By Mary Ann Roser , reprinted from the Austin American-Statesman
A law that took effect this month bars the Texas Medical Board from considering complaints against doctors if they come from anonymous sources like the complaint from two Winkler County nurses who lost their jobs after anonymously urging the board to investigate a doctor in 2009.
The legislation was a victory for a physicians’ group that sued the medical board in December 2007 over allegations that it was abusing the anonymous complaint process. The suit also accused a former president of the board of using her husband to file anonymous complaints against her competitors to get those physicians disciplined.
Some doctors in the group and others lobbied the Legislature for several years to ban the practice and wanted lawmakers to snip the board’s powers. One such leader, Dr. Steve Hotze of Houston, is a proponent of alternative medicine and president of Texans for Patients’ and Physicians’ Rights , whose No. 1 goal is eliminating anonymous complaints from insurance companies, hospitals, pharmaceutical companies, attorneys and competitors.
Some patients and their advocates said they fear the law will have a chilling effect on people’s willingness to complain and ultimately will harm patient safety.
Others, including lawmakers who worked on the legislation from both sides, said they don’t think it will have much effect. They note that anonymous complaints are a small percentage of the total — about 4 percent — and that the medical board will continue to guard the identities of complainants, which are kept confidential. That is, the board knows who’s complaining but won’t tell anyone. With anonymous complaints, the board doesn’t know the complainant’s identity.
The new law, House Bill 680, also requires the board to inform doctors when pharmaceutical companies and insurers file complaints against them.
Since a 2003 tort law made it tougher for consumers to sue doctors, the Texas Medical Board has become the sole recourse for some patients who can’t find lawyers to take their malpractice case because of damage limits. Those patients might not get justice — or money — in court, but they still want the doctor punished and the public to know about it.
Michael Beckham, 57, of Austin said he was turned down by about 25 lawyers before he complained to the Texas Medical Board a few weeks ago after a painful, costly surgery on his back that had to be redone by another doctor.
“I had trepidation, and I still do” about filing a complaint with the medical board, said Beckham, who declined to name the doctor for this article. He said he worries about being blackballed by other doctors, a concern the medical board hears from patients occasionally.
“My personal feeling is, if you were working in the medical community like these two (Winkler County) nurses,” they also should be concerned, Beckham said. “Look at what happened to them.”
Anne Mitchell and Vickilyn Galle, nurses at Winkler County Memorial Hospital in Kermit in West Texas, were charged with felony misuse of official information and fired after officials learned they had filed an anonymous complaint with the medical board about the care being provided by one of the hospital’s doctors, Rolando Arafiles Jr. Arafiles got wind of the complaint and contacted Winkler County Sheriff Robert Roberts, a personal friend. Roberts seized the nurses’ computers and found their letter to the board and figured out their identities.
In the end, the charges against Galle were dropped before the trial, and Mitchell was found not guilty. The nurses split a $750,000 financial settlement from the county, and charges were pressed against the sheriff, Arafiles and others.
The medical board also reprimanded Arafiles and put him on probation for his role in retaliating against the nurses, for improperly treating several patients with thyroid problems and other conditions, and for mishandling patients in the hospital’s emergency department. He must take classes, be monitored by another doctor and pay a $5,000 fine, the board’s order says.
“Though I do not know if the Winkler County nurses would have filed their complaints if they had to attach their names, the new law would keep their names confidential,” said state Rep. Donna Howard, D-Austin . “One of the problems in the Winkler County case was that the Texas Medical Board released the complaints to county law enforcement personnel who then identified the nurses and retaliated against them. Another piece of legislation that I sponsored in the House, SB 192 , attempted to address this by significantly increasing the penalty against a license holder (doctor) who retaliates against a nurse” for trying to protect patients.
During this year’s legislative session, Howard fended off attempts to require that doctors be informed when nurses or other medical professionals file complaints against them. Howard did not directly answer whether she expects such efforts against nurses and other medical professionals to be resurrected in future years.
James Willmann, general counsel and director of governmental affairs for the Texas Nurses Association, said he doesn’t expect that to happen but said the association will remain vigilant.
Nor is he worried about the ban on anonymous complaints.
“There are so few complaints that are truly anonymous,” Willmann said. “We thought it was a fair compromise.”
Anonymous complaints accounted for 4 percent of the 6,849 complaints received by the Texas Medical Board last year, or about 275 complaints, according to the board.
“It’s a small percent of what we did,” said Mari Robinson, executive director of the board. “We want people to be able to come to us with complaints, but change is always, well, change. You don’t know what’s going to happen.”
The bill’s author, state Rep. Charles Schwertner, a Georgetown orthopedic surgeon, called the legislation “an important reform to the Texas Medical Board.” He wrote in an email that it “will provide accountability and transparency to all actions taken by the board, safeguard patient access to their doctor, and ensure greater quality of care for all Texans.”
Alex Winslow, executive director of Texas Watch, an advocacy group that monitors corporations, insurance and regulatory issues, called the law “a step in the wrong direction” that “could endanger the safety of patients.”
“The bottom line is,” he wrote in an email, “we should be adopting policies that encourage people to bring information forward — not putting limits on how information about violations of patient safety come to light.”