The quick acquittal earlier this month of Texas whistleblower Anne Mitchell, RN, has nursing organizations relieved, but also pressing ahead with remedies to prevent a similar case.
Alice Bodley, general counsel for the American Nurses Association, says only 22 states have whistleblower protections "specifically geared toward healthcare workers."
"We would want to see established in every state to the extent possible a federal law, with very strong prohibitions against retaliation for whistleblowers. That is not only in the nurses' interest, but the patients' as well," Bodley says.
She says it might be time to extend federal whistleblower protections to healthcare professionals who identify not just financial irregularities but also unsafe healthcare practices related to Medicare or Medicaid.
"There are protections for disclosure of violations of Medicare laws, qui tam protections, but they are generally not designed to get to the question of professional practice. It's more financial in terms of Medicare payments," she says. "CMS and the federal government are now moving toward quality measurements through the federal reimbursement system, and this is definitely something we can look at."
Bodley says whistleblower protections have historically been crafted at the state level, but that nursing associations should approach the issue "from every possible vantage point." "The fact is the state laws as they exist now to protect healthcare workers vary widely in terms of the scope of protections and the procedures that are in place," she says. "To the extent that we can obtain a national law that would protect whistleblowers who come forward to disclose poor quality healthcare in connection with Medicare issues, that would be great."
Mitchell was charged with and ultimately acquitted of "misuse of official information," a third-degree felony, for reporting Rolando Arafiles, MD, to the Texas Medical Board. Prosecutors said the nurse violated patient confidentiality when she included their case numbers in her complaint to the medical board. Had she been convicted, Mitchell could have faced up to 10 years in prison. However, after a four-day trial, a state jury in Andrews, TX, needed less than one hour to acquit Mitchell.
Ironically, Texas has some of the strongest whistleblower protection laws in the nation, which was underscored by the "misuse of official information" charges against Mitchell. Texas Nurses Association General Counsel and chief lobbyist Jim Willmann says Mitchell and codefendant Vicki Galle, who had her charged dropped before the trial, were protected by whistleblower statutes, which forced the prosecutors to get creative.
"It's narrower than that," he says. "They were able to go after them only because it was a public hospital and the nurses were county employees. The misuse of official information applies only to public service."
Had the nurses been employed at a private, not-for-profit hospital, Willmann says, "I don't think they'd have found anything else they could have charged them with."
"The prosecutors looked at the initial complaint, which was harassment, and when they found they couldn't make that complaint stick they looked around and found this misuse of official information," he says. "It's hard to figure out how this could be a misuse of official information if it is shared with a regulatory oversight agency."
Willmann says TNA will go to the Texas Legislature when it next meets in 2011 to seek a remedy. "We are just beginning to sort it out," he says. "It's hard to come up with an easy way to limit prosecutorial discretion. We are dealing with what I would characterize as an abuse of prosecutorial discretion, and that may be hard to draft into law."
As for Mitchell and Galle, who lost their jobs during the criminal investigation, they have filed a civil lawsuit in federal court against Arafiles, Winkler County, Texas, the county-owned hospital, the sheriff, and the prosecutor, alleging that the criminal prosecution was baseless and vindictive and a violation of their First Amendment rights.