly outrageous is not only because it appears to be a horrible abuse of power by Sheriff Roberts, but, even worse, it sends the clear and unmistakable message to nurses in Texas: Don’t get out of line or the medical powers that be will make you pay. They will find out who you are, no matter what it takes to do so, and then they will do everything in their power to retaliate. They’ll even try to throw you in jail if they can figure out a rationale to do so, legal or not.