The Feb. 15 early morning shooting inside the emergency department of Scotland Memorial Hospital in Laurinburg, NC, provides an unwelcomed, frightening, and extreme example of the violence that healthcare professionals too often confront.
If you want to read the details of the report, here's a local news link. Bottom line: some jerk allegedly brought a gun into a hospital and started shooting people. I really don't care what his motive was, although I was gratified—but not surprised—to read that the healthcare professionals on duty acted heroically to secure the safety of their patients.
When the attack was over, one patient at the hospital had suffered multiple critical gunshot wounds to the chest, his alleged attacker was in police custody, the hospital was in lockdown, and a number of healthcare professionals and their patients—though not physically injured-were badly shaken.
The story got little play nationally and not that much play around North Carolina—a couple of news cycles and then nothing. That left me wondering if hospital violence has become so commonplace that it no longer warrants extensive news coverage. Had a similar shooting occurred in a school, for example, it likely would have generated much more media coverage. Is this a sign that we are becoming inured to the idea of violence in the ED? Let's hope not.
From everything I've heard and read so far, it appears that Scotland Memorial CEO/President Greg Wood and his staff did a good job responding to the shooting, and then keeping the public informed. SMH issued two press releases in the hours immediately after the shooting—doing their best to explain the convoluted chain of events and the hospital's response, even as the police investigation was still underway.
"We have never experienced anything like this in our hospital before," Wood said in a media release. "The safety of our patients, visitors, and staff is of paramount importance to us, and we have extensive security measures in place to minimize the likelihood of such a horrific incident as this."
Wood understands the importance of keeping the public informed on this critical issue. He could have simply referred inquiries to the local police. You'd be amazed at how many hospitals do. SMH is still assessing its reaction to the shooting, what worked, what could be improved upon, etc. I hope to speak with Wood when that review is complete.
When will hospital violence get the attention it deserves? This is not a new phenomenon. HealthLeaders Media and other healthcare media have reported on it, but you don't see it talked about much anywhere else. An Emergency Nurses Association survey last year found that more than half of emergency nurses say they've been "spit on," "hit," "pushed or shoved," "scratched," and "kicked" while on the job. One in four of the 3,465 emergency nurses surveyed for Violence Against Nurses Working in U.S. Emergency Departments say they've been assaulted more than 20 times in the past three years, and one in five nurses have been verbally abused more than 200 times during the same period.
A report from the National Advisory Council on Nurse Education and Practice also found "considerable evidence that workers in the healthcare sector are at greater risk of violence than workers in any other sector." The report cites Bureau of Labor Statistics data which show that 48% of all non-fatal injuries from occupational assaults and violent acts occurred in healthcare and social services settings. BLS data also show that 9.3 in 10,000 employees in the health services sector suffer injuries that require time off from work, compared with two in every 10,000 workers overall in the private sector.
There are cost big factors at work here too. How much are hospitals paying in workers' compensation claims, or litigation for unsafe work environments, or for missed work, or for overtime or hiring temps to cover those missed shifts? How will a shooting in your emergency department affect recruiting and retention?
These are grave questions that deserve immediate attention. First and foremost, however, this is a human resources issue. This is about providing dedicated healing professionals with a safe working environment. They have enough stress in their work already. They shouldn't have to worry about getting shot, or stabbed, or kicked, or slapped, or scratched, or punched, or spit upon, or pushed, or cursed at, or intimidated. That sort of abusive conduct is not tolerated almost anywhere else. Why are hospitals the exception?
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Insurance commissioners from three states today expressed concerns that health insurance reform proposals put forward by Democrats and Republicans would destabilize state markets and create more problems than they're designed to solve.
Specifically, three members of the National Association of Insurance Commissioners sharply criticized a Republican proposal to allow consumers and companies to purchase health insurance across state lines and a Democratic plan to strip health insurers of antitrust protections.
Rep. Marsha Blackburn, R-TN, said at the White House healthcare reform summit on Thursday that allowing consumers to purchase health insurance policies that are regulated in other states would spur competition and lower costs.
"State lines right now basically have stop signs up when it comes to across-state-line access," Blackburn said at the summit. Removing those barriers, she added, would lower costs and "insurance companies accountable."
NAIC President Jane Cline, insurance commissioner for West Virginia, told reporters Friday that insurance companies already operate in multiple states. However, they must comply with each state's regulations and coverage mandates.
Kansas Insurance Commissioner Sandy Praeger, who is also chair of the NAIC's Health Insurance and Managed Care Committee, says states have long opposed allowing the federal government to strip them of a critical oversight tool.
"We lose a lot in terms of consumer protections," she told reporters. "Companies will seek out the states that have the least amount of consumer protections in their state laws, file their products there, get them approved, and then come back into my state."
Praeger says a federal mandate to strip states of the right to regulate policies and mandate coverage would likely have fewer benefits, and would thus be cheaper.
"Who do those appeal to? Younger healthier folks, people who don't think they need much insurance, but want some protections," she said. "That means the people who want comprehensive coverage will buy from our state-regulated plans, which will ultimately cost more."
"We are there to protect the market and to keep everyone playing by the same rules. This destabilizes and allows for adverse selection and cherry picking," she said.
Oklahoma Insurance Commissioner and NAIC Secretary-Treasurer Kim Holland said the Republican idea would overrule the democratic process that state legislatures have used to respond to the requests of their constituents.
"There are regions of this country where legislatures have passed a lot of laws to require insurers to cover various services that their constituents are demanding. That contributes to cost," Holland said. "We have to ask ourselves 'are there ways we can insure the appropriate consumer protections we all want while still allowing some flexibility for those folks who are simply priced out of the market?'"
The commissioners also reiterated their opposition to a bill pushed by Democrats that would strip health insurance companies of antitrust protections under the McCarran-Ferguson Act of 1945. The bill overwhelmingly passed the House on Wednesday by a 406-19 vote. A related bill is in the Senate Judiciary Committee. Democratic sponsors say the bill would increase competition among health insurance companies, and thus lower costs. The commissioners say it will do neither.
Praeger says the antitrust exemptions allow smaller health insurance companies to tap into new markets using the aggregated claims experience data of larger competitors.
"That helps them determine their potential risk going forward and helps them price their products," Praeger says. "The jury is still out on whether or not they would be allowed to do this—but we think that would give the larger companies a big advantage and make it more difficult for smaller companies to appropriately price their products. That could potentially cause more market consolidation and limit the competitiveness of the market."
Holland said antitrust protections stabilize state health insurance markets.
"If you have not been here before, you have no history or background on what general losses might be, demographics, or a variety of different information that might assist you in appropriate pricing," she says. "What we don't want is companies coming in and under-pricing their products because it could lead to a solvency concern."
Holland said the antitrust protections promote competition.
"Companies are able to come in with some reasonable assurance of pricing products effectively and then compete on that basis without disrupting the market with inadequate pricing that could have the unintended consequence of a solvency problem," she said.
The commissioners also rejected Democrats' claims that stripping the antitrust protections would stop price fixing and collusion among health insurance companies.
"We currently have laws that we can enforce if we thought that was going on, through our attorney generals, through our insurance departments," Praeger said. "That is a consumer protection issue that we regulate now."
If there were evidence that health insurers were in collusion, Holland said state insurance commissioners would work together to investigate.
"Insurance commissioners across the nation share information. We collaborate on many concerns," Holland said. "We recognize that the large companies that are doing business in many states that would most benefit from some action of that nature would be operating in most of our states. If we were concerned about that in one state, we would share that information with each other and pursue it collectively. That issue has not risen."
Martin Memorial Medical Center in Stuart, FL, has disciplined several employees for taking cell phone pictures of a shark attack victim who later died, and has asked anyone with copies of the photos to destroy them.
The disciplinary actions included written warnings, suspension, and demotion to loss of position, but nobody was fired, the hospital said in a media release. "Ultimately, we have determined that these inappropriate actions were taken by good people who exercised poor judgment," said the hospital in a prepared statement.
Martin Memorial began an internal investigation after hospital officials were told that employees may have violated HIPAA privacy laws involving Stephen Schafer, who died after a Feb. 3 shark attack at Stuart Beach. The hospital said that Schafer's family has been apprised of the privacy breach throughout the investigation.
"Our investigation revealed that cell phones were used to take photographs of Mr. Schafer's injuries by individuals who were in the emergency department at that time," the hospital statement said.
"Because hospital emergency departments are extremely busy, often filled with a variety of individuals—ranging from patients, visitors, physicians, staff, volunteers, students, fire-rescue personnel, and law enforcement—we made a concerted effort to complete a comprehensive investigation and sought as much information as possible from a variety of sources."
"Out of respect for the Schafer family we have asked that all individuals involved in this incident destroy or eliminate any remaining photos and would ask the same of anyone in this community who may happen to come across a photo," the statement read.
Martin Memorial is also investigating reports that people not employed by the hospital were directly involved in the picture taking. "We are following up with the organizations they represent," the statement read.
Citing internal personnel policies, the hospital wouldn't identify the number of people involved in the picture-taking, the names of the employees who were disciplined, their job titles, the organizations they represent, nor what specific actions were taken.
Martin Memorial has started a re-education and re-training program on patient privacy laws and cell phone usage for physicians, staff, and outside personnel working in the hospital.
Brookhaven Memorial Hospital Medical Center, in Patchogue, NY, will pay $2.92 million to settle whistleblower Medicare fraud allegations, the Justice Department said.
DOJ reported in a media release that the 306-bed, not-for-profit, community hospital on Long Island fraudulently inflated outlier charges to Medicare in 2002 and 2003 to get higher reimbursements for cases that were not extraordinarily costly and which didn't qualify for outlier payments.
The settlement resolves a 2005 whistleblower suit filed in federal court in New Jersey. DOJ intervened in November 2009. The whistleblower, identified by DOJ as Tony Kite, will receive $613,000, plus interest, from the settlement.
Brookhaven said it increased charges as permitted by law to cover rising costs for providing care and to maintain the quality of patient care.
"Brookhaven's decision to enter this settlement does not change our position that all of our actions were fully compliant with federal and state laws and regulations," Christopher Banks, Brookhaven's vice president of external relations, said in a media release.
"The hospital entered into this agreement only after much consideration to allow us to continue focusing our energy and resources on our mission of providing high quality care to patients," Banks said.
The U.S. House of Representatives today stripped health insurance companies of antitrust exemptions by a 406-19 vote.
The bill received the support of all Democrats who voted and from 153 Republicans. Nineteen Republicans voted against the bill.
The Health Insurance Industry Fair Competition Act (HR 4626), sponsored by Democratic Representatives Tom Perriello of Virginia and Betsy Markey of Colorado, removes the health insurance industry's antitrust protections under the McCarran-Ferguson Act of 1945.
Markey and Perriello said in a joint media release that passage of the bill means that health insurers would no longer be protected from liability for price fixing, dividing up market territories, or bid rigging.
In the last 14 years, the cosponsors said, there have been 400 mergers among healthcare insurers so that 95% of health insurance markets are "highly concentrated," which means consumers have little or no choice between insurers. This non-competitive market has led to health insurance premiums having more than doubled in the past decade.
Related legislation in the Senate, S 1681, sponsored by Judiciary Committee Chairman Patrick Leahy, D-VT, remains in his committee, where it is expected to face more-concerted resistance from Republicans.
Health insurers criticized the legislation passed by the House Wednesday as misdirected and unnecessary.
"In attempting to solve a problem that doesn't exist, this legislation is the triumph of soundbites over substance," said Karen Ignani, president and CEO of America's Health Insurance Plans in a prepared statement. She added that the National Association of Insurance Commissioners determined anti-competitive practices already are not permitted under the McCarran-Ferguson Act and are not tolerated under state law.
Ignani said the House action had nothing to do with healthcare reform. "Real reform means containing costs to ensure that healthcare is affordable for working families and small businesses," she said. "It's time to clear the political hurdles that stand in the way of real cost containment."
Ignani added that the Congressional Budget Office has said that "passage of this legislation will do nothing to reduce healthcare costs."
"We don't think it's necessary, it's not going to do anything," Brett Lieberman, spokesman for the Blue Cross Blue Shield Association, referring to the House vote. "Health insurers are very regulated, with many state and federal regulations. This isn't going to do anything about the underlying factors that are driving costs—medical expenses and people losing jobs."
HR 4626 has the "strong support" of President Obama, White House Press Secretary Robert Gibbs said this week. "At its core, health reform is all about ensuring that American families and businesses have more choices, benefit from more competition, and have greater control over their own healthcare. Repealing this exemption is an important part of that effort," Gibbs said. "Today, there are no rules outlawing bid rigging, price fixing, and other insurance company practices that will drive up healthcare costs, and often drive up their own profits as well."
On Wednesday, President Obama applauded the House for passing the Health Insurance Industry Fair Competition Act "on a strong bipartisan vote."
"This bill will help ensure that insurers abide by common-sense rules that prevent bid-rigging, price-fixing, and other practices that drive up healthcare costs for the American people."
"Repealing the antitrust exemption for health insurers is an improant step toward achieving reform that gives families and business owners greater control over their healthcare," Obama said. "I look forward to meeting with congressional leaders [today] to continue this critical discussion."
However, a Congressional Budget Office review last fall of a similar bill found that state insurance regulators and state laws "already prohibit issuers of health insurance and medical malpractice insurance from engaging in practices, such as price fixing, bid rigging, and market allocations." HR 4626 does not strip medical malpractice insurers of their antitrust exemption.
In addition, the Congressional Research Service said in a report last month that removing antitrust exemptions from health insurers might actually exacerbate the very problem it hopes to resolve because it prohibits smaller health insurers from setting their rates based on shared data collected by larger competitors.
"Should additional data be unavailable to small insurers in some way, further consolidation in the insurance industry as small insurers merge in order to gain the competitive advantage of additional information is a likely, albeit, ironic, possibility," the CRS report said.
The House's vote came on the same day that the American Medical Association issued a report that found competition in the health insurance industry is disappearing.
The White House has also called for the creation of a federal Health Insurance Rate Authority, a seven-member oversight board comprised of economists, physicians, and consumer and insurance industry representatives who will have the power to review and block premiums rate hikes that they deem are excessive.
The American College of Emergency Physicians today expressed concern over the recent closure of an emergency department in Cincinnati and reports that EDs could soon close in New York and Washington, DC.
Angela Gardner, MD, president of ACEP, says the closures are especially troubling because healthcare reform has stalled and President Obama's new proposal does not address any of the critical problems facing emergency patients.
"The President's proposal calls for investing in community health centers, but we also need to invest in community emergency departments," Gardner said in a media release. "Most people seeking emergency care have the symptoms of a medical emergency and need to be there. Emergency visits are increasing at rapid rates, and as our population ages, even more people will need these vital services."
"Closing these emergency departments will have a disastrous effect—not just on the people who rely on them for emergency care—but also on the neighboring hospitals that will have to absorb more emergency patients," Gardner said. "If you think your ER is crowded now, wait until one in your community closes and then see how bad crowding can get. As people lose jobs or continue to be unemployed, they lose health insurance. Where do they turn for medical help when all other doors are closed to them?"
Despite a stepped-up lobbying effort over the past months, leading physicians' groups appear resigned and exasperated with the idea that Congress will not take permanent action to fix the sustainable growth rate formula before 21% reimbursement cuts for Medicare take effect March 1.
While all but surrendering hope for a permanent solution to end the annual "doc fix" on Capitol Hill, physicians now wonder if an 11th hour temporary fix is doable.
"I don't see the vehicle that Congress can use to come up with that short-term fix," says Lori Heim, MD, president of the American Academy of Family Physicians. If the cuts are to be averted, at least temporarily, Heim says, CMS may have to step in.
"CMS can hold up payments for 15 days, which means that a cut won't go into place, but payments won't go out," she says. "Or CMS could keep paying on time, there will be a cut, but CMS will look to Congress to do a retroactive increase. Those are still two possibilities.
"Either way, physicians are going to start feeling the pinch right away. When your payments are delayed two weeks that means that predicting what your income is going to be starts getting up close and personal."
Cecil Wilson, MD, president-elect of AMA, says, "There is no clue out there [as to] what Congress' intent is. It's a mystery. From our perspective, Congress is diddling with partisan politics while letting Rome burn and not protecting access to care for seniors and the families of our military, all of whom depend upon Medicare and TRICARE."
"The later it gets, the closer it gets to the witching hour, the more concern we have. The thing to be done is to try to shame them into stepping up to the plate and assuming their responsibilities for seniors, military families, baby boomers who are going to be entering Medicare in 2011, when the first wave starts," Wilson says.
In 1997, Congress mandated Medicare spending cuts that were scheduled to begin in 2001. Those cuts have never taken effect, because each year AMA and other healthcare lobbying groups push Congress to delay the cuts. Each annual Band-Aid fix, however, makes the next year's cuts deeper. The latest 21% cuts were to have taken effect on Jan. 1, but Congress pushed the deadline back to March 1.
"There was some hope that during that 60-day window they would get a healthcare reform package done that would also pave the way to do an SGR permanent fix," Heim says. "Part of the problem is now there is still a desire to get healthcare reform done, but it is hitting more obstacles than many people anticipated, and the SGR has been captive to that whole process."
In October, AMA lobbied unsuccessfully for a bill that would have reset the sustainable growth rate formula for physicians back to zero to eliminate around $245 billion debt that has accumulated during the past six years as a result of Congress' annual fixes. The bill mustered only 47 of the 60 votes needed to bring it to the Senate floor. Now, the SRG fix could get even more difficult because of the election year concern in Washington over red ink. Republicans have made the $12.4 trillion national debt, and the $1.4 trillion federal budget deficit key issues against Democrats.
Despite the cloudy budget picture, Wilson says AMA remains insistent upon a permanent fix to the problem, and not another "kick-the-can" deadline extension. He concedes, however, that a temporary fix is more likely with the looming deadline.
"Obviously, the later you get the more likely you fear that that is what Congress will do. What we are saying is that is unacceptable," he says. "A year and a half ago, we provided support for another temporary fix with the commitment from Congress in both houses on both sides of the aisle that in the coming 18 months they would have plenty of time to decide how to fix the problem permanently and get us out of this situation. They have frittered away that opportunity and now they are in the same position they have been in on an annual basis ever since 2001."
"Congress somehow finds a way to do things that they feel are important. When they feel there is urgency about something, they find a way to do it," he says. Heim says AAFP "has pretty much exhausted most of the ideas of our members." At this point, she says, family physicians are being asked to contact their respective members of Congress with a personal plea to address SGR.
"There is some physician fatigue going on here," Heim says. "I'm having more physicians this year than ever before tell me 'I just don't think Congress gets it and I am tired of doing the last-minute fix.'"
Eon Labs Inc. will pay the federal government $3.5 million to settle False Claims Act allegations raised in a whistleblower suit relating to drug maker's Nitroglycerin Sustained Release capsules, the Justice Department announced today.
The FDA ruled in 1999 that Nitroglycerin SR had unproven effectiveness and issued a notice to withdraw approval of the drug, which made it no longer legally eligible for Medicaid reimbursements, DOJ said in a media release.
DOJ alleges that from April 1999 through September 2008, Eon submitted false quarterly reports to the government that misrepresented Nitroglycerin SR's status and failed to report that Nitroglycerin SR no longer qualified for Medicaid reimbursements. As a result, DOJ contends, Eon knowingly submitted fraudulent Medicaid claims.
Eon Labs is a subsidiary of Sandoz Inc., which is a subsidiary of Novartis AG.
"This is the first False Claims Act agreement with a drug company that sought to charge the government for less than effective drugs, and it shows that the Department of Justice will pursue those who market such drugs and expect the government to pay for them," said Carmen Ortiz, US Attorney for the District of Massachusetts, in a media release.
The settlement resolves allegations against Eon in the multi-defendant whistleblower suit United States ex rel. Conrad v. Eon Labs, Inc., et al. Under this settlement, the whistleblower will receive approximately $525,000, DOJ said.
"We expect manufacturers to be truthful about the regulatory status of their drugs, and we will pursue those companies that submit false information to obtain payment for unapproved drugs that are less than effective or on the market illegally," said Tony West, assistant attorney general for the Civil Division, in a media release.
DOJ said it has used the False Claims Act One to recover approximately $2.2 billion in cases involving fraud against federal healthcare programs since January 2009.
When asked to comment on the case, Eon responded with a one-sentence statement: "Eon Labs has reached a settlement with the federal government bringing final closure to the lawsuit regarding Nitroglycerin SR capsules."
If your employee wellness program offers smoking cessation classes, encourages moderate physical activity, and provides healthy food options in the cafeteria, you're on the right track. If the focus of your wellness program is weight loss, however, you're wasting time and money, and maybe even endangering your employees' health. So says Paul Campos, a professor of law at the University of Colorado, and the author of The Obesity Myth: Why America's Obsessions with Weight is Hazardous to Your Health.
"I'm all for encouraging people, including employees, to be physically active, because that has been shown to have all kinds of beneficial health effects," Campos tells HealthLeaders Media.
"But focusing on making people thinner makes no sense, because all the evidence on physical activity illustrates that people gain benefits from physical activity regardless of whether they lose weight in the long term. The vast majority of cases, of course, don't lose weight in the long term, but they still get the benefits of improved physical activity," he says. The weight loss goal is completely unnecessary, which is great news when you consider that it is unsustainable for somewhere from 95% to 98% of the people who try to."
Campos has emerged as a gadfly in the war on fat as a public health menace. He doesn't buy the argument that the nation is facing an obesity epidemic. He notes, for example, that obesity rates for adults and children have leveled off over the last decade.
Two weeks ago, when First Lady Michelle Obama was in the media mounting a campaign against childhood obesity, Campos urged her to "stop picking on fat kids."
Campos says the First Lady's campaign shows that it's socially acceptable to target overweight people. "Don't underestimate the effect of social prejudice here," he says. "It's OK to slam fat people because they are the disfavored group and essentially they are folk devils for whom all these social ills are being dumped on at this particular moment."
If employers want to reduce healthcare costs, he says, they could save more money by targeting other groups instead of the overweight and obese. "Don't hire men because men have much worse health profiles than women. Don't hire anybody over 40, because by far the best predictor of healthcare costs is aging," he says. "You can't do that because it's illegal, but you can threaten to not hire fat people because it's perfectly legal."
Campos says it is true that Americans are bigger and heavier now than they were a generation ago, but he said nobody knows exactly why that is the case. "Here is what we do know: Americans are healthier now than they have ever been before by every possible objective metric," he says. "Not only is life expectancy longer, but rates for almost every major chronic disease are lower and mortality rates for those diseases are lower and rates of disability are lower. We are healthier than we have ever been before but there is apocalyptic nonsense that we have a catastrophe because people are getting fat."
Campos calls wellness programs that stress weight loss the product of "a trickle down effect of all this junk science."
"Do fat employees need to be told they are fat? Is this a valuable piece of information that HR is going to convey to them?" Campos asks. "I have been studying this issue for 10 years and I have never found a middle or upper class white woman in the United States who is above average weight who doesn't know it and wants to lose weight."
"So, the problem is what, a lack of information, not trying hard enough? That is crazy," he says. "You have this moral panic and hysteria and you can say the same idiotic things over again and nobody gets called on it. This is just reefer madness, or satanic ritual abuse in our preschools or whatever nonsense we are preaching, all over again."
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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.
