Prosecution rests in nurse trial - Odessa American: News

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Prosecution rests in nurse trial

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Posted: Wednesday, February 10, 2010 12:00 am

A case that has outraged the nursing community and attracted national media attention to the Permian Basin drew closer to conclusion Wednesday as the prosecution rested its case against a former Kermit nurse charged with misuse of official information.

Dozens of nurses packed the second floor of the Andrews County Courthouse and watched for the second straight day as lawyers quibbled over why 52-year-old Anne Mitchell filed an anonymous complaint to the Texas Medical Board against Dr. Rolando G. Arafiles Jr. In the letter, Mitchell referenced five cases in which she said Arafiles either botched or performed an unauthorized procedure while working at the Winkler County Memorial Hospital. 

The cases are still under review by the medical board and hospital officials said Arafiles was admonished but not disciplined for the misconduct.

Mitchell and Vickilyn Galle, who assisted in drafting the letter, were indicted and fired from the hospital after the authorities discovered portions of the letter on one of the nurses’ work computers. Prosecutors recently dropped the charges against Galle. Mitchell, who insists she was simply performing her duty as nurse, faces up to 10 years in prison if convicted as charged.

Winkler County Attorney Scott M. Tidwell, who is prosecuting the case on behalf of District Attorney Michael L. Fostel, has sought to portray Mitchell as a trouble maker at the hospital who disliked Arafiles from the first day she met him.

Several witnesses this week have said they heard Mitchell make disparaging and unprofessional remarks about the doctor. On Wednesday, nurse Peggy Armstrong testified she was alarmed to hear Mitchell say, “We need to get rid of that son of a bitch.”

Another witness, former county commissioner Tommy Smith, said he heard Mitchell refer to Arafiles as a “witch doctor” during a kaffeeklatsch in December 2008.

But under Texas law, Tidwell also has to prove Mitchell sent the letter for a “nongovernmental” purpose. After the prosecution rested Wednesday, Brian Carney, Mitchell’s co-defense counsel, argued for a directed verdict in the case because he said the state failed to prove that part of the case.

“There’s not one scintilla of evidence to show (the letter) was sent for a nongovernmental purpose,” Carney said. He pointed out that Winkler County Sheriff Robert L. Roberts Jr., who is friends with Arafiles and led the investigation, acknowledged during cross examination that the medical board is a government body and authorized to receive anonymous complaints and confidential medical records.

But District Judge James L. Rex denied the motion — narrowly, he said — and the defense began calling witnesses of its own. Naomi Warren, a nurse practitioner in Monahans, said she filed multiple complaints against Arafiles and left the hospital because she was frustrated by the administration’s intransigence and apparent refusal to take corrective action against the doctor.

“Every time I think that maybe it’s going to be better or we’re going to hear something from the medical board, nothing changes,” Warren said, her voice cracking at times. “I’ve come to expect it.”

James H. Willmann, general counsel and director of governmental affairs at the Texas Nurses Association, has attended the trial each day and said he is optimistic about an acquittal. “We’re here because of the potential chilling effect,” Willmann said in an interview. “It’s the possibility that if a nurse fulfills her duty, they could be not only retaliated against but hit with a criminal case where you don’t have any choice but to defend yourself to avoid jail time and loss of civil rights.”

Willmann said the unprecedented nature of Mitchell’s case has prompted the Texas Nurses Association to look for ways to strengthen whistleblower laws for nurses.

“We do know that one of the deficiencies in Texas law, is that the whistle blower protections in the Nursing Practice Act do not apply to government and publicly employed nurses,” he said. “They have the protections of the Texas public whistleblower act, but its protections are not as strong as the nursing protection act.”

Mitchell’s case became so polarizing in Kermit that it was moved to Andrews County. But the extra distance did not deter some Kermit residents from attending the trial.

“There are a lot of people who are really upset about this,” Stafanie Haley, president of the Kermit Chamber of Commerce, said during a break Wednesday. “You hear people talking about it all the time.”

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