Nurse whistleblowers cleared; sheriff and attorney get jail time.

By Michael L. Smith, R.R.T., J.D.

Two nurse whistleblowers were cleared of wrongdoing in a Texas case, but the sheriff and county attorney that prosecuted the nurses have been sentenced to jail followed by years of probation. Undaunted by the conviction, the county attorney appealed, but the court of appeals upheld the conviction.

Whistleblowers are individuals who report wrongful conduct outside normal chains of command after the normal chains of command have failed. Unfortunately, the people in the normal chains of command may be participating in the wrongful conduct, or profiting from the wrongful conduct. The individual aware of the conduct must either participate in the conduct or become a whistleblower. The most common conduct reported by whistleblowers in healthcare concern fraud and abuse directed at the Medicare program, but quality concerns are also common. The Texas case was unusual because of the audacity of the officials involved.

The two nurses were employed by a 19-bed critical-access hospital in rural Texas. One of the nurses was the hospital's compliance officer and the other was the hospital's quality assurance coordinator. Both of the nurses had numerous concerns about lapses in the standard of care provided by one of the doctors at the hospital. The nurses were also concerned because the same doctor was performing surgical procedures that the hospital was not authorized by federal and state laws to provide. When the nurses brought their concerns to the hospital administrator and the hospital board, the hospital administrator prohibited the nurses from submitting any cases for outside review and barred them from attending any quality review meetings.

Since their concerns were not addressed by the hospital and the Board, the nurses made an anonymous complaint to the Texas Medical Board about the substandard care provided by the physician. The Texas Medical Board began an investigation of the physician. The doctor suspected the complaint was made by another physician at the hospital, so he sought the help of the hospital administrator to determine who made the anonymous complaint to the Medical Board.

With the help of the hospital administrator, the physician learned the complaint was probably made by the two nurses. The physician convinced the sheriff, who was also the doctor's patient and business partner, to prove the nurses made the complaint.

The sheriff and county attorney conducted a criminal investigation and interviewed the nurses. Eventually, the sheriff and county attorney obtained a search warrant of the nurses' homes where the complaint to the Medical Board was found on a computer. The hospital administrator and county attorney were advised that the nurses were protected by whistleblower laws.

The hospital administrator terminated the nurses despite knowing they were protected by whistleblower laws. The sheriff and county attorney obtained indictments of the nurses, which eventually led to a criminal trial of one of the nurses. The charges against one of the nurses were inexplicably dropped just before the trial. The jury acquitted the remaining nurse after deliberating for only about an hour.

Following the criminal trial of the nurse, the Texas Department of Health cited the hospital for numerous violations based upon the complaints made by the nurses. The Texas Medical Board filed a formal complaint against the doctor and suspended his license, again after the nurse was acquitted.

Eventually, a grand jury indicted the doctor, the hospital administrator, the sheriff, and the county attorney for numerous charges based upon the retaliation against the nurses. Ironically, the sheriff and county attorney were charged with misuse of official information, which was the same charge that had been brought against the nurses.

Michael L. Smith, JD, RRT is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Fla. This article is for general information only and is not a substitute for formal legal advice.

This article was originally published in Advance for Respiratory Care and Sleep Medicine.