South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

Whistle-blowers are heroes.  Whistle-blowers do the right thing.  Anne Mitchell is a whistle-blower.   She is a hero.  The way she was treated is a travesty.   Numerous articles and websites have discussed the case of Nurse Mitchell. The NY Times ran this article. 

Anne Mitchell was indicted and threatened with 10 years in prison for doing what she knew a nurse must: inform state regulators that a doctor was practicing bad medicine.  She was fingerprinted and photographed at the jail last June.  Mrs. Mitchell stood trial in Texas state court for “misuse of official information,” a third-degree felony in Texas.   Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws.

“It was surreal,” said Mrs. Mitchell, 52, the wife of an oil field mechanic and mother of a teenage son. “I said how can this be? You can’t go to prison for doing the right thing.”

The prosecutor said he would show that Mrs. Mitchell had a history of making “inflammatory” statements about Dr. Rolando G. Arafiles Jr. and intended to damage his reputation when she reported him last April to the Texas Medical Board, which licenses and disciplines doctors.  Mitchell had assumed the letter she wrote was anonymous.

When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff obtained a search warrant to seize two nurses’ work computers and found the letter.  Mitchell was fired without explanation.  The prosecution has stained her reputations and drained her savings. With felony charges pending, she has been able to find work. 

Of course the prosecution ignores laws to protect whistle-blowers, and ethical requirements that Mrs. Mitchell had including a professional obligation to protect patients from a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.

It was not long after the public hospital hired Dr. Arafiles in 2008 that the nurses said they began to worry. They sounded internal alarms but felt they were not being heeded by administrators.  Frustrated and fearing for patients, they directed the medical board to six cases “of concern” that were identified by file numbers but not by patient names. The letter also mentioned that Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side.

Mrs. Mitchell typed the letter and mailed it with a separate complaint signed by a third nurse, who wrote that she had resigned because of similar concerns about Dr. Arafiles. That nurse was not charged.

To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles.

Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have “a significant chilling effect” on the reporting of malpractice.

Nonetheless, the sheriff, Robert L. Roberts Jr., and the prosecutor, Scott M. Tidwell, had expressed confidence (and arrogance) in their case.  A Texas jury found veteran nurse Anne Mitchell not guilty of harassment. The verdict was announced after the four day prosecution. Jurors took less than an hour to reach a unanimous verdict.  The verdict has a profound effect on whistle-blowers in Texas and nationwide. Arafiles is still practicing medicine at Winkler Memorial Hospital

Texas laws protect a nurse’s right, and duty, to report any health care provider when he or she believes that patients are at risk.  In a surprise inspection last September, state investigators found several violations by Dr. Arafiles and concluded that the hospital had discriminated against the nurses by firing them for “reporting in good faith.”  The hospital administrator, Stan Wiley, admitted that Dr. Arafiles had been reprimanded on several occasions for improprieties in writing prescriptions and performing surgery. Mr. Wiley said he knew when he hired Dr. Arafiles that he had a restriction on his license stemming from his supervision of a weight-loss clinic.  All along, Arafiles said he was the victim in the case, even though he had been reprimanded several times by the hospital.

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Tulsa World had an article about a nursing home employee who reported neglect and abuse at a nursing home, and was subsequently fired from her job despite her affirmative duty to report such incidents.  This is outrageous.  This employee did exactly what she was supposed to do and the nursing home fired her for it.  She is now suing Cimarron Pointe Care Center and one of its contractors for wrongful termination.  Is it any wonder why many nurses look the other way when residents are abused and neglected?

In the lawsuit, Harris said she worked as a housekeeper at the facility. She was paid by Health Care Services Group, a Tulsa company contracted by the home to provide cleaning services, and supervised by nursing home staff.   During her employment, she observed numerous instances of improper care of the home's residents.

"Mrs. Harris observed a male resident who had been left in his own waste for so many hours that he had feces caked on to his leg from his hip to below his knee, and had wet himself at least one time."   She saw the man sitting in his waste and reported it to her supervisor, the head nurse and two nurse's aides. Her supervisor sprayed deodorant in the man's room to cover the smell. The aides said they would leave him for the next shift.

"Two and a half hours later, he was still sitting in his own waste," Harris said. "He couldn't say nothing. I would always talk to him. He would just light up when I went to clean his room. It's heartbreaking when you see a resident not being taken care of."

Also, an elderly woman paralyzed from the waist down was left in her own waste, Harris said. She rolled out of the bed and into the hallway to get someone to change her soiled garments and the nurses "just laughed at her," Harris said.

"On another occasion, Ms. Harris brought the needs of another female resident to the attention of the nursing staff. The resident's needs were ignored, prompting the resident to write a letter to her family saying goodbye, in anticipation of death from neglect," the petition states.

Another female resident, who was unable to sit up alone, was left on a bench in the shower. She fell and hurt herself, the petition said.

Harris reported each instance of neglect or abuse to the facility's staff.  The home's administrator and a supervisor from Health Care Services Group of Tulsa, the contractor that paid Harris, fired her.   Of course, Cimarron Pointe Care Center denies any improper care of its residents. It also states that Harris was employed by Health Care Services Group, so the nursing home isn't responsible for her termination.   However, Ms. Harris was told that the only basis for her termination was her reporting of the abuse.  Ms. Harris had not done anything else to merit termination, and no other basis for termination were discussed or even suggested."

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Investors.com had a flattering story about the profitable Ensign Group who owns and operates dozens of nursing homes throughout the country.  I guess if you were looking at it from the point of view of profits and business models instead of quality of care, the flattery may be deserving.

The article mentions that despite the bad economic times for most workers and consumers, Ensign Group has money to spare in credit-challenged times and are taking advantage of the market.  Ensign picked up two nursing homes in California and Texas to ring in the new year.

Chief Executive Christopher Christensen says the holding company is actively seeking more long-term care properties in the West. Last week, the company acquired four in Colorado. Since its founding a decade ago, Ensign has acquired its way to 67 facilities in seven Western states: California, Arizona, Texas, Washington, Utah, Idaho and now Colorado.

At the end of the third quarter, Ensign had $56.4 million in cash, including $35.6 million generated since the first of the year. Other funds came from the remaining proceeds from its November 2007 initial public offering, some of which had already been used for other asset buys and upgrades.

"Adding such facilities obviously has a negative impact on our short-term overall operating metrics," he said, "but also represents tremendous upside opportunity as we turn them around."

Though Ensign has yet to report fourth-quarter and full-year earnings, analysts polled by Thomson Reuters estimate that profit grew 13% in 2008 to $1.32 a share. For 2009, earnings are seen growing 22%.

Ensign's balance sheet is one of the strongest in the industry, with a debt-to-capital ratio of 29%.  From a demographic perspective, the industry itself is well-positioned for growth. 

Seniors 85 and older are skilled nursing homes' prime demographic. That population will grow 80% to 9.6 million by 2030. That translates to a compounded annual growth rate of 2.4%.

Nursing home spending is forecast to rise 5.1% a year to $210.9 billion by 2016, from $105.7 billion in 2002, according to the Centers for Medicare and Medicaid Services.

Meanwhile, nursing home beds have been declining, from 1.8 million in 2000 to 1.5 million in 2007.

The oldest Americans aren't the only users. Nursing homes are also benefiting from a growing number of younger, short-term, post-acute-care patients, such as those recovering from joint replacements and other surgeries. A lot of them are the still-active baby boomers.

Medicare and managed care firms are increasingly steering these patients to skilled nursing units rather than pricier rehab centers.

They reimburse Ensign and other nursing operators at higher rates than Medicaid, which pays for the bulk of nursing homes' mainstay elderly residents. "On a per-patient basis, Medicaid is least preferred because reimbursements are at the lowest rate per day." Medicaid payments accounted for 42% of Ensign's third-quarter revenue, which rose 12% from the earlier year to a record $116.3 million. Medicare made up 32%, while managed care comprised almost 14% and private insurers 12%.

Government reimbursements, though, remain a key risk because of cost-cutting pressures. A Medicare rate cut to skilled nursing homes was reversed in August when the Centers for Medicare and Medicaid Services approved a 3.4% increase to account for inflation.

State Medicaid budgets are also under pressure. "Forty-four states are projecting budget shortfalls in the next fiscal year (starting in July). I'm personally modeling flat rates for both Medicaid and Medicare, which most people view as a worst-case scenario."

Ensign also remains under the cloud of a whistle-blower investigation the Justice Department began in 2006, said to be related to Medicare claims submitted for rehab services. Search warrants issued in mid-December focused on six nursing homes in Southern California.

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Indiana Court awarded damages to nursing home whistleblower.  A whistleblower who claimed she was fired in retaliation for reporting an employee who was sexually abusing a patient at Heritage Manor Nursing Home in Colfax recieved $17,000.

Earlier the state fined Heritage for failing to report the suspected abuse to the state public health department.  Judge Charles Reynard awarded $10,0000 in pain and suffering to whistleblower Michele Bolster. He pointed out the widow had nine children, including six adopted with special needs, and that Bolster's firing left her with the uncertainty of having medical insurance. Judge Reynard called it, "particularly excruciating."

Heritage Enterprises issued a statement calling Bolster a disgruntled employee who has used numerous avenues to accuse the company of wrongdoing but says her allegations have been proven false.

See full article here.

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