Q&A with Clair Jordan: Defending nurses who blow the whistle

Clair Jordan, the executive director of the Texas Nurses Association for the past 30 years, has seen nurses in a lot of difficult situations. But even she was stunned to hear that two Texas nurse whistle-blowers, Anne Mitchell and Vicki Galle, were fired in June from their jobs, arrested, and indicted on third-degree-felony criminal charges after filing an anonymous complaint with the Texas Medical Board against Dr. Rolando Arafiles at Winkler County Memorial Hospital in Kermit. Jordan and the association have rallied to their defense. I reached Jordan at her office in Austin. Here is a recap of our conversation. It has been edited for space and clarity.

Q: These nurses were in a tough spot. How does a nurse balance the legal requirement to keep patient information confidential against the moral obligation to call attention to a potentially dangerous doctor?

A: Most professional licensing boards are used to dealing with that subject and they give a special privilege for information that is reported to them that substantiates an individual's claim that the practice was not up to acceptable standards. While the nurses did report some actual patient numbers here, they were using those to substantiate their concerns about a practicing physician in their hospital. That is a considered a traditional time and place where it is OK to divulge a certain amount of patient information.

Q: They didn't use patient names or anything that would allow someone from the general public to identify the patient, right?

A: The letter was confidentially written to the Texas Board of Medical Examiners, and they might be able to identify the patients' names from that information but they would hold those names in confidence.

Q: Isn't the sheriff just trying to enforce the law here?

A: I think the physician thought he was being unduly harassed, and the sheriff and the county took his complaint to the greatest extent possible. This is a very unusual area to be called harassment, and the nurses used their best avenue to ask for the physician's peers to evaluate his practice. But that was not taken into consideration by the county, or the hospital, Winkler County Memorial Hospital. The hospital had policies that forbid employees from reporting anything out of the hospital environment. We believe this type of policy is illegal, and we have asked that the Texas Department of Human Services, which is the licensee of hospitals in Texas, investigate what we consider to be an illegal policy.

Q: Do other hospitals have this policy?

A: No. We do not know of any. If this policy is allowed to continue, it will shut down one of the protection mechanisms for patients across the board. It would mean that practitioners and groups could not cross check and ask for a peer's opinion about whether that practice is in line with best practice. I have had many other nurses contact me following this case saying that they themselves have done this same thing. They took the responsibility on themselves of reporting a physician or another nurse to a state agency so that it is actually a third party making the judgment. They give the information about what they consider to be below the standard of care, and then they leave it up to the agency to investigate and make a judgment.

Q: The nurses have filed a federal lawsuit against the county, the doctor and the hospital. Have you done anything to support that?

A: We have tried to collect legal opinions from across the United States to assist the nurses' attorneys. Whistle-blowing, no matter how well you construct the laws to protect the whistle-blower, puts a person in a very vulnerable position. Anyone can take action against them. The whistle-blower laws just give them some protection in going through that process. There is really nothing we could have done that would have protected them from criminal charges. We are hopeful that what is there as state whistle-blower language will support them.

Q: Had Winkler County Memorial Hospital done anything to discipline this doctor?

A: We do not know of anything. We do know that he has had previous charges filed by the Texas Medical Board.

Q: Could the Texas Medical Board have done anything differently here to prevent this from happening?

A: I don't know that they really could have and still have done an adequate investigation. Obviously the person involved needs to be notified they are being investigated. The nurses in their letter said they wanted to assure the board that they were practicing nurses over 20 years and just that fact was used as a descriptor. The sheriff was able to identify them from the personnel records, because there are so few employees there.

Q: Do you think this already is having a chilling effect?

A: We have seen indications that other nurses are concerned and are questioning whether they should put themselves in this kind of a position. But they also know that you can't remain silent when a patient is being harmed. We've seen letters from other nurses that have indicated their concern. Some nurses have sent money to these nurses' legal defense fund. We have heard from nurses in over 30 states and they have raised more than $20,000.

Q: Have you seen a case like this in your 30 years as executive director?

A: I have not seen cases go this far. We have seen nurses retaliated against and fired because they did report. There have been lawsuits and nurses have received financial settlements, and the cases have never gone to court.

Q: Is there anything that can be done at the state or national level to shore up whistle-blower protection?

A: We have a house member here in Texas who is a former nurse, Donna Howard. She is asking for a study on whistle-blower protection for nurses. She had tried to carry a bill to give more protection to nurses employed in public institutions, and it was not successful. I think some of the leadership felt that it would lead to more lawsuits, and that was unacceptable. They are concerned about frivolous cases against the state of Texas. But now this opportunity has come along that could provide an excellent example of what these nurses face when they come forward.

Q: Have you seen any particularly outstanding reporting about this case?

A: The Winkler County paper has refused to report on this case, because they don't want to become a piece of the trial. They don't want to have the case to be tried in public. But they do run an excellent blog on the case where people are allowed to put whatever they want online. Some of the people have said that maybe it's time for Winkler Country to question the quality of its health care. It's an interesting conversation to see in an isolated area like that. The Fort Worth Star-Telegram did a good job early on in the case. The Austin paper has run editorials about the case.

Q: What can health writers do to serve that watchdog role and bring some of these stories out?

A: Nurses will rally around other nurses. When you are a whistle-blower, it is a lonely process, in terms of what you have to give up. I always try to tell nurses that when you step forward because you know something is wrong, you know you are doing the right thing. I think other nurses who have been in similar situations might be willing to step forward and talk.