Tuesday October 22nd 2019

Texas Nurses Association promoting enhanced nurse protections

Over the years, the Texas Nurses Association (TNA) has successfully spearheaded efforts to protect nurses who speak out on behalf of their patients. Now, TNA and its nurse members are promoting legislative measures that will strengthen state law, and in turn, enhance nurse protections for patient advocacy activities.

One bill, Texas SB 192, significantly increases financial penalties for employers and others who retaliate against nurse advocates. It also provides nurses with immunity from criminal prosecution.

Introduced by Sen. Jane Nelson (R), the measure passed the state Senate with no opposition, according to TNA Director of Practice Cindy Zolnierek, MSN, RN. A companion measure introduced by Rep. Donna Howard (D), HB 575 is expected to have strong support in the House, as well.

TNA members and long-time nurses Anne Mitchell, RN, and Vicki Galle, RN, both testified for SB 192. Both not only lost their jobs but also faced criminal charges of misuse of official information when they reported a physician to the Texas Medical Board over patient safety concerns. The charges were eventually dropped against Galle, and a jury found Mitchell not guilty in less than an hour. Known as the “Winkler County nurses,” their plight drew national attention and tremendous support from nurses and others concerned about patient advocacy and safety.

Zolnierek also provided key testimony at the March 1 Senate Committee on Health and Human Services hearing.

“I told them [state lawmakers] that there are ‘never events’ in health care — events that are of such grave significance that they should never occur, such as amputating the wrong leg,” Zolnierek said. “And when a never event does occur in an organization that promotes a culture of safety, the organization tries to figure out why it happened and look at ways to prevent it from happening again.

“The Winkler County case — retaliation against two nurses who made a good faith report about patient safety concerns — is a never event.”

No one could have foreseen that nurses would be criminally prosecuted for advocating for their patients — which is a professional and ethical obligation, according to Zolnierek. That’s why TNA has been working to gain support for SB 192.

Zolnierek added that both the Texas Medical Association and the Texas Hospital Association supported SB 192.

“There was broad recognition that nurses need to be able to advocate for patient safety, and anything that stands in the way is not good for patients or nurses,” Zolnierek said.

She also noted some of the bill’s provisions, which include the following:

• Providing immunity from criminal liability for reporting patient safety concerns.

• Establishing good faith — rather than “without malice” — as the standard for making protected reports.

• Protecting nurses who advise other nurses about their rights. (TNA’s Nurse Advocate Certificate Program trains nurses to help their colleagues navigate patient advocacy issues, so this legislation takes these nurse advisers out of jeopardy.)

• Protecting nurses from all persons who are in a position to retaliate beyond just the employer.

• Increasing fines (up to $25,000) that licensing agencies can impose for retaliation to better deter these harmful actions.

Zolnierek added that when Mitchell and Galle were wrongfully terminated, the fine against the hospital was $650 for each action, for a total of $1,300. And when the Texas Medical Board determined that the physician engaged in witness intimidation, he was fined only $5,000.

The other related legislation that TNA is backing is HB 884, which ensures that publicly-employed nurses have the same remedies as nurses working in private settings when illegal retaliation for patient advocacy activities occurs.

Currently, publicly employed nurses may only access remedies when retaliated against by filing a lawsuit through the “Texas Whistleblower Act,” while nurses employed by private organizations can seek remedies (sue) under the stronger protections of the Texas Nursing Practice Act.”

HB 884 would amend the Nursing Practice Act and provide a limited waiver of sovereign immunity — meaning nurses can sue a publicly-owned hospital for damages, such as lost wages and benefits, if they are retaliated against for speaking out about patient safety. Damages, however, would be limited to the type and amount available under the “Texas Whistleblower Law.”

Other actions in the Winkler County case

Zolnierek said that Mitchell is now working part time in disaster preparedness, and that Galle has yet to be able to find work in their rural area.

However, the two nurses accepted a combined civil judgment of $750,000 in their suit against Winkler County, according to news reports. And that settlement, along with contributions made to the TNA Legal Defense Fund, has helped them pay their legal expenses. The two nurses credited TNA and the support of nurses from across the country for helping them get through their ordeal.

Further, the Texas Medical Board placed Rolando G. Arafiles, Jr., the physician whom the nurses anonymously reported, on probation for four years, according to the TNA website. The physician,  Winkler County sheriff, county attorney, and the administrator of Winkler County Memorial Hospital, where the nurses had worked, were indicted on criminal charges related to the their actions around the nurses’ arrests in 2009 and subsequent prosecution.

The hospital administrator recently accepted a plea deal, according to a news report.

For more details and updates on the TNA-backed legislation, go to www.texasnurses.org.

— Susan Trossman is the senior reporter for The American Nurse.

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