In turn, the nurses filed a federal lawsuit against the county, the hospital, the sheriff, and other officials, charging that their First Amendment rights were violated and that their firing and criminal charges had been retaliatory. The women won a $750,000 settlement. State prosecutors then went after the sheriff, who lost his license, was convicted of retaliation, and sentenced to 100 days in jail; and the county attorney, who was sentenced to ten years’ probation. Arafiles pleaded guilty to retaliation and misuse of official information and received a sentence of two months in jail and five years’ probation. As part of his plea agreement, he surrendered his medical license.
It is confounding that initially, the nurses were fired but the doctor was not. The medical board charged Arafiles with violations including sewing a rubber scissor tip to a patient’s thumb, using an unapproved olive oil solution on a patient with a bacterial infection, failing to diagnose a case of appendicitis, and performing a skin graft without surgical privileges. But not until Arafiles was charged with a felony did he lose his license. The Texas Medical Board allowed Arafiles to continue to practice as long as he took additional classes, paid a $5,000 fine, and agreed to be monitored by another doctor.
As a result of this case, the Texas Legislature passed a bill increasing fines against doctors who retaliate against nurses reporting unsafe care, and protecting those nurses from criminal liability. The Winkler nurses’ story doesn’t culminate in a tidy, happy ending, however. Because of the case, the Legislature passed another law prohibiting the Texas Medical Board from considering anonymous complaints against doctors. Meanwhile, the Texas nursing board still permits people to complain anonymously about nurses. In fact, an examination of policies and calls to nursing boards in every state revealed that doctors in forty-one states can report nurses to state nursing boards without having to identify themselves.
So not only did the two nurses who advocated for their patients by reporting unsafe healthcare get fired, arrested, and criminally indicted (their necessary and heroic actions damaging their careers and their incomes until they won their suit), but future nurses were dissuaded from reporting dangerous practices at all. “It is shameful that nurses don’t get the same level of protection as physicians. If nurses face the possibility of being outed and then prosecuted, they will think twice before turning in a dangerous physician,” said Alex Winslow, executive director of Texas Watch, a nonpartisan Texas citizen advocacy organization. “The lack of protection for nurses puts patients at risk.”
This unequal treatment is ridiculously unfair and glaringly unsafe. Nurses are caught in a terrible conundrum: When they report dangerous doctors, they can be fired. But when they don’t speak up, people can die.
The biggest problem with doctor bullying is that hospitals are not a run-of-the-mill workplace, where bullying might simply cause individuals’ feelings to get hurt or departmental tensions to rise, which are not trivial matters but are at least self-contained. In hospitals, what The Joint Commission calls “intimidating and disruptive behaviors” can lead to medical errors, increase healthcare costs, and harm patients. These consequences are possible because certain doctors refuse to listen to nurses or because nurses are too intimidated to ask questions promptly, if at all. Nurses have reported that they have caught themselves making mistakes, such as mislabeling specimens, because they were so upset, stressed, or distracted by a confrontation with a physician.
Approximately half of surveyed respondents told the Institute for Safe Medication Practices that doctor bullying had caused them to change the way they react when they believe a doctor has made a medication error. These nurses tend to succumb to pressure to administer the medication anyway or to suggest the doctor give the medication himself. As a result, many respondents admitted that they “had been involved in a medication error during the past year in which intimidation clearly played a role.”
A national study of 6,500 nurses and nurse managers conducted by the American Association of Critical Care Nurses reported that many nurses are too intimidated to voice their concerns when doctors make mistakes during surgery. Despite mandatory safety protocols like checklists, more than 80 percent of nurses are still worried about “dangerous shortcuts, incompetence, and disrespect” at their hospitals. Of the nurses who admitted that patient harm or “near misses” occurred because of a doctor’s safety violation, 83 percent did not report the violation.
While any staff member might badger another, researchers say that doctors bullying nurses are most likely to jeopardize patient safety. Botched communications appear to be the leading cause of avoidable surgical errors. More than two-thirds of medical professionals say that disruptive behaviors have caused medical errors or patient deaths. Separately, The Joint Commission has found that in healthcare organizations nationwide, 63 percent of cases resulting in patients’ unanticipated death or permanent disability can be traced back to a communications failure.
How long will these preventable tragedies continue? Researchers have proven these links as far back as the 1980s, when a study of Intensive Care Units revealed that “the most significant factor associated with excessive mortality was the degree of nurse-physician communication.” When nurse-doctor relations are poor, patients die unnecessarily. More recently, the Workplace Bullying Institute reported that the mother of a toddler hospitalized for burns thought her daughter was thirsty because she was frantically sucking on wet washcloths. The mother called nurses into the room twice during the night, but the nurses only repeated the doctor’s insistence that the girl was fine. The toddler died of dehydration, according to the institute, because the nurses were too intimidated by the doctor to question him.
The story is shocking, but it’s only one of countless examples of patients suffering because of healthcare providers’ failure to communicate effectively. Consider this anecdote, which nurses reported in a 2010 survey jointly conducted by the Association of periOperative Registered Nurses and the American Association of Critical Care Nurses. During the surgical safety checklist, nurses saw that a surgery was erroneously scheduled for one side of the patient while the patient-verified permit listed the other side. When the nurses tried to stop the plastic surgeon, he told them the permit was wrong. “The patient was already asleep and he proceeded to do the wrong side against what the patient had verified, which had matched the permit. We could not get any support from the supervisor or anesthesiologist. The surgeon completed the case. Nothing was ever done. We felt awful because there was no support from management to stop this doctor. . . . We felt absolutely powerless to being an advocate for the patient.” (No further information was provided.)
Alan Rosenstein, the medical director of a nonprofit hospital alliance, is one of the leading researchers of physician bullying. He has surveyed thousands of medical professionals, many of whom reported outcomes such as the following, which he disclosed in a Journal of the American College of Surgeons article:
“Failure of MD to listen to RN regarding patient’s condition. Patient had postoperative pulmonary embolism.”
“Cardiologist upset by phone calls and refused to come in. RN told it was not her job to think, just to follow orders. Rx delayed. MI [heart attack] extended.”
“Communication between OB and delivery RN was hampered because of MD behavior. Resulted in poor outcome in newborn.”