When nurses are prosecuted for advocacy, we all lose

By LINDA RECORD SRUNGARAM, RN
Houston Chronicle
August 22, 2009

Registered nurses have an ethical and professional obligation to serve as patient advocates at all times.

West Texas registered nurses Anne Mitchell and Vicki Galle are now experiencing the costs of that obligation.

You may have read about their story. “Nurses facing charges for telling on doctor,” read one headline. These RNs, who practice at Winkler County Memorial Hospital in Kermit, have been indicted for filing an anonymous complaint about a doctor's practices with the Texas Medical Board.

The nurses complained that the doctor improperly encouraged patients to buy herbal medicines from him and had wanted to use hospital supplies to perform a procedure at a patient's home.
The doctor, told by the board that he was under investigation, filed a harassment complaint with the Winkler County authorities. Winkler County District Attorney Michael Fostel indicted them for misuse of official information. The indictments filed against them allege they improperly accessed information that was not public “with intent to harm” the doctor for “a nongovernmental purpose.”

Mari Robinson, executive director of the Texas Medical Board, told the Associated Press that she had never seen such a criminal prosecution. “I don't know that I've ever seen a criminal prosecution for providing information to the medical board. Ever,” she said.

By embarking on this prosecution, Fostel has disregarded the opinion of the state medical board, the commonly accepted practices of health care practitioners around the country and the public interest in protecting whistle-blowers. Fostel's case has only been allowed to proceed because the legal protections in Texas for whistle-blowing nurses are weak.

These nurses did nothing wrong and in fact should be congratulated. When a physician or hospital is seriously endangering patients, as these nurses claim was happening, they must speak to the proper regulators and demand an investigation. Countless lives have been saved across this country as the result of this kind of whistle-blowing.

I have worked as an emergency room registered nurse in several Houston hospitals for the last 33 years. I have seen the barriers already in place to stop nurses from speaking out on behalf of patients. If this prosecution continues, the effect will be chilling in hospitals throughout Texas. Nurses will be taught that when they see unsafe patient care, they have to avert their eyes and shut their mouths, or face the danger of being hauled up on charges.

Other states recognize that nurses must be protected from prosecution in whistle-blower cases and that their professional responsibility to advocate for their patients should be legally protected. Unfortunately, Texas nurses suffer under the much-derided “Safe Harbor Law.” Safe Harbor is flawed and leaves both the RN and the patient in a Catch-22 situation
This law — supported by the Texas Nurses Association, a group largely composed of nurse managers who usually don't provide hands-on care — has proven to be inadequate. It requires nurses to take the matter to an internal peer review process and only then provides whistle-blower protections if they do. This provision violates the basic premise of whistle-blower laws — to free up an individual from the internal politics of the workplace.

The case of the Winkler County nurses is unfortunately just the tip of the iceberg. For example, • an RN working at a San Antonio dialysis center was fired after she voiced concerns about being assigned too many patients per nurse to provide proper care; a nurse in a South Texas hospital reported that her manager told the RNs working in the intensive care unit there that they have no business invoking Safe Harbor because they are ICU nurses who “should be able to handle it”; another San Antonio RN worked in a hospital where a notice was posted on the employee bulletin board stating that anyone who claimed Safe Harbor would be investigated and could face discipline, even termination.

But there is hope — and a solution for these problems. The National Nurses Organizing Committee-Texas, a network of activist RNs, supports legislation to bring our state up to national standards for whistle-blower protection. The state bill is modeled after NNOC's national bill, the National Nursing Shortage Reform and Patient Advocacy Act.

“The predicament of the West Texas nurses speaks to the inadequacy of the state's existing Safe Harbor Law,” said state Rep. Senfronia Thompson, D-Houston. “I proudly sponsored NNOC's The Texas Hospital Patient Protection Act, HB 1489, that would require standards be implemented to ensure the protection of all hospital patients in Texas.”

As registered nurses, we must accept no substitutes when it comes to patient care — and demand that nurses who report unsafe care be protected from legal retribution for their advocacy.

Srungaram has worked in Houston hospitals as an emergency room and critical care nurse for the last 33 years.