Report a bad doctor to the authorities, go to jail? The trial, day two

IANAL, but it seems to me that if you want to prove any kind of harassment you have to show that there was a motive *unrelated to the official complaint*. The comments that the IT guy and the sheriff (an unreliable source if ever there was one) relate seem precisely relevant to that official complaint, therefore they are not evidence of harassment. Doctors *should* be "harassed" - i.e. criticized and held accountable - for their mistakes or malfeasance. Mitchell's comments might be considered intemperate, perhaps even unprofessional to the degree that they were about matters that her audience need not have been privy to, but from this description they don't amount to harassment.

It sounds like they're going for 'look, she doesn't like him, and that's why she claimed that he's a bad doctor.' The response, of course, is 'he's a bad doctor, and that's why she doesn't like him.'

Unfortunately, we don't know what the makeup of the jury will be like. If we imagine a scenario where a very good doctor received a complaint against him, and then the nurse who made the complaint was overheard calling him a "witch doctor", that would make it seem quite plausible that she filed the complaint out of malice or spite. (Whether filing the complaint is illegal is another matter entirely, of course, and hopefully even if the jury decides that Arafiles isn't a bad guy, they'll at least see that) We know now that the "witch doctor" characterization is pretty damn accurate, but who knows if the jury will be convinced of this?

We know now that the "witch doctor" characterization is pretty damn accurate, but who knows if the jury will be convinced of this?

Will the jury disagree with the Texas Medical Board?

Undoubtedly someone from the board would testify.

Were the jurors questioned about their "beliefs" regarding medicine and CAM? I just had the experience of posting something yesterday on a food blog and receiving several very positive and flattering responses. Then I posted a link to QuackWatch to another poster who had inquired about Price Weston (the quack dentist). Today I was hit with two severe reprimands for calling good honest people with "different opinions" quacks and told sternly that "science makes lots of mistakes and doesn't know everything". The one who defends Weston said he appreciated the info, but he likes what Weston says as well. This is the great problem that spills over into journalism--present both sides and let people make up their own minds---arghhhh!

My point is that this is a blog about nutrition written by Marion Nestle who is a consummate scientist and offers very practical and down to earth advice in her books and on the blog; one of the last places I would expect to be attacked for exposing a quack. This stuff is sooooo pervasive. It is likely that any number of jurors would not respond favorably to the doctor (who as all must know "saved" the sheriff's life) being called a "witch doctor".

The thing is, even if the nurses had a gigantic vendetta against this doctor, sending patient information to the Texas Medical Board is not illegal disclosure of patient information. The TMB is considered to be "inside" the medical establishment that has authorization to receive patient information.

@deadalus2u: Right, I'm hoping that even if the jury winds up sympathizing with the good witch doctor, they will still see that no way, no how was this illegal.

@Anthro:

The basic language and way of talking about science among woo-friendly types is fundamentally wrong.

"Science" doesn't know everything? You mean, "The current scientific consensus does not include the sum total of all possible knowledge."

Science is sometimes wrong? You mean, scientists are sometimes wrong. The scientific consensus is sometimes wrong.

We need to work to change the language to reflect reality:

Whenever somebody says "Science is sometimes wrong", we need to disagree. Scientists can be wrong. Science is a method. Anybody can use the scientific method. You don't need a license to be a scientist. Professional scientists frequently disagree with each other. Using the scientific method to disagree with a scientist is not quackery. Disagreeing without providing any genuine reason: *that* is quackery.

A quack is not a quack because of what they say. They are a quack because they cling to a belief regardless of the evidence. They are a quack because they provide little to no evidence for their beliefs, but demand perfect evidence for anything they dislike.

@daedalus2u: IANAL, but assuming competent counsel for the defense (yes, that's a stretch in rural Texas), that point should have been made in a pretrial motion and should have been sufficient to dismiss with prejudice. Either it wasn't made, or it did not result in dismissal with prejudice. This despite a Texas Supreme Court ruling that has been mentioned on earlier threads that would support such dismissal. Since the case has gone this far, I have no confidence that it will stop with an acquittal at trial.

The thing is, even if the nurses had a gigantic vendetta against this doctor, sending patient information to the Texas Medical Board is not illegal disclosure of patient information. The TMB is considered to be "inside" the medical establishment that has authorization to receive patient information.

Then again, if the information that is described in Orac's post is correct, it doesn't even sound as if this is an issue. If the only witnesses for the prosecution are going to be ones who testify that she said bad things about him, then it doesn't seem the state is even attempting to prove a case of illegally using medical information.

Unless I'm missing something in their case...

This is pathetic - even if she did what she's accused of doing, what relevance is that to his work performance and the safety of patients? All the defense has to do is demonstrate that he was doing things that were questionable (and there's apparently written history of that). Then she would be completely justified in having those opinions about him.

The thing that bothers me about the "she hated him, so she couldn't have acted in good faith" argument is that the nurse was essentially a WITNESS. If a prosecutor prosecutes a man who slept with his wife, he can get in trouble- and that makes sense, since the prosecutor could have always turned the case over to another prosecutor. But in this case, she was reporting conduct she had knowledge of. If a nurse knows that a doctor has been operating on patients drunk, and the doctor slept with the nurse's husband, is the nurse acting in bad faith if she reports the drunk doctor to the board?

@Eric Lund: I am a lawyer, but not a Texas lawyer (IANATL). Assuming Texas law isn't too different from the law in most states, there is really no way to get a criminal case dismissed before trial based on a lack of evidence. If the complaint or indictment charges the elements of the crime--which it usually does without any real supporting facts--then the case will go to trial.

The first real test will be the defendant's motion for acquittal or directed verdict after the state finishes its case. The judge will then have to rule whether there is sufficient evidence for a jury to find beyond a reasonable doubt, based on the evidence the state presented, that the defendant committed the offense. The Court can then rule that, even assuming that all the evidence that the state presented was true, the conduct doesn't constitute a crime.

No matter what the trial judge does, an appellate court can still rule that the conduct does not constitute a crime (as long as defense counsel raises the issue during trial).

The state's claim is effectively that the nurses misused confidential information to further a personal grudge. Thus, all the information is relevant to whether they had a personal grudge. Its also legally sufficient (i.e., a jury would be allowed to find them guilty) although I highly doubt a jury actually would.

Its the defense's duty to point out that they were criticizing the doctor because he actually is not practicing real medicine and shouldn't be there. The big thing will be the defense getting a bunch of doctors and medical ethicists to testify that Arafiles is, in fact, a quack, or at least is unethically enriching himself.

Since the claim against the other nurse was voluntarily dismissed, I wonder whether that's sufficient under Texas law to support a malicious prosecution lawsuit.

Sidenote: IAAL, though not a trial one.

And I bring up malpros simply because it always requires you to win the underlying lawsuit first. In some states, the judge or jury has to come back in your favor. In others, the other party dismissing it before (or during) trial is enough.

The thing that bothers me about the "she hated him, so she couldn't have acted in good faith" argument is that the nurse was essentially a WITNESS.

Good point. In a murder trial: "Your honor, this witness has stated in his deposition that he thinks the defendant is a MURDERER. How can he possibly be expected to give impartial testimony?" Of course, the good ol' boys network managed to switch the chairs around a little bit...

I like the lede in this Houston TV news report:

"Whistleblowers are credited with helping expose great wrongs in America and protecting people."

ABC News 13 - KTRK: Whistleblowing nurse could face 10 years in prison

What has me concerned about this case as well is what effect the sheriff's actions will have on the jury. Think about it for a moment. Here is a law enforcement official who is using his official powers to harass and bring a wrongful indictment against someone who clearly is innocent. I can't imagine that the jury isn't thinking about what this man would do to them if they disagree with him. The whole thing makes me so ill to my stomach it's not even funny.

Pablo,

They aren't being charged with a HIPAA violation for precisely the reason you mentioned. No one is saying they passed information to someone who wasn't allowed to have it. They're being charged with misuing confidential information to further a personal grudge.

Here's a link to the law allegedly violated:
http://penalcode.austintexascriminaldefense.com/39.06.html

(b) A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose that:
(1) he has access to by means of his office or employment; and
(2) has not been made public.

I only wish more nurses would stand up and report doctors/nurses who vaccinate off-label, for example vaccinating sick children or giving more than one vaccine at a time unless its been safety studied (which only includes a few vaccines. I believe meningitis and Gardasil vaccines have been studied in combination).

@19
The law seems to require that the misuse be for a "nongovernmental purpose." The TMB is a governmental body and regardless of their personal motivation, the nurses' disclosures to the TMB are appropriate if they think the doctor has done something wrong.

It was the sheriff's investigation that brought the otherwise confidential communication out to the public.

@jen

giving more than one vaccine at a time unless its been safety studied (which only includes a few vaccines. I believe meningitis and Gardasil vaccines have been studied in combination)

Actually, jen, quite a number of vaccines have been studied in combination. Just take a look in the package inserts to see what has been tested and what has not been tested. For example, Tripedia has been studied in combination with HiB vaccines and OPV, but not varicella, IPV or pneumococcal, according to its insert.

Also, new vaccines are generally recommended to include in their pre-market clinical trials concomitant administration with other vaccines that are likely to be given around the same time.

jen,
I think you are FOS on the multiple vaccine claim. Many are tested and approved. One of many links here.

@jen

One other thing. Off-label use, in and of itself, is not necessarily bad. Where it goes wrong is when a product is used off-label without any scientific, clinical evidence that it is safe or effective (i.e., that doing so has benefits which outweigh potential risks).

In the interest of throwing jen a bone, I think everyone here would agree that if a doctor were about to give a vaccine to a kid who is not supposed to be vaccinated for medical reasons (e.g. severe immunodeficiency), and a nurse was in a position to speak up about it, we would all hope that he would, and right quick!

To act like this makes Paul Offit an "arsehole", as you did in the other thread, is just a complete nonsequitir...

Thanks for the link, Joe. IANATL, but I can't see how making a complaint to the state medical board be a "nongovernmental purpose."

Maybe somebody should be charged under this section of the Texas Penal Code:

Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(d) An offense under this section is a Class A misdemeanor.

@James Sweet

Agreed.

Thanks for the link, Joe. IANATL, but I can't see how making a complaint to the state medical board be a "nongovernmental purpose."

But if I am reading right, that is not what she is being charged with. If the witness list is anything, it appears she is being accused of using that information as a basis to badmouth him to her colleagues and others.

Now, if that is to the level of harrassment or defraud, I wouldn't say.

I cannot believe that the prosecution even went forward in this case. Ethically, that is some *very* murky ground...they seem have next to nothing, evidence-wise.

Pablo, no- the argument seems to be that sending the information to the board constituted harming another and her statements to her colleagues were evidence that she acted in good faith.

Orac (and Orac's friends), while I'm very happy this case is getting attention (mostly because the actions of this DA/Sheriff are so fundamentally absurd), medical-whistle-blowers have been getting hammered for years and NO ONE has given a rat's tail.

Most state Medical Boards do NOTHING to protect or defend the duties they require - or punish those who might interfere with a doctor's sworn duties. They're little more than glorified good-ole-boys networks most of the time - winking and nodding at those who control the purse strings.

JCAHO, the AMA, DHHS and politicians/AG's everywhere have turned a blind eye and a deaf ear FOR YEARS.

These doctors and nurses are "diagnosed" as "disruptive" by hospitals (it's JCAHO's current thing - and a whole lot of "woo" if there ever was woo), they're fired and/or (in doctor's cases) bad-faith reviewed and/or black-balled and/or sued and/or prosecuted on bogus charges (this seems to be the MO in Texas).

It's massively expensive to mount a legal defense of ANY of this. If you're unemployed or black-balled, it's virutally impossible to make a living, much less pay the damned lawyers.

But for all of the expectations the public has of doctors and nurses to report medical badness . . . and for all the talk about "reform", no one is holding hearings on Capitol Hill about it.

Badly burned at the end of a public service gig in my own hometown, I've been begging an N.C. DA since 2003 to refer an INYOURFACE case of perjury/contempt/fraud to the N.C. AG for investigation. He's ignored/buried the case in favor of the "non-profit" executives who fired me for saving a baby's life, and then used the legal sytem as a battering ram - in the end, lying their butts off to get out on the cheap. As in the Nifong debacle, the AG cannot intervene without being requested to do so:

http://drjshousecalls.blogspot.com/2009/12/dr-mary-johnson-vs-randolph-…

There are a whole lot more cases like mine out there. The Philadelphia Post Gazette did a series several years ago on bad-faith peer review:

http://www.post-gazette.com/pg/03299/234499.stm

And OBTW, I'll be blogging on this case too:

http://drjshousecalls.blogspot.com/2010/02/whistle-blowing-texas-nurses…

Pablo, I can see why you think that the charge must not involve the medical board complaint, and without seeing the indictment one can't be sure. But the reporting does indicate that the charge is based on the complaint to the medical board, according to statements from the prosecutor, the Sheriff, and the hospital administrator quoted in this NYT article on 2/6/10.

So it looks like the prosecution's theory is that the use of official information would not be for a "governmental purpose" if a complaint is made to a governmental agency but not in "good faith." The "good faith" test seems to come from civil law involving whistleblowers, not from interpretations of the criminal statute on misuse of official information.

According to the CBS report for the trial today, the Sheriff testified that the patient file numbers that were sent to the medical board were confidential information, and admitted that the medical board complaint was for governmental reasons.

Oops, I meant that her statements to her colleagues were evidence that she acted in BAD faith.

Update from the Texas Nurses Association:

And, it seems, there was yet a second complaint filed against the physician. The sheriff admitted that he didnât check with the Texas Medical Board, said he didnât know which complaint was the first and which was the second. The second complaint was filed by a nurse who was never indicted. Sheriff said he didnât do any investigation of whether complaints the nurses made were true.

When the defense attorney asked if the sheriff had ever arrested someone simply because the person gave him information about a possible crime, the sheriff answered, âyes.â The defense attorney rephrased the question and asked it again. Still the sheriff answered, âyes.â The courtroom laughed. The judge then admonished that their laughter was inappropriate behavior and he will have them removed if the laughter continues.

Oh, dear.

So the sheriff is vindictive and stupid too? Maybe this is an ESL problem and he needs an interpreter. Sorry the judge doesn't see this as an issue other than one of decorum but maybe he's saving up for later to tell the sheriff to STFU.

gaiainc:

What has me concerned about this case as well is what effect the sheriff's actions will have on the jury. Think about it for a moment. Here is a law enforcement official who is using his official powers to harass and bring a wrongful indictment against someone who clearly is innocent. I can't imagine that the jury isn't thinking about what this man would do to them if they disagree with him. The whole thing makes me so ill to my stomach it's not even funny.

Going through the updates in the Texas Nurses Association, I see that they changed to another county. They posted on 28 January:

A court ordered change of venue has moved the criminal trial of the âWinkler Countyâ nurses to Andrews, a city in and the county seat of Andrews County which is a Texas county adjacent to and north of Winkler County. The trial of nurses Anne Mitchell and Vicki Galle is scheduled to begin Monday, February 8, 2010 with jury selection.

Tangent:

I still can't believe that there are people out there who were stupid enough to get the H1N1 vaccine. Morons.

That is because you cannot read, troll. Where is the H1N1 vaccine mentioned on this page? Who is Tangent?

@#37:

I'll call you FAIL for short, okay?

Chris,

The same thing struck me when I read the update from today. Yesterday they were shocked at the docs half-witted testimony and today they laugh at the stupidity of the sheriff. It reflects very badly on this prosecutor that he even would think of bringing this to court.

I think the people who have caused this injustice to be done to these nurses will regret it, if they ever are coherent enough to notice that they have outraged much of America.

Pablo, I can see why you think that the charge must not involve the medical board complaint, and without seeing the indictment one can't be sure. But the reporting does indicate that the charge is based on the complaint to the medical board, according to statements from the prosecutor, the Sheriff, and the hospital administrator quoted in this NYT article on 2/6/10.

If that is the case, then the prosecutor is doing a really stupid job of presenting it, because if the information about the witness list is true, then they have nothing to do with that charge.

Seriously, what does a witness saying, "She said bad things about him to me" have to do with improperly providing information to the medical board?

Why would the court even allow them to testify? They have nothing to do with those charges.

Oh, goody... the infamous Association of American Physicians and Surgeons (AAPS) has released a press release. Where they (ironically) pull the race card:

The blogosphere is filled with rants against the doctor, Rolando G. Arafiles, Jr., M.D.; the prosecutor; and West Texas itself. The doctor has dark skin, a foreign accent, and some unconventional ideas. But his ideas and his practice are not on trial. The question before the court is whether the nurse, not the doctor, acted wrongfully.

Oh, good grief. Having lived in Texas and Central America I know full well that having a Spanish surname in no way denotes color or accent (or even country! my first Spanish teacher was from Spanish Morocco!). When I read the NY Times article I was shocked by the surgeries, and not only selling supplements but emailing patients later as a way to boost sales. It was not until the last few paragraphs of the article that explain where he was from.

Perhaps it is the AAPS's health freedom call to be able to do whatever they want to patients without being criticized.

This guy should have had his license yanked.
It sounds to me like the Sheriff needs to retire and let someone take over who isn't going to use the office to deal revenge on his buddies' enemies. I hope the good folks of Winkler, TX make some choices in this regard soon.
Oh, and question: what's the sheriff got on the prosecutor that the prosecutor is pushing this case ?
The sheriff can make all the allegations he wants, but the decision to prosecute is solely on the district attorney.
Finally, I'm no lawyer either, but from what I've read this looks like almost an automatic overturn on appeal.

The prosecution has rested and the judge has denied the defense motion for directed verdict (essentially a request that the judge find in favor of the defendant because the prosecution has failed to present a legally sufficient case to submit to the jury). Motions for directed verdict are almost never successful, but it seemed this might be one of those rare exceptions, since the prosecution's case is so feeble. I'm starting to suspect that, even though they changed venue from Winkler to Andrews County, the judge is tightly wired into the same Good Ol' Boy network as the sheriff, the prosecutor and Dr. Arafiles; nothing says the network stops at the county line.

Pablo,

They're claiming she sent the information not for a legitimate government purpose (stopping fraud/quackery) but for personal reasons - to act on a grudge.

The "she said bad things about me" bit is evidence that she has a grudge.

DT -

I don't think there's any evidence for that. The case is feeble, but that's based on judgments about witness credibility. Its very difficult for a judge to grant a directed verdict and say that a jury couldn't possibly believe the prosecution case that she had a grudge.

@Gopi

Yes, I know the responses and I dutifully posted them. I'll have to check back to see if I get retaliation or some glimmer of comprehension.

I also wrote to a NY Times reporter about a front page (online) article which gave equal weight to the "argument" about climate change between "skeptics" and "believers". Senator Inhoffe and Matt Drudge being pitted against all of science as if they were equal!

Also, HuffPost has yet another screed from Dana Ullmann on homeopathy and his "evel critics" who he claims are persecuting him. The comments are running about three to one in favor of "it works for me" and "doctors kill people every day" and "Big Pharma is trying to repress alt med". So, I think we have a long way to go.

All of this is why I am very concerned about the jury in this case. Hopefully, they will look at the legal issues involved as detailed in a lot of the comments here (seems a lot of lawyers read this blog).

Well, Joe, when I see a doctor doing things that compromise patient safety and ethical medical practice, that gives me a real poor opinion of that doctor, what you might, I guess, call a "grudge." If I act on my observations and report these cases to the appropriate disciplinary authority, which finds my criticism well-founded, I'd like to think I wouldn't wind up doing 5-15 in the state pen because I expressed my low opinion to co-workers.

Holding a grudge is not a felony, and I think the prosecutor should be held to the standard of proving a bit more than that.

Ooh, lemme at him! Dana Ullman is a personal favorite of mine! XD

Also, I see Joe Mercola in there terrifying mothers about toxins poisoning their children. Hah! I think the biggest risk to children is Joe Mercola.

The twitter from the Texas Nurses Association: NOT GUILTY says the jury.

Jeez, I though the prosecution just rested their case. Did the defense not do anything?

@Chris

Woot!

@Chris #38 who asked: "That is because you cannot read, troll. Where is the H1N1 vaccine mentioned on this page?"

H1N1 was mentioned in the first sentence. I figured that I owed it to you guys to remind you of how darn stupid you were if you in fact actually got the H1N1 vaccine. LOL!

Yes, troll... H1N1 was mentioned in the first sentence, but not the vaccine. Are you aware there is a difference?

Chris,
I recommend we give the troll Dr Arafiles colloidal silver treatment when he gets H1N1. A LOT of colloidal silver.

Trolls and reading comprehension do not mix.

@Chris

Yes, I am aware that there is a difference between H1N1 and the H1N1 vaccine (both scams)... which is precisely the reason why I had written 'tangent' at the beginning of my post... :)

Let me guess... you are one of the morons who fell for the vaccine, huh? LOL!

I am really curious what it means to have fallen for a vaccine. Is that implying it does not work? Or has horribly harmed me? I work in a hospital and got an H1N1 vaccine. Are you saying it was a poor choice to get it when one is working in a high risk environment, or a bad choice for anyone to get it?

Like most of the trolls here you have given no evidence for your views. Just repeating your insulting little line about everyone else being a moron does not make it true. Put up or shut up.

@Travis

The fact is ... the entire H1N1 fiasco is/was a scam... There was no need for that vaccine. It was a joke. Morons fell for it left and right... Sad.

Actually, only morons continue to post nonsensical off topic comments. It really has nothing to do with the only partially licensed (and hopefully soon to be unlicensed) Dr. Arafiles.

That is true. It is amazing how easy it is to get off topic. I totally forgot what the original topic of this post was.

I look forward to hearing more about the civil lawsuit against these guys and any proceedings involving the licensing of this doctor.