A travesty in Texas

Feb 08 2010 Published by under Medicine, Texas nurse case

There's a prosecution going on in Texas that sounds so corrupt, and could have such a chilling influence on the pursuit of quackery nationwide, that it cannot be ignored. I urge you to read the story in the Times, but here's a brief recap.

In Kermit, a small Texas town, two nurses at local hospital became concerned about the practices of one of the physicians, Dr. Rolando G. Arafiles, Jr. Among the alleged practices were the improper peddling of herbal medicines to hospital patients, and the performance of (sometimes unorthodox) surgical procedures without the appropriate privileges to do so. Anne Mitchell, RN, the nurse against whom charges are still filed, went to the hospital with her concerns and was fired, an act for which state reprimanded the hospital. Given the lack of response from the hospital, she went to the state medical board. When Dr. Arafiles found out that there was a complaint against him, he went to a local sheriff buddy of his, who tracked down the confidential report to the state medical board, and used the information in it to deduce the identity of the filers.

And then he charged them with a crime.

The alleged crime was a trumped up bullshit charge for misuse of state data---which is impossible, since the nurse used the hospital data to refer cases to the state medical board. I'm not a lawyer, but it's hard to see what could possibly be wrong with what Mitchell did.

In fact, the nursing code of ethics specifically requires nurses to advocate for patients, including going to higher authorities when necessary.

There is no "rule" that a code of ethics must square with all laws. In this case the ethical code probably does agree with the law, at least the spirit, and probably the letter.

Reading about the actions of these local officials is like watching Blazing Saddles---it's a small town, with a few people in control of everything, and willing to contort the meaning of the law into any shape they wish. If it weren't for the real people involved, it would almost be funny.

But the two most frightening issues here are these:

First, if, in fact, Arafiles is a dangerous doctor (and he has had restrictions placed on his license in the past) there is now almost no way to investigate this. The chilling effect of this sort of prosecution in a small town is nearly unimaginable.

Second, the destruction of the careers of two nurses who were following the ethics of their profession and making seemingly appropriate reports to the state agency charged with investigating such things---this is unforgivable and could be a boon for quacks nationwide.

I'd like to know whether, by unmasking the identity of the filer a confidential report, Sheriff Robert Roberts may have actually broken any laws.  Certainly his actions seem unethical, but might they be illegal?  

The Texas Nurses Association has set up a legal defense fund, which can be accessed from their website.  I would urge readers to write to the county attorney expressing concern, and to either contribute or send messages of support through the TNA.  The local authorities may be a bunch of Mel Brooksian buffoons, but the internet and the media are powerful tools.  Let's use them.

(Orac has written about this topic as well.)

23 responses so far

  • Pascale says:

    Cases like this are why I am not in favor of major restrictions on the right of patients to sue their medical providers (blasphemy from an MD). I have read of inappropriate lawsuits, but I have heard of far more doctors of questionable practices who only stop when they get sued. Reports to licensing boards do not seem to carry the weight they should; hitting them in their wallets and making them uninsurable (malpractice-wise) can be the wake-up call needed.
    Rural areas need local hospitals and care provides; crap like this can mean they won't get it.
    Sounds like a whole lotta laws were violated here, but not by the nurses...

  • D. C. Sessions says:

    I'd like to know whether, by unmasking the identity of the filer a confidential report, Sheriff Robert Roberts may have actually broken any laws. Certainly his actions seem unethical, but might they be illegal?

    IANAL. However, if he had a subpoena then he's probably safe. There have been cases (upheld on appeal) where the officer serving a defective warrant ended up liable (nothing can touch the judge issuing the bogus warrant) but in general they're pretty safe.
    As for the prosecutor, that's another matter. The question of whether a prosecutor's immunity from liability is qualified or absolute [1] but either way there's not much risk. A prosecutor can, as in this case, file BS charges against people until they're totally bankrupted by the legal cost of successful defense and the best they can hope for is to, maybe, recover their expenses by lawsuit. Of course, those suits cost money and that isn't recoverable -- so eventually the victim is SOL.
    [1] There was a case on the USSC docket this term to settle that question, but IIRC it was settled and won't be coming up. I could be wrong.

  • bob koepp says:

    I heard from friends who are following this story that the sheriff and Dr. Arafiles were partners in the herbal woo business. No conflict of interest there....

  • Emily says:

    I'm not surprised even remotely. Corruption by law enforcement is rampant in Texas. The old saying, "They follow the letter of the law, but not the spirit" doesn't even apply anymore.

  • Lee Tilson says:

    Where are the national organizations that are supposed to assure us of safe healthcare? Other than the nursing organizations, none of the national groups has taken a position so far. This is disappointing.
    Where are they?

  • MonkeyPox says:

    What organizations would those be?

  • D. C. Sessions says:

    I looked up the case. It wasn't settled, and the USSC heard oral arguments last year:

  • daedalus2u says:

    The sheriff did get a search warrent, but he committed perjury in his statements to the judge to get it (in my opinion).
    The Texas Medical Board specificially told this sheriff in writing that the disclosure of the patient information by the nurses was not a violation of law, but that his disclosure of the information would be a violation of law.
    The doctor was reprimanded based on the nurses report, so it was a legitimate use of the information.
    Unless the federal government gets involved there isn't much that can be cone to stop corruption like this. Sue the county and make them bankrupt is about the only path out.

  • Mr. Hopey Changey says:

    The last time I checked it was NOT ILLEGAL for doctors to give or recommend their patients use herbal treatments. I am not quite sure about selling them. However, the patients should have changed doctors if that doctor was treating the patient satisfactory. I guess personal responsibility went out the door with the rise of the super sexual 1960s mentality.

  • PalMD says:

    It's certainly not illegal (but is ethically murky), but if he was inappropriately using patient info to contact potential customers, or some such activity, that would be illegal.

  • Orac says:

    The last time I checked it was NOT ILLEGAL for doctors to give or recommend their patients use herbal treatments

    But it is illegal in most states for them to sell patients supplements from their own business, for the same reason doctors can't run their own labs or radiology facilities in their office and refer patients to themselves. His visits to the ER and the county health clinic were in his official capacity as a physician at Winkler County Hospital; so his hawking supplements that he sold was at the very least highly unethical and very likely illegal.

  • Chris says:

    He did other things, like surgery where he was not allowed. From the New York Times article:

    she had a professional obligation to protect patients from what she saw as 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.

  • micah says:

    THis whole thing is so screwed up. Arafiles has a REVOKED license in the state of New York......REVOKED! He also has a limited license in TEXAS based on questionable practices in a weight loss clinic. This is not the 1st time that he has screwed up, and if something doesn't change, it won't be the last. As for Sheriff, he somehow swindled the "Confidential" complaint by the nurses from the Texas Nurses Board. He then looked up the patient ID numbers and went door-to-door trying to determine which one of them might have complained against the doctor. When he found out it wasn't any of them, they focused on hospital staff, and BOOM he nabbed 2 uppity nurses that complained against his good buddy. The doctor, sheriff, hospital administrator, and county judge are all in on this....and it's not too far-fetched to beleive that this doctor is hooking all these guys up other things under the table. It's a shame that they think they can get away with this, and it's also a shame because they've probably gotten away with WAY more that no one even knows about.

  • Dianne says:

    But it is illegal in most states for them to sell patients supplements from their own business, for the same reason doctors can't run their own labs or radiology facilities in their office and refer patients to themselves.
    Wouldn't this also be a violation of the Stark law, which is national?

  • PalMD says:

    IANAL but I am fairly certain that it is not a Stark violation. Many offices sell supplements etc, and while I feel that it's unethical, it's not AFAIK illegal.

  • James Sweet says:

    DC Sessions -- you are correct, the prosecutorial immunity case never reached the Supreme Court.
    I have a feeling Mr. Hopey Changey at #9 is not getting laid enough. That's the only explanation I can figure out that would lead someone to leap from "a doctor was performing unauthorized and unorthodox surgical procedures and using his law enforcement ties to get away with it" to "there was too much sex in the 60s!"

  • Kathryn says:

    Regarding the supplement sales, I read that the problem was that he pushed them to ER Patients! Talk about finding a vulnerable population...

  • Rob Monkey says:

    yeah Mr. Hopey Changey, and what's with all these people wanting meat not contaminated with e. coli? If people would just take the responsibility to send out a sample of all meat they buy to a lab at their own expense, we wouldn't need the FDA! What a dumbass, apparently we shouldn't even bother licensing doctors, people can figure out the good ones on their own by seeing how many patients die at the hands of incompetents. Well at least you're accurately channeling Palin with that 'nym.

  • Mr. Hopey Changey says:

    Getting laid enough? That's a nice expression ... for an EGG! I am not an egg, therefore I do not get laid.

  • Carol says:

    in reference to the comment by micah
    I checked the New York Medical Board site and did not see anything saying that this doctor had a revoked license. I did see that he had a limitation on his license in Texas.
    If there is a record of a licnse revocation in New York or any other state, please post the link.

  • Pareidolius says:

    Day 2 p.m. Defense attorney cross-examined Dr. Arafiles. Doc said diabetics heal as well as anybody else. Courtroom gasped.

    You can follow along with the TNA on twitter. Courtroom gasped indeed.

  • Tsu Dho Nimh says:

    Physician Name: Rolando German Arafiles, MD
    License Number: 205227
    License Type: MD
    Year of Birth: 1952
    Effective Date: 02/29/2008
    Action: The physician has agreed to never register or reapply for a medical license to practice medicine in New York State.
    Misconduct Description: The physician did not contest the charge of having been disciplined by the Texas State Medical Board for negligence.