A MISCARRIAGE OF JUSTICE THAT HAD A (SORT OF) HAPPY ENDING

Back in September and then again last week, I wrote briefly (for me) about an incident that I considered to be a true miscarriage of justice, namely the prosecution of two nurses for having reported the dubious and substandard medical practices of a physician on the staff of Winkler County Hospital in Kermit, Texas. The physician’s name is Dr. Rolando Arafiles, and he happened to be a friend of the Winkler County Sheriff, Robert Roberts, who also happened to have been a patient of Dr. Arafiles and very grateful to him for having saved his life. The nurses, Anne Mitchell and Vickilyn Galle, were longtime employees of Winkler County Hospital, a fifteen bed hospital in rural West Texas. Although some of you may have seen extensive blogging about this before, I thought it very important to discuss some of the issues involved on this blog. Moreover, there is an aspect to this case that the mainstream media reporting on it has missed almost completely, as you will see. Finally, this case showed me something very ugly about my profession, not just because a doctor tried to destroy the lives of two good nurses through his connections to the good ol’ boy network in Winkler County

Let’s recap what happened, a story that reached its climax last Thursday. In 2008, Dr. Arafiles joined the staff of Winkler County Hospital (WCH). It did not take too long for it to become apparent that there were serious problems with this particular doctor. Mitchell and Galle, who worked in quality assurance were dismayed to learn that Dr. Arafiles would abuse his position to try to sell various herbal remedies to patients in the WCH emergency room and the county health clinic and to take supplies from the hospital to perform procedures at a patient’s home rather than in the hospital. No, it wasn’t the fact that Dr. Arafiles recommended supplements and various other “alt-med” remedies, it’s that he recommended supplements and various other “alt-med” remedies that he sold from his own business–a definite no-no both ethically and, in many states, legally. Mitchell reported her concerns to the administration of WCH, which did pretty much absolutely nothing. Consequently, on April 7, 2009, Mitchell and Galle anonymously reported their concerns to the Texas Medical Board (TMB). In June, WCH fired the two nurses without explanation.

That’s bad enough, but happened next is about as appalling as it gets. When Dr. Arafiles received a letter from the TMB informing him that he was being investigated, he went to his good buddy and patient Sheriff Roberts, who suddenly transformed from a small town sheriff to Jack Bauer on crack. Showing an initiative that one would think would normally be reserved for thieves, rapists, and murderers, Sheriff Roberts set himself to discovering the identities of the anonymous complainants against Dr. Arafiles with a vengeance. He interviewed each and every patient listed in the anonymous complaint, asked WCH administration to tell him which of its personnel would have had access to these patient records, and obtained a copy of the anonymous complaint. The description of the nurses as “females over 50″ allowed him to narrow down the possibilities to Mitchell and Galle. Sheriff Roberts then obtained a search warrant for Mitchell’s computer at WCH and found a copy of the letter of complaint on it. As a result, Sheriff Roberts charged Mitchell and Galle with the “misuse of official information,” a third degree felony that carries a potential penalty of 2-10 years in prison.

Yes, prison.

It also turns out that the sheriff had at some time in the past been in business with Dr. Arafiles selling a nutritional supplement called Zrii, even going so far as to hold meetings at the local Pizza Hut to recruit new sellers in what sounds very much like a multilevel marketing scam. Apparently unperturbed by his massive conflict of interest, the Sheriff apparently convinced Winkler County Attorney Scott Tidwell to forget Article 2.01 of the Texas Code of Criminal Procedure that is quoted so prominently under his name that “It shall be the primary duty of all prosecuting attorneys…not to convict, but to see that justice is done.” Although Galle was dropped from the case for unclear reasons, Tidwell pursued the case against Mitchell all the way to trial last week. It was a trial that had to be moved to neighboring county because the case had so polarized Winkler County. Fortunately, on Thursday, after less than an hour of deliberation the jury found Mitchell not guilty. It was a Pyrrhic victory. Yes, Anne Mitchell was not convicted and wouldn’t be going to prison for as long as 10 years. Yes, the jury had resoundingly slapped down Tidwell and Roberts, heaping humiliation on them. Yes, even the Winkler County judge (not the trial judge–remember, the trial had been moved to a different county) Bonnie Leck had testified in favor of Mitchell and that she had discussed her concerns about Dr. Arafiles with her. All of that is true, but Mitchell and Galle have been out of work since June and racked up huge legal bills, and their futures are anything but clear. Even though legally Mitchell and Galle are out of the woods, their futures are anything but clear. In the meantime, they have filed a civil suit that, if there is any justice left in this country, will result in Dr. Arafiles, Sheriff Roberts, County Attorney Tidwell, and the administration of WCH paying dearly for their misdeeds.

THE UNTOLD STORY

The story as relayed above and in the news was horrifying enough, but it’s worse than what was reported. The reason is that Dr. Arafiles is a lot worse than he came off in most news reports. In the news reports, Dr. Arafiles is mostly described as selling supplements, which doesn’t sound particularly bad. Even though evidence for the claims made for most supplements is lacking, so ingrained are supplements in our culture, in no small part thanks to the DSHEA of 1994, that many doctors do recommend them. Although I might frown on such recommendations as not being science-based, I couldn’t consider them so far outside the norm that on that basis alone I’d condemn Dr. Arafiles for anything other than being highly unethical in selling them to patients after seeing them in the emergency room or county health clinic. However, there was much more to the story than this. It turns out that Dr. Arafiles was much further down the rabbithole of woo than anyone reports. I learned of this when I was directed to a series of videos that Dr. Arafiles did with a man named Marc Neumann, in which both were guests on a television show that aired on God’s Learning Channel in October on Morgellons disease. I am listing them below, but don’t bother to try to watch them. Mr. Neumann made the videos private when they came to light, thanks to some bloggers. The reason I list them is in case Mr. Neumann decides to reactivate them. If he ever does, you’ll be able to see Dr. Arafiles himself in parts one, two, three, four, five.

I’m really sorry that you can’t view the content of the videos. It’s painful to watch, and Dr. Arafiles buys into a whole lot of woo about Morgellons disease. I also didn’t know who Marc Neumann was but a little Googling quickly located his Morgellons Research Organization. Unfortunately, you can’t access the English language portion of the website because Mr. Neumann has removed it, again apparently in the wake of the attention he got from certain bloggers, but the German language section is still there. So is one page that I can find. If you peruse it, you’ll notice that Neumann blames Morgellons on genetically modified organisms and a whole lot of woo.

Although I haven’t, Steve Novella, Wally Sampson, and Peter Lipson have all discussed Morgellons disease before on this blog. Suffice it to say that it is a condition that probably doesn’t exist as a distinct, biologic entity. By saying that I don’t mean that patients who are convinced they have Morgellons aren’t suffering and don’t have something wrong with them, but rather that whatever it is is not explained by the wastebasket of woo that “defines” Morgellons:

Morgellons is a multi-symptom disease that is just now starting to be researched and understood. It has a number primary symptoms:

Physical

• Sponanteously Erupting Skin lesions
• Sensation of crawling, biting on and under the skin
• Appearance of blue, black or red fibers and granules beneath and/or extruding from the skin
• Fatigue

Mental

• Short-term memory loss
• Attention Deficit, Bipolar or Obsessive-Compulsive disorders
• Impaired thought processing (brain fog)
• Depression and feelings of isolation

It is frequently misdiagnosed as Delusional Parasitosis or an Obsessive Picking Disorder.

There’s a good reason for that, namely because Morgellons actually very much resembles delusional parasitosis. Indeed, that is very likely what many, if not most, cases of Morgellons are in reality–a form of delusional parasitosis. For example, one aspect that is always claimed are “fibers” or “granules.” However, no advocate of Morgellons has ever been able to produce these fibers and show that they are anything other than contaminants from clothing or fibers from the environment or that these “spontaneously erupting skin lesions” are anything more than the consequence of scratching or picking at the skin due to sensations of crawling, itching, or biting on or under the skin.

Peter pointed this out, but if you really want to see the weakness of the evidence for the existence of these fibers as anything other than clothing fibres, check out the “research” section of pretty much any major Morgellons website. How hard would it be to recruit a bunch of people who think they have Morgellons, take fiber samples and possibly skin biopsies, and then subject the fiber samples to real chemical analysis and have real pathologists look at the skin biopsies systematically. That’s probably because pretty much every Morgellons “fiber” that I’ve ever seen presented as evidence of the disease looks more like oils and dirt from impacted pores, fibers from clothing, or clumps of dead skin cells that we all flake off. It doesn’t help that all the “evidence” on various websites has not been subjected to anything resembling peer review or independent replication. Indeed, every Morgellons website I’ve seen save one (Morgellons Watch, which concludes that the fibers are environmental and unrelated to any illness; that Morgellons is not a distinct disease; and that eople who think they have “Morgellons” probably have a mixed variety of physical and/or mental illnesses) demonstrate serious crank qualities. Indeed, Neumann’s site, the one being hawked by Dr. Arafiles, goes beyond even this and postulates that that the organisms causing Morgellons are some sort of genetically modified organism, a “bacterial-fungal GMO used as a bioinsectizide,” as he puts it. Some Morgellons even blame that woo of woo, chemtrails.

Does this mean Morgellons doesn’t exist? Possibly. Or it might exist, although, to be honest I very much doubt it. Still, there are lots of patients with symptoms to which they have placed the label “Morgellons” who are genuinely suffering. Unfortunately, attaching a label to these patients that is not rooted in science and evidence does them a disservice, and the very best that can be said is that evidence is sore lacking that there is even such a disease as Morgellons. That’s why it’s really hard to say whether the disease exists, because the “evidence” for Morgellons disease can only be found on websites devoted to promoting the idea that Morgellons exists as a distinct clinical syndrome. If you do a PubMed search, pretty much all you’ll find are articles on delusional parasitosis and commentaries asking whether Morgellons actually exists as a distinct disease entity. About the best evidence suggesting that Morgellons may be a distinct disease is a single case series consisting of 25 patients carrying a diagnosis of Morgellons from whatever source. Let’s just say I’m not convinced. It’s a small case series; there are no statistics to speak of; the autoimmune measures reported are wildly inconsistent; and there are no consistent abnormalities that stand out as pathognemonic of a distinct disease.

Whether Morgellons exists as a disease or is in fact a form of delusional parasitosis, however, it is a magnet for quackery and pseudoscience (which is why attaching a fake label to a probably nonexistent disease does patients who can be labeled with that pseudodisease does them no service at all), and Dr. Arafiles’ video is chock full of both. The reason I mention the videos is that they were his undoing in terms of showing just how deep into pseudoscience Arafiles had fallen. In part 5 Dr. Arafiles mentions a website, Health2Fit. Although nowhere on the website is Dr. Arafiles’ name mentioned, it’s clear that it’s Dr. Arafiles’ website because its contact information lists Kermit, TX as where it is located and, more importantly, Dr. Arafiles’ LinkedIn profile lists him as the owner of Health2Fit. (I’ve saved a screenshot in case Dr. Arafiles decides to try to make the evidence disappear down the memory hole the same way Marc Neuman has tried to make the English language portion of his website disappear.)

Dr. Arafiles, if he is smart, has plenty of reason to try to get rid of the evidence, because on the website he reveals himself not only to be anti-vaccine but heavily into pseudoscience. One example is that Dr. Arafiles sells colloidal silver (yes, that colloidal silver!) to treat H1N1 and seasonal flu. Worse, the website claims that colloidal silver is FDA-approved for treating the flu. As Peter points out, that is a lie, pure and simple. Moreover, on the same page, there are links to antivaccine websites like the National Vaccine Information Center, a lawyer specializing in vaccine exemptions, and to über-quack Gary Null testifying in New York. That’s right. Gary Null. That Gary Null, who is an HIV/AIDS denialist, an anti-vaccine loon (I’m being generous here), and a supporter of cancer quackery. To top it all off, Dr. Arafiles has a presentation on the swine flu with his name on the first slide that includes slides like this:

It looks as though Dr. Arafiles buys into the dreaded “toxin gambit” and the “aborted fetal tissue in the vaccines!” gambit. He even has a PDF of an article by the “Health Ranger” himself, Mike Adams entitled Ten Swine Flu Lies, as well as a link to an fear mongering article about mercury in the H1N1 vaccine. But it’s even worse than that. Dr. Arafiles appears to be selling colloidal silver for Morgellons disease as well. (Remember how I said that Morgellons disease is a magnet for quackery?) He’s also selling a very expensive water alkalinizer for $1495 on his website. Meanwhile, Dr. Arafiles actually testified in this case that diabetics heal as well as anyone else, which actually caused those attending the trial to laugh.

If anyone has any further doubt as to just how far outside the realm of science-based medicine Dr. Arafiles has wandered. I’ll mention two more tidbits. As Mike Dunford shows, in 2002 Dr. Arafiles appeared on a list of U.S. & International Physicians Who Offer IV Hydrogen Peroxide & Bioluminescence Therapy. But it’s even worse than that. In December 2009, there appeared a message from him on the Yahoo! newsgroup No Forced Vaccination to Sherri Nakken, an unabashedly anti-vaccine activist who bills herself as a “Hahnemannian Homeopath” and offers an online homeopathy course asking “When do I get my materials for the homeopathy class?” It would appear that not only is Dr. Arafiles anti-vaccine, but he is currently studying homeopathy as well.

The bottom line is that Dr. Arafiles is more than just a dubious doctor who has a penchant for supplements and a soft spot for a little bit of woo. He’s a doctor who has drunk the Kool Aid, someone who has been reported to the TMB on more than one occasion. Worse, Dr. Arafiles is in a position of power in an underserved rural area in far West Texas, and used that power, which derives from his privileged status as a doctor in the small town of Kermit and his connections with a sheriff who thinks nothing of ignoring his conflicts of interest, ignoring warnings from the TMB that what the nurses he pursued did was not wrong and was in fact state business, and abusing his power to punish two nurses for daring to try to do something to protect the citizens of Winkler County from him. Whether the TMB will do anything about it remains to be seen, but I’m not very optimistic.

BAD DOCTORS, QUACKS, AND THE PROBLEM OF REGULATION

It is hard to become a physician. It takes brains, patience, dedication, and, even in the age of 80 hour work weeks, an almost superhuman ability to take abuse. The flip side of this is that being a physician is a highly privileged position. After all, we hold human lives in our hands. People trust us enough to tell us things about themselves that they wouldn’t tell anyone else, possibly not even their spouses, in the hope that we can use that information to diagnose and treat them. Society has given me, as a surgeon, the supreme privilege of being able to take a knife to human flesh in order to try to cure women of breast cancer, and, back when I did more than just breast cancer surgery I used to joke that surgeons were allowed to forcibly rearrange people’s anatomy for therapeutic intent. We see parts of people that no one else sees, and we do things to people that no one else is allowed to do legally. It is a great power and a great trust.

Doctors like Dr. Arafiles abuse that power and trust.

Unfortunately, the sense of privilege has consequences. Once a person becomes a doctor, it shouldn’t be viewed by society as a right, but in effect it is. It is, in fact, very difficult in most states to strip a bad doctor of his medical license, and, even when sanctions are issued, it seems that every effort is made to get that physician back to practicing as fast as possible. You may recall a couple of years ago how I lamented the seeming powerlessness of the North Carolina Board of Medical Examiners in the face of Dr. Rashid Buttar’s autism and cancer quackery. Kim Atwood has also described how state medical boards often fail when confronted with physicians practicing medicine far outside the bound of what is science-based, tending to be lenient at first; sometimes even documented evidence of patient harm does not sway them. One reason is that state medical boards are often overwhelmed. It’s hard enough for them to keep up with disciplining physicians with substance abuse problems or taking sexual liberties with patients, much less adjudicating whether as treatment is science based and what is the standard of care.

However, I fear that it may be more than that. There is a strain of belief and attitude among many physicians that we really are a privileged class and that complaints against us are unwarranted. One need look no further than this post by the American Association of Physicians and Surgeons for this attitude. In a stunning post entitled Is there accountability for malice?, the AAPS takes Dr. Arafiles side against the nurses:

It has been open season for false allegations against physicians for too long. Each year too many physicians are distracted or even destroyed by malicious claims about them, whether in malpractice cases, sham peer review by hospitals or health plans, or witch-hunts by medical boards.

Is nurse Anne Mitchell guilty of acting in bad faith? The jury will decide.

Note the juxtaposition of complaints against false allegations against physicians with the disingenuous statement that “the jury will decide.” While that was literally true (the jury would and did decide–and it decided in under an hour that the allegations against Anne Mitchell were completely unjustified), it’s very clear where the AAPS stands on this issue, and it’s not with the whistleblowers or in favor of physician accountability:

The blogosphere is filled with rants against the doctor, Rolando G. Arafiles, Jr., M.D.; the prosecutor; and West Texas itself. The doctor has dark skin, a foreign accent, and some unconventional ideas. But his ideas and his practice are not on trial. The question before the court is whether the nurse, not the doctor, acted wrongfully.

This is an example of some spectacularly Orwellian misdirection. First off, the attacks in the blogosphere were against more than just Dr. Arafiles. They were against the Winkler County Sheriff who went to great lengths to hunt down the two whistle blowing nurses. They were against a clueless and vindictive prosecutor who decided to prosecute them. They were about payback against the nurse. In fact, the uproar was about about exactly the opposite of what AAPS thinks it’s about. It’s also spectacularly hypocritical of the AAPS to cry racism over this issue because Dr. Arafiles is Filipino when it has a history of some truly despicable and racist anti-immigrant rhetoric. Indeed, as I documented a year and a half ago, the AAPS is an organization that in essence believes that there should be no constraints on physicians “exercising their judgment.” They are an extreme example, but I’ve encountered such thoughts before. For example, on my Facebook page, a physician named Richard Willner weighed in:

This will have no effect on whistleblowing of RNs against MDs. I see them almost every day.

Followed by:

I also see outrageous RN complaints against MDs. If I was the RN Licensing Board, I’d discipline them for incompetence.

When I provided links to show what a miscarriage of justice this case is and to point out the information about Dr. Arafiles that I described in the first section of this post, Dr. Willner replied:

This Tx case is incredible. I have known all about it for a while. This is an aberation that can only occur in a local southern town.

My other opinion that many RNs write formal complaints on MDs for simply doing their jobs, writing correct orders that the RN are “not comfortable with”, that is a fact. If you want an unique view point just call me at 504-621-XXXX after rounds. This is a real problem for many MDs and it is not taught in Residencies.

To which I replied:

Nurses are supposed to question orders they aren’t comfortable with. They aren’t mindless automatons who are supposed to follow orders without question. They are professionals.

Now, I’m not going to deny that sham peer review based on anonymous complaints isn’t a problem in some hospitals. Physicians, however, appear to have an exaggerated view of just how common it is. As often as sham peer review is alleged by doctors, the AMA (not exactly a source that would be opposed to physicians rights) investigated and concluded:

Abuse of peer review is easy to allege but, for the reasons discussed above, can be difficult to prove. Considering the nature of the proceedings, it is to be expected that such charges will be raised by physicians who disagree with the results. In fairness, though, those who raise such claims should have the burden of proving them. Since the passage of HCQIA in 1986, the AMA is aware of only exceptional, isolated instances of peer review determinations that have resulted from improper motivations, rather than a good faith desire to improve patient care.

This may partly be explained by the difficulties in proving such a case and the legal disincentives against bringing this type of lawsuit. More likely, though, is that peer review abuse is a rarity. The legal obstacles make a claim of inappropriate peer review difficult to prove; they do not make it impossible. If abusive peer review were indeed “epidemic,” there would probably be a more substantial track record of definitive and proven malfeasance. The absence of such a record suggests that the claims of widespread or frequent “sham peer review” are speculative.

No doubt I’ll get an angry complaint or two, either in the comments or by e-mail, for taking this position, but you can be pretty sure that the AMA would be unlikely to cover up evidence of sham peer review, given its mission to promote the interests of physicians as a profession. Yet such is the widespread perception that peer review by hospitals resulting in false accusations and unjustified sanctions against doctors that doctors have a tendency to side with other doctors, particularly when it is nurses making the accusation. So powerful is that perception that it’s not just cranks like the AAPS who immediately doubted the Winkler County nurses and lept to defend Dr. Arafiles. And it doesn’t just stop there. Hospitals, state medical boards, virtually the entire establishment is tilted in favor of physicians when it comes to matters of physician misconduct. Our physician culture is to tend to close ranks when one of the tribe is attacked, and state medical boards are loathe to do anything about any but the most egregious offenses. That tendency has led some physicians to wrongly conflate the Winkler Nurses case with sham peer review and conclude that the nurses deserved to be punished for making what they assumed in a knee-jerk fashion to be a bogus complaint against the poor sainted Dr. Arafiles.

And that attitude is a threat to science-based medicine, arguably as serious a threat as the infiltration of quackery into bastions of science-based medicine and the corruption of medicine by “integration” with that quackery.

Dr. Arafiles’ case is about more than just Dr. Arafiles. It revealed serious problems with how physician misconduct is reported and how it is dealt with by hospitals and the governmental entities charged with protecting the public from bad doctors and even outright quacks. Perhaps most disturbing is the utter silence from major medical organizations other than the Texas Nurses Association, which rallied to set up a legal defense fund for Galle and Mitchell, and the American Nurses Association. To our disgrace as a profession, not a single major national physicians organization that I’m aware of stood by the nurses and their duty to report physician malfeasance or, at the very least, against the prosecution of fellow professionals who were being punished through the loss of their jobs and the potential loss of their freedom. The only physicians organization that spoke up was a crank organization that took exactly the wrong position on this matter. Instead of siding with patients and the need for physicians to be accountable, the AAPS supported punishing the nurses, likening them to nurses making false charges against physicians. All of this occurred in the face of the TMB having sent a very harsh letter telling County Attorney Tidwell that his prosecution was wrong, not based in law, and that it had “potentially created a significant chilling effect on the cooperation of any other hospital personnel who might have been able to provide additional information needed by the Board” to carry out its investigation of Dr. Arafiles.

Of course, that was almost certainly exactly the intent of the sheriff’s vendetta against these nurses, to keep his good budy Dr. Arafiles’ medical license safe and secure against the actions of the TMB and to intimidate other potential witnesses into silence. As Dr. Kate Scannell put it, the medical establishment send a clear, unmistakable message to nurses and non-physician health care professionals and workers: Don’t rock the boat. Doctors are supreme. Don’t question them. If you do, you risk everything, your job, your money, even your freedom.

This is hardly a situation that promotes the practice of science-based medicine or even something more basic, patient safety.