Utah Med Law

Most of these statistics can be found on-line.  The bulk of this article was derived from a very well-written blog that succinctly states the case of the medical community needs to do a much better job at policing itself to stop medical malpractice from occurring int he first place.  Medical malpractice claims are not the problem - medical malpractice is the problem.  Stop committing medical malpractice and the medical malpractice lawsuits will vanish.

1. Fewer than one-half of 1% of the nation’s doctors face any serious state sanctions each year.
2. Harvard researchers found that 1% of a representative sample of patients treated in New York state hospitals in 1984 were injured, and one-quarter of those died, because of medical negligence.
3. A similar study conducted in California in 1974 found that 0.8% of hospital patients had either been injured by negligence in the hospital or had been hospitalized because of negligent care.
4. In 1976 the HEW Malpractice Commission estimated similarly that one-half of 1% of all patients entering hospitals are injured there due to negligence.
5. It is not unreasonable to estimate that at least 1 percent of doctors in this country deserve some serious disciplinary action each year. Unfortunately far exceeds the actual number of physicians disciplined.
6. Sexual abuse of or sexual misconduct with a patient is also a serious issue. Six to ten percent of psychiatrists surveyed confessed to having engaged in sexual contact with a patient and in a longitudinal study.
7. Two studies surveyed residents to determine the incidence of substance use. Recent alcohol use was extremely high in both groups (87% within the last year for emergency medicine residents; 74% within the past 30 days for surgery residents).
8. Residents work excessive hours! Their longest period without sleep during their first year of residency was an average of 37.6 hours.
9. During a typical work week residents worked an average of 56.9 total hours as on-call shifts (as distinguished from the total average number of hours they worked per week). An on-call shift is a continuous shift at the hospital allowing for little to no sleep; two on-call shifts are typically scheduled per week.
10. Just 5.1 percent of doctors account for 54.2 percent of the malpractice payouts, according to data from the National Practitioner Data Bank.
11. Of the 35,000 doctors who have had two or more malpractice payouts since 1990, only 7.6 percent of them have been disciplined.
12. Only 13 percent of doctors with five medical malpractice payouts have been disciplined.
13. Between 44,000 and 98,000 people die in hospitals annually each year due to preventable medical errors, the Institute of Medicine found.
14. There is no growth in the number of new medical malpractice claims. According to the National Association of Insurance Commissioners, the number of new medical malpractice claims declined by about four percent between 1995 and 2000. There were 90,212 claims filed in 1995; 84,741 in 1996; 85,613 in 1997; 86,211 in 1998; 89,311 in 1999; and 86,480 in 2000.
15. While medical costs have increased by 113 percent since 1987, the amount spent on medical malpractice insurance has increased by just 52 percent over that time.
16. Malpractice insurance costs amount to only 3.2 percent of the average physician’s revenues.
17. Few medical errors ever result in legal claims. Only one malpractice claim is made for every 7.6 hospital injuries, according to a Harvard study.

We represent people and their families that are harmed as a result of medical malpractice across Utah including the counties and cities of Beaver, Box Elder, Cache, Carbon, Daggett, Davis, Duchesne, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Morgan, Piute, Rich, Salt Lake, San Juan, Sanpete, Sevier, Summit, Tooele, Uintah, Utah, Wasatch, Washington, Wayne, Weber, American Fork, Beaver, Bountiful, Brigham City, Cedar City, Delta, Draper, Duchesne, Fillmore, Heber, Kamas, Kanab, Kaysville, Layton, Lehi, Logan, Moab, Murray, Nephi, Ogden, Orem, Park City, Price, Provo, Richfield, Riverton, Roy, Salt Lake City, Sandy, South Jordan, St. George, Tooele, Vernal, West Jordan, and West Valley City.

 This proposed legislation is wrong and wreaks of the special interest influence that is rampant here in Utah.  Here the doctors, their medical malpractice insurers and health care facilities, all very strong professional interests, are lobbying the government to further restrict the rights of the individual harmed as a result of medical malpractice perpetuated upon them by negligent physicians and hospitals.Senate bill 145 is wrong in so many ways:

1) Protecting Health Care Providers:Utah already has 27 statutes protecting health care providers from malpractice claims. Of the 96,000 civil lawsuits filed in 2008, only 229 were malpractice suits. The perception that medical malpractice is driving up health care costs is simply not true.

2) Fiscal Note:The bill currently does not have a fiscal note, but the effect of the bill will be to reduce the amounts that Medicaid will be reimbursed from medical malpractice claims. The loss in state funds will be significant. This is hardly the economic climate for enacting legislation that will take money out of state coffers and put it in the hands of insurance companies.

3) Statute of Repose:The bill requires the parent or guardian of a minor under age 10 to file a medical malpractice claim on the minor's behalf before the minor's 14th birthday (unless the parent has a conflict of interest). The statute already has a 4-year statute of repose, which has been held unconstitutional as applied to minors. (Lee v. Gaufin, 867 P.2d 572 (Utah 1993).) The provision in the current bill will also likely be found unconstitutional. The policy of the state should protect minors, not deprive them of claims before they can decide for themselves.

4) On the Cap:In 1986, Utah enacted its first caps on noneconomic damages--primarily pain and suffering and other damages that are difficult to quantify -- available in malpractice lawsuits, setting the limit at $250,000. Ten years ago, the limit for noneconomic claims was raised to $400,000 due to inflation and today it stands at $480,000. SB 145 would return the limit non-economic damages to $250,000 for cases filed after May 1and there would be no indexing for inflation. In cases where someone has had the wrong leg amputated or a child has suffered brain damage, $250,000 is inadequate to cover the individuals' pain and suffering. According to the Congressional Budget Office, a $250,000 cap on noneconomic damages would only reduce overall health-care costs by 0.5%. Indeed, after the 1986 damage cap went into effect, health-care costs and malpractice insurance premiums continued to go up. If the Legislature is serious about bringing health-care costs under control, it should focus on insurance reform, not tort reform.

5) On Sliding Scale:SB 145 also proposes a sliding scale for attorney fees, from one-third of the award for the first $100,000 down to 15% for awards over $600,000.contingent fees are a just a way for someone to get legal representation. The Legislature shouldn't intrude with a contract between an attorney and a client. There is already a limit on contingent attorney's fees in medical malpractice actions. A contingent fee is the only way most injured people can afford to pursue a claim. Medical malpractice claims are already the hardest and costliest to pursue; the cost of taking a case to trial can be well over 100,000. Once again, the only people whose pockets will benefit from the bill are the insurance companies.

6) Affidavit of Merit:The bill would require an injured person to obtain a statement from a health -care provider in the same specialty against each defendant before he can bring a claim. Before a person can obtain an affidavit of merit, he must obtain all his medical records, find someone willing to testify against a fellow doctor, and have the medical records reviewed and a statement drafted. Which leads to the next problem with the bill: If the allegations in an affidavit of merit “are found to be without reasonable cause," the plaintiff or his or her attorney is held liable for the payment of expenses and attorney fees actually incurred. The effect is once again to intimidate injured people from bringing claims.

7) One Sided Bill:Finally, the bill is one-sided. The defense does not have to provide any expert opinions at the pre-trial stage, has no attorney fee caps, or sliding-scale attorney fees. Those that will be hurt by this bill are injured patients and their access to justice.

There is a despicable thing going on in Winkler Texas.  An experienced long-time nurse thought she was doing the right thing when she reported a doctor in rural Texas for what she thought was unprofessional and dangerous practice.  She did it confidentially and she did it correctly by reporting to the Texas Medical Board that licenses and disciplines doctors.  Now she is on trial for "misuse of official information" and facing jail time.  I have blogged previously about this case. 

Nurse Mitchell is 52, the wife of an oil field mechanic and mother of a teenage son.  She thought she was doing the right thing.  Not only did she think she was doing the right thing but she was upholding a long-time professional obligation that came as part of her nursing heritage.  Nurses are defined in many ways and in different ways depending upon the circumstance but one unchanging definition is that nurses are advocates for their patients.

In this cynical world doctors are oftentimes as being too concerned with the almighty buck.  It is the rub of their profession that they are well paid for what they do.  It is because they are well paid we have high expectations.  We expect doctors to be above it all somehow.  Doctors are supposed to care about patients and the money comes as almost a secondary gain.  That can hardly be the expectation when your doctor solicits his patients to purchase $40 per bottle herbal remedies as appears to be the case here - at least in part. 

This case is a travesty of justice and rings of small town politics and shenanigans between a local doctor and a sheriff conspiring to retaliate against a nurse for doing the right thing.  To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles. Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have “a significant chilling effect” on the reporting of malpractice.This case is also starting to get wide-spread coverage in The New York Times.

The bigger question here is do we really want to chill nurses from reporting bad doctors or bad medical facilities.  Even if Nurse Mitchell was acting vengefully do we want other nurses to forgo reporting for fear of loosing their job, retaliation and possible criminal prosecution?  I for one hope not!

The special interest groups are at it again at the Utah Legislature.  The health insurance industry, medical malpractice insurance companies, health care facilities and doctors are again putting the patient second to their own interests.  

The special interests are trying to:

1. Limit the time which a person injured by medical negligence can sue for compensation;
2. Reduce the amount of money the injured can receive when they are hurt by negligent health care;
3. Make others than themselves pay for the harm they have caused;
4. Decrease the fees paid to attorneys who represent injured people making it less likely that smaller cases will recover compensation for their injuries;
5. Changing the rules of the game to make it tougher for injured plaintiffs to have their day in court; and
6. Cut off avenues of recovery where one health care provider looks like he or she or they are working for someone else again leaving the injured plaintiff out in the cold.

I represent people injured as a result of medical negligence.  I have seen the injuries, the heartache and the pain.  These are real people I am talking about.  If not people you now know they will be people will know.  They are your friends, family or loved ones who may be injured, oftentimes in very personal and lifelong ways, by the doctor who refuses to listen or the facility that treats patients more like a processing plant than a  caring institution.

Personally I think these measures that the special interest groups are trying to pass into law are reprehensible.  Professionally, as an attorney who represents people injured by medical negligence, I think this legislation and other legislation like it is a big money grab by the special interest groups. 

Not a lot of people are aware that there exists a national data bank that keeps track of incompetent and unprofessional health care practitioners.  The data bank is known as the National practitioner's Date Bank.  According to Tulsa World in their recent article titled "20 Years of Malpractice Data Still Mostly Closed to Public" the data base has information on some 460,000 medical malpractice lawsuits whose judgments total $69.7 billion.  The article also states that the data base includes information on 23,788 patient deaths, 8,100 major permanent injuries and 3,896 cases that resulted in quadriplegics, brain damage or lifelong care.

What is startling is that the greater amount of the information held in the data bank is not available to the public.  

Patients make decisions everyday about their health care every day.  To make the best decision possible people need to have all of the available facts.  If the surgeon you are considering cutting into your abdomen is a repating offender and been found liable in repeated medical malpractice cases do you think that information would be critical in your decision process?

There are many reasons advanced by the American Medical Association about why the information needs to be kept secret.  The primary reason is that they claim the information in the data base is inaccurate.  Better some information than no information at all I say.  

There is a paternalistic attitude in medicine that permeates almost all aspects of care.  There is this attitude that somehow patients can not be trusted to make decisions about their own health.  In this day of information consumers of health care are becoming sophisticated buyers and need the information on which to base those decisions.  

Furthermore, most physicians believe that a relatively small number of thier profession account for the vast amount of medical negligence.  If that is the case then teh AMA is missing the mark in policing their own profession.  

Health care providers in Utah, both physicians and facilities, have deep pockets.  Doctors wield that power through lobbying efforts of UMIA (Utah Medical Insurance Association) and UMA (Utah Medical Association).  The health care facilities, most notable Intermountain Health Care (IHC), employ their own lobbyists. 

Every year, year after year, they draft legislation in secret without the input of consumer groups or trial lawyers who represent people injured as a result of medical malpractice.  Every year they draft proposed legislation to further protect their interests and spring it on the public when the legislature is in session.  Every year they want more protection.  My question is who cares for the injured people?  If you doubt that health care providers are incrementally getting more and more protection consider the following statutes that protect health care providers and stop the injured from receiving full and fair redress when injured as a result of medical malpractice:

Limitation of award of non-economic damages in malpractice actions. §78B-3-410

Caps on Damages for Loss of Consortium §30-2-11(7)

Caps on Governmental Immunity Act total damages in most circumstances §63G-7-604

Statute of Repose (claims expire even if patient unaware of injury such as undiagnosed cancer) §78B-3-404

Short Statute of Limitations §78B-3-404

Prelitigation Screening Mandatory Before Lawsuit §78B-3-416

Abrogation of Collateral Source Rule (negligent care provider gets the benefit of insurance that the patient paid for or that taxpayers provide) §78B-3-405

Periodic Payment of Future Damages Delaying by Years or Decades the Patient’s Receipt of an Award §78B-3-414

Arbitration Agreements Enforced §78B-3-421

Restriction on Informed Consent Claims §78B-3-406

Restriction on Warranty, Guaranty and Contract Claims  §78B-3-408

Limits on Use of Admissions of Fault §78B-3-422

Increased Burden of Proof for victims for all Emergency Department Care §58-13-2.5 

16.  Notice of Intent Required Before Lawsuit §78B-3-412

Prohibition on Access to and Use of Peer Review, Incident and Credentialing Materials §26-25-1

Limitation on Therapist’s Duty to Warn §78B-3-604

Immunity and Extension of Good Samaritan Act and Health Care Providers Immunity from Liability Act to nurse practitioners §58-31b-701

Immunity for 911 Calls §69-2-6

Immunity for Emergency Medical Assistance (including paid services) provided by governmental employees §63G-7-302(5)(s)

Immunity for care provider who renders care at scene of emergency without duty to respond §58-13-2

Immunity (except for gross negligence or willful misconduct) for uncompensated care §58-13-3

Immunity for certain care providers during emergency declarations §26-49-501

Immunity to retired health care provider volunteers if care is uncompensated §58-81-104(5)

Medical malpractice cases in Utah are few and far between. Utah Code section 78B-3-406 addresses informed consent and is reproduced at the end of this article.  The problem with law that removes the onus for doing what is right is that those responsible for doing what is right become lazy and fall into a practice that is something far less than what should be required.  This is the case with the Utah informed consent law.

In a recent article in the New York Times Health Section an article titles 'Treating Physicians as Partners, by Way of Informed Consent' by Pauline Chen points out exactly how excess protection allows physicians to practice in what I would call a substandard way.  Doctor Chen references a study reported in the Journal of the Association of American Medical Colleges that talks about involving the patient (novel concept) in the consent process called an informed consent conference versus a physician directed consent. 

The Times article quotes Doctor Kodish, senior author of the study, as saying about standard consent documents “But the documents are at best props in the theater of informed consent. It’s the process itself that is really important.”  There is a great shift in the physician / patient relationship over the last 40 years from one of paternalism to one of partnership according to Doctor Timothy Pawlik the senior author of a recent review of informed consent in surgery and an associate professor of surgery at Johns Hopkins University School of Medicine in Baltimore.

In my opinion the protection afforded to physicians and health care facilities in Utah has contributed to the deterioration of the informed consent requirement.  Are patients truly informed?  I think not - at least not most of the time!

Failure to obtain informed consent -- Proof required of patient -- Defenses -- Consent to health care.

       (1)  When a person submits to health care rendered by a health care provider, it is presumed that actions taken by the health care provider are either expressly or impliedly authorized to be done.  For a patient to recover damages from a health care provider in an action based upon the provider's failure to obtain informed consent, the patient must prove the following:
       (a)  that a provider-patient relationship existed between the patient and health care provider;
       (b)  the health care provider rendered health care to the patient;
       (c)  the patient suffered personal injuries arising out of the health care rendered;
       (d)  the health care rendered carried with it a substantial and significant risk of causing the patient serious harm;
       (e)  the patient was not informed of the substantial and significant risk;
       (f)  a reasonable, prudent person in the patient's position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent; and
       (g)  the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient.
       (2)  In determining what a reasonable, prudent person in the patient's position would do under the circumstances, the finder of fact shall use the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said health care.
       (3)  It shall be a defense to any malpractice action against a health care provider based upon alleged failure to obtain informed consent if:
       (a)  the risk of the serious harm which the patient actually suffered was relatively minor;
       (b)  the risk of serious harm to the patient from the health care provider was commonly known to the public;
       (c)  the patient stated, prior to receiving the health care complained of, that he would accept the health care involved regardless of the risk; or that he did not want to be informed of the matters to which he would be entitled to be informed;

(d)  the health care provider, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent to which risks were disclosed, if the health care provider reasonably believed that additional disclosures could be expected to have a substantial and adverse effect on the patient's condition; or
       (e)  the patient or his representative executed a written consent which sets forth the nature and purpose of the intended health care and which contains a declaration that the patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial results of health care and which acknowledges that health care providers involved have explained his condition and the proposed health care in a satisfactory manner and that all questions asked about the health care and its attendant risks have been answered in a manner satisfactory to the patient or his representative.
       (4)  The written consent shall be a defense to an action against a health care provider based upon failure to obtain informed consent unless the patient proves that the person giving the consent lacked capacity to consent or shows by clear and convincing evidence that the execution
of the written consent was induced by the defendant's affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
       (5)  This act may not be construed to prevent any person 18 years of age or over from refusing to consent to health care for his own person upon personal or religious grounds.
       (6)  Except as provided in Section 76-7-304.5, the following persons are authorized and empowered to consent to any health care not prohibited by law:
       (a)  any parent, whether an adult or a minor, for the parent's minor child;
       (b)  any married person, for a spouse;
       (c)  any person temporarily standing in loco parentis, whether formally serving or not, for the minor under that person's care and any guardian for the guardian's ward;
       (d)  any person 18 years of age or over for that person's parent who is unable by reason of age, physical or mental condition, to provide such consent;
       (e)  any patient 18 years of age or over;
       (f)  any female regardless of age or marital status, when given in connection with her pregnancy or childbirth;
       (g)  in the absence of a parent, any adult for the adult's minor brother or sister; and
       (h)  in the absence of a parent, any grandparent for the grandparent's minor grandchild.
       (7)  A person who in good faith consents or authorizes health care treatment or procedures for another as provided by this act may not be subject to civil liability.

Whistle-blower law is an area of the law that rewards people for informing against entities that are breaking the law.  In return for blowing the whistle they often reap great financial gain when they expose corruption in the workplace.  It is often applied when a person comes forward and reports violation of Medicare anti-kickback rules.

Medicare has explicit rules named Stark laws that governs physician self-referral for Medicare and Medicaid patients. The law is named for United States Congressman Pete Stark, who sponsored the initial bill.  In a nutshell the law prohibits health care facilities from rewarding physicians for referral of patients to those facilities.  Congress believed that physicians should not be enticed into referring patients to specific facilities in exchange for items such as lower rent on office space or kickbacks to the referring physician in fees charged by the facilities.  This was primarily an effort to remove the appearance or actual conflict of interest and to promote the efficient use of health care delivery.

A recent case involving Tulare Regional Medical Center and its parent, the Tulare District Healthcare System, in Tulare California.  Tulare Regional Medical Center agreed to pay more than $2.4 million to settle a recent case.  The hospital and health-care system were accused of providing physicians with office rent and land sales substantially below fair-market value and forgiving debts in exchange for referring patients to the hospital, according to the settlement, which was announced Monday.

The United States Justice Department is charged with the task of investigating and prosecuting these types of cases.  The Justice Department is woefully underfunded and it is generally recognized that these types of cases are widespread and perhaps even ingrained in the way that health care facilities go about doing business.  According to the Fresno Bee the case involved twenty physicians, one doctor's group and a laboratory were involved. The doctors and lab were not identified by name.  The allegations were raised in a whistle-blower lawsuit filed last year in U.S. District Court in Los Angeles by the hospital district's former chief financial officer, Maria Lucy Reimche. As a whistle-blower, she will get about $500,000 as part of the settlement, Justice Department spokesman Thom Mrozek said.

My question is why was the whistle-blower named and not the physician?  If we are trying to expose fraud why name the accuser and not the accused.  There is of course some clause in the settlement that claims that the facility is not admitting any wrongdoing by paying the settlement.  On the other hand we all know facilities do not pay unless they believe they are responsible.  It is ludicrous to me of course that the doctors name remains secret.

Mistakes happen - they happen in everyday life and they happen in hospitals.  I know of no person who ever intentionally intended that a mistake hurt someone while rendering health care.  People that are attracted to the health care profession are, at least to soem degree, altruistic - they care.  I think we can all agree on that whether you are a patient, doctor, nurse or medical malpractice lawyer.

An article in the Associate Press titled "Saying'sorry' pays off for U. of Michigan doctors" is a terrific article that lays out the framework for a program that simply shows that telling the truth and offering compensation before being sued saves can lead to "money, time and feelings."

Not all agree of course.  Some say that admitting mistakes will be used against them in court to prove that they are liable for medical malpractice.  This strikes me as self-serving and deceptive.  If you have made a mistake you should fess-up to it, accept the consequences and move on.  I have settled medical malpractice cases where the health care facility and / or the doctor have admitted their mistakes that harmed a patient.  The patient was compansated and all went on with their lives.

The article quotes David Studdert of Harvard University saying that a review of published studies shows about 181,000 people are severely hurt each year as a result of mistakes at U.S. hospitals but only about 30,000 file legal claims.  Furthermore Studdert says that many people don't sue because they don't discover they're victims of malpractice. 

So what happens if every incident of medical malpractice was told to the vistim or their families.  Medical malpractice rates would skyrocket.  Studdert wrote in a 2007 article in the journal "Health Affairs." The spread of disclosure, the article said, could cause malpractice costs to rise from $5.8 billion now to between $7 billion and $11.3 billion a year.  The next question is - SO WHAT?

The answer of course is that physicians would have to pay more - perhaps much more in medical malpractice premiums.  However, for the first time in history, the true scope of mecical malpractice in the United States might be known and trends and practice models analyzed and medical mistakes might be for the first time addressed in a meaningful way.

That is a goal that we should be all concerned with.

Two registered nurses in Winkler County in West Texas are facing criminal indictments because they wanted to be advocates for their patients.  I realize there are two sides to every story but so far this sounds outrageous!  If this case is allowed to go forward it will have a very chilling effect on nurses who want and need and should be encouraged to speak out in behalf of their patients.  

As a retired nurse I know that health care facilities in which nurses work cater to physicians.  Why, you ask - because it is the doctors that bring in the patients for procedures and treatments for which the facility charges - the almighty dollar!  When registered nurses act as advocates for their patients, as they are taught to do and take an oath to do, they are often thought as meddling or exaggerating - standing in the way of what the doctor thinks must be done.  Who speaks for the patient?  Often their nurse does, that's who!

For local flavor and non-biased review of the actors see this article in the Fort Mills Times - Texas Nurses Faces Charges After Filing Complaint.

Please read the below news release reprinted from the Texas Nurses Association and consider donating to the TNA Legal Defense Fund.

FOR IMMEDIATE RELEASE

July 16, 2009

CONTACT:
Stacy Prince, 301-628-5038
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Joyce Cunningham, 512-452-0645
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SILVER SPRING, MD – The American Nurses Association (ANA), which represents the interests of the nation’s 2.9 million registered nurses, is joining forces with the Texas Nurses Association (TNA) to strongly criticize the recent indictment and prosecution of two registered nurses in Winkler County, Texas, for reporting to the Texas Medical Board their concerns about a physician’s standard of practice at the Winkler County Memorial Hospital in Kermit, Texas. ANA and TNA are gravely concerned about the chilling effect the county’s actions could have on future nurse “whistle blowers” who advocate for their patients in the nation’s hospitals. An initial hearing on the nurses’ motions to dismiss the case was held July 15 in the Winkler County Courthouse but no rulings were made on any of the motions.
“ANA wants Winkler County to know the world is watching – we will be monitoring this case closely in the hope that the apparent abuse of prosecutorial discretion will be corrected,” said ANA President Rebecca M. Patton, MSN, RN, CNOR. “It is outrageous to file criminal felony charges against these nurses based on allegations that they raised concerns over a physician’s actions. This undermines one of the basic tenets of the nurse’s Code of Ethics – nurses have a duty to advocate for the health and safety of their patients, and that is what these nurses were doing.”

Winkler County Memorial Hospital nurses Anne Mitchell, RN and Vicki Galle, RN, were charged with violating the law by sending an anonymous letter to the Texas Medical Board that expressed concern about a physician at the hospital. After receiving a complaint of harassment from the physician, the Winkler County Sheriff’s Department initiated an investigation that resulted in criminal charges against both nurses.

Because the two nurses worked for a county hospital – and included medical record numbers of the patients in their reporting (no patient names were disclosed) – the County Attorney’s office indicted them on misuse of official information – a third-degree felony that carries potential penalties of two-to-ten years’ imprisonment and a maximum fine of $10,000. Mitchell and Galle, both long-time nurses at the hospital, were fired from their positions.

ANA and TNA believe the law is being misinterpreted to wrongly prosecute Mitchell and Galle as punishment for filing a complaint against a physician. “No nurse should be penalized because he or she is advocating for patient safety,” said Clair B. Jordan, MSN, RN, executive director of TNA. “The nursing profession is standing behind these two nurses right now.”

The Texas Medical Board has written a letter to the Winkler County and District Attorneys stating that it is improper to criminally prosecute people for raising complaints with the Texas Medical Board; that the complaints were confidential and not subject to subpoena; and that under federal law the Texas Medical Board is exempt from Health Insurance Portability and Accountability Act (HIPAA) requirements, so there was no violation of any HIPAA laws.

TNA announced that it has established the TNA Legal Defense Fund for the Winkler County nurses, with a goal of raising at least $10,000 for their defense. TNA plans to match every dollar contributed by individual nurses up to $5,000. TNA and ANA call on all nurses to contribute to the fund. To ake a donation please visit www.texasnurses.org.

The ANA is the only full-service professional organization representing the interests of the nation's 2.9 million registered nurses through its 51 constituent member nurses associations and its 24 specialty nursing and workforce advocacy affiliate organizations that currently connect to ANA as affiliates. The ANA advances the nursing profession by fostering high standards of nursing practice, promoting the rights of nurses in the workplace, projecting a positive and realistic view of nursing, and by lobbying the Congress and regulatory agencies on health care issues affecting nurses and the public.

Texas Nurses Association (www.texasnurses.org) is a professional organization of registered nurses, and the only Texas affiliate of the American Nurses Association. Texas Nurses Association seeks to promote excellence in nursing by helping nurses achieve quality patient care through high standards of practice, legislative involvement, and public policy advocacy.