Andy9o8 0 #1 October 19, 2009 http://news.nurse.com/article/20090721/NATIONAL02/307210012/-1/frontpage http://www.kevinmd.com/blog/2009/10/nurses-face-jail-time-reporting-doctor-texas-medical-board.html Quote Texas RNs Face Criminal Charges for Complaint Against Physician Texas state and national nurses associations are rallying to the defense of two West Texas nurses who were indicted after filing an anonymous complaint about a doctor’s practices with the Texas Medical Board, the Associated Press reported. The nurses each face up to 10 years in prison if convicted. RNs Vicki Galle and Anne Mitchell, are charged with misuse of official information for allegedly improperly accessing information that was not public “with intent to harm” the doctor for “a nongovernmental purpose,” according to an AP story in the Houston Chronicle. In the complaint to the medical board, the nurses state that Rolando Arafiles, MD, improperly encouraged patients he saw at the Winkler County Memorial Hospital ED and the county’s rural health clinic to buy herbal medicines from him and he had wanted to use hospital supplies to perform a procedure at a patient’s home. “I don’t know that I’ve ever seen a criminal prosecution for providing information to the medical board. Ever,” Mari Robinson, executive director of the Texas Medical Board, said in the AP article. Law enforcement became involved when Arafiles filed a harassment complaint with the Winkler County Sheriff's Department. Because the two nurses worked for a county hospital — and included medical record numbers of the patients in their report (no patient names were disclosed) — they were charged with the felony crime of misuse of official information, according to an American Nurses Association/Texas Nurses Association joint news release. “This whole criminal case is just outrageous,” Clair Jordan, RN, MSN, executive director of the TNA, said on the association’s Web site. In a joint ANA/TNA news release, the associations advocate strongly for the nurses’ actions and express concern about the “chilling effect” the case could have on “future nurse ‘whistle blowers’ who advocate for their patients in the nation’s hospitals.” “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,” ANA President Rebecca M. Patton, RN, MSN, CNOR, said in the news release. “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.” The Texas Medical Board has written a letter to the Winkler County District Attorney 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 board is exempt from Health Insurance Portability and Accountability Act (HIPAA) requirements, so there was no violation of any HIPAA laws. In the meantime, 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. Quote Share this post Link to post Share on other sites
georgerussia 0 #2 October 19, 2009 Quote misuse of official information for allegedly improperly accessing information that was not public “with intent to harm” the doctor for “a nongovernmental purpose,” Went through like three times, didn't understand anything. Could someone translate this to English please?* Don't pray for me if you wanna help - just send me a check. * Quote Share this post Link to post Share on other sites
Andy9o8 0 #3 October 19, 2009 QuoteQuote misuse of official information for allegedly improperly accessing information that was not public “with intent to harm” the doctor for “a nongovernmental purpose,” Went through like three times, didn't understand anything. Could someone translate this to English please? It's very tortured language, like a lot of "Legalese" is, but it does make sense. Let me try to put it plainer language: - Very generally: Whether certain conduct is a crime often depends upon the person's INTENT - if the intent is wrongful, the conduct is a crime, but if the person had no wrongful intent, the same conduct is usually not a crime. - There apparently is a Texas law that makes it unlawful to either (a) "misuse official information" or to (b) "improperly access [meaning: gain access to] non-public information" if your INTENT is to either (1) use that information to harm someone else, or (2) use that information for a non-governmental purpose. To over-simplify it, the law basically makes it a crime to (among other things) invade private information if you intend to use that private information to harm someone else. - The nurses saw/heard the doctor doing certain (arguably improper) things while he was rendering private, confidential medical care to patients. The nurses then anonymously reported that conduct to the state medical board. - The doctor claims that by reporting his conduct to the medical board, the nurses were "accessing or using private information" (disclosing confidential doctor-patient communications and treatment) for the purpose of "harming the doctor" (trying to cause the doctor to be disciplined) - thereby violating the Texas law. I hope this helps (and does not make it more complicated!) Quote Share this post Link to post Share on other sites
masterrig 1 #4 October 19, 2009 Not very 'anonymous', after all. I live in West Texas and this story was all-over the local news then... nothing. The two nurses involved, felt they were doing the right thing in reporting their story to the State Medical Boardoard. I never have heard how, their 'anonimity' was revealed. They were told when they became nurses to reveal any 'improper' behavior on the part of members of their medical community. So much for trying to do the right thing! Chuck Quote Share this post Link to post Share on other sites
georgerussia 0 #5 October 20, 2009 Quote It's very tortured language, like a lot of "Legalese" is, but it does make sense. Let me try to put it plainer language: - Very generally: Whether certain conduct is a crime often depends upon the person's INTENT - if the intent is wrongful, the conduct is a crime, but if the person had no wrongful intent, the same conduct is usually not a crime. - There apparently is a Texas law that makes it unlawful to either (a) "misuse official information" or to (b) "improperly access [meaning: gain access to] non-public information" if your INTENT is to either (1) use that information to harm someone else, or (2) use that information for a non-governmental purpose. To over-simplify it, the law basically makes it a crime to (among other things) invade private information if you intend to use that private information to harm someone else. - The nurses saw/heard the doctor doing certain (arguably improper) things while he was rendering private, confidential medical care to patients. The nurses then anonymously reported that conduct to the state medical board. - The doctor claims that by reporting his conduct to the medical board, the nurses were "accessing or using private information" (disclosing confidential doctor-patient communications and treatment) for the purpose of "harming the doctor" (trying to cause the doctor to be disciplined) - thereby violating the Texas law. I hope this helps (and does not make it more complicated!) Thank you Andy, it's much clearer now. The only part which isn't clear yet is that basically this law makes almost all whistle-blowing illegal, as in most cases whistle blowing consist of improperly accessing/disclosing non-public information with intent to harm someone - even though it might not be the goal of the whistleblower to harm that person, a reasonable person using common sense would expect the harm, which may be enough to prove intent.* Don't pray for me if you wanna help - just send me a check. * Quote Share this post Link to post Share on other sites
birdshit 0 #6 October 20, 2009 There is more than one way to skin a cat... Her doc, have some of this kool aid... Quote Share this post Link to post Share on other sites
birdshit 0 #7 October 20, 2009 Quote The only part which isn't clear yet is that basically this law makes almost all whistle-blowing illegal Welcome to Texas Texas favors the rich and businesses much more than the rights of the average joe... Quote Share this post Link to post Share on other sites
kbordson 8 #8 October 20, 2009 This is a very concerning situation. There are several things to consider 1. Was this an appropriate complaint to the State Board of Healing Arts? I would argue "yes" - I can definitely see a conflict of interests on the part of the physician (recommending a therapy that... coincidentally... he has "right here") Quote What are the grounds for disciplinary action? The grounds are enumerated in Section 334.100 RSMo., which may be obtained from MSMA. Each set of facts is unique to itself. The statutory grounds are vague, wide sweeping, and subject to interpretation when compared to the facts. Physicians should be aware that the Missouri State Board of Registration for the Healing Arts has used Section 334.100 (4) RSMo., prohibiting "misconduct, fraud, deception, misrepresentation, dishonesty, unethical conduct, or unprofessional conduct" broadly, to discipline physicians for activities which may be questionable but not specifically listed as a separate ground for discipline. source 2. Was it appropriately submitted? I would argue "no." My comments here would be with respect to the use of the patients medical record number (HIPPA - personal identifier), but I don't know that the nurses should be charged with felony convictions BY a third party (ie NOT the patient that had the HIPPA violation) I have to agree with Clair Jordan: “This whole criminal case is just outrageous” -edit to add accidentally deleted words Quote Share this post Link to post Share on other sites
Andy9o8 0 #9 October 20, 2009 I believe that the nurses' report to the state medical board was not a violation of HIPAA; rather, it fell under an exemption from HIPAA confidentiality. Specifically, HIPAA allows doctors and health care providers to provide information about a person´s health care to "health oversight agencies". HIPAA permits health care providers to disclose this information without authorization if the disclosure is for any purpose for which the agency is legally authorized to collect information. Thus, I think the nurses are in (HIPAA violation) jeopardy only if the state Medical Board is deemed to not fall within the definition of "health oversight agencies." But in my opinion, the Board is such an agency. Obviously, that will now have to be ruled upon by the court in this case. (For example, the Texas Department of Insurance has issued administrative rulings stating that it does consider itself to be a "health oversight agency" to which confidential information may be reported as an exemption from HIPAA.) From one article on this case: QuoteThe Texas Medical Board sent a letter to the attorneys stating that it is improper to criminally prosecute people for raising complaints with the board; that the complaints were confidential and not subject to subpoena; that the board is exempt from federal HIPAA law; and that, on the contrary, the board depends on reporting from health care professionals to carry out its duty of protecting the public from improper practitioners. I believe the TMB's position on this legal issue is the correct one. In fact, it seems supported by the US Department of Health & Human Services: http://74.125.113.132/search?q=cache:AhT8-xHlRwQJ:www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter03-15.pdf+hipaa+%22health+oversight+agencies%22&cd=6&hl=en&ct=clnk&gl=us Quote While the HIPAA Privacy Rule provides for certain privacy rights for the subjects of PHI, those rights have limitations. For example, the HIPAA privacy Rule provides that PHI may be used and disclosed without the authorization of the subject of that information to the extent a law requires the production of that information. (See 45 CFR 164.512(a)). The HIPAA Privacy Rule also provides that PHI may be used and disclosed without the authorization of the subject of that information for health oversight activities that are authorized by law. Examples are inspection, licensure and other activities necessary for the appropriate oversight of entities subject to government regulatory programs for which health information is necessary for determining compliance with program standards. (See 45 CFR 164.512(d)) ..... Government regulatory programs that function as health oversight agencies that need PHI to determine a facility’s compliance with program standards do not need to obtain an individual’s authorization to use that individual’s health records for the appropriate oversight of entities subject to that program’s regulation. The health oversight agency must limit its uses and disclosures of this PHI to the minimum necessary to accomplish the program’s regulatory purpose, and it may not use records obtained under this exception to investigate the individual whose records they have obtained. Disclosures made pursuant to a law that mandates the production of information are not subject to any limitations under the HIPAA Privacy Rule so long as the disclosure complies with and is limited to the relevant requirements of such law. Quote Share this post Link to post Share on other sites
