Nurses blowing the whistle on medical malpractice: an interview with journalist Saul Elbein

Over the course of more than two years in a rural West Texas town, a new doctor routinely and systematically misdiagnosed patients, performed improper surgeries, and attempted to pass off homeopathic cures as legitimate medicine, according to an expose that ran last month in the Texas Observer. When two nurses spoke out against the doctor’s ostensibly negligent behavior and apparent lack of basic medical knowledge, they lost their jobs and were shunned in their community. One of the nurses was even criminally prosecuted for blowing the whistle (although unsurprisingly, she was acquitted of all charges). Today, we caught up with the author of the Observer piece, investigative journalist Saul Elbein, and asked him a few questions.

Civil Justice Law Blog: There was some national coverage in 2010, in the Times and elsewhere, of the prosecution of one of these whistle-blowing nurses, but there had been a bit of radio silence on this story for a while until your piece came out. How did you pick up this story, and how long did you spend researching it?

Saul Elbein: I first heard about the story when the Times published it almost a year ago, and we were talking at the Observer about maybe doing something with it then, but it wasn’t clear what more could be done on the story at that point…[Almost a year later, however,] what really interested me about it was that it really didn’t seem like anything had changed. I was really surprised to find that.

The story finished, I thought, with one of the nurses being acquitted and the other not being tried. And it sounded like it was this huge happy ending, this big victory for accountability in medicine, but it wasn’t, because the nurses’ lives were basically ruined, and the people who ruined their lives all still had jobs. When I pitched the story to the Texas Observer, that was still the case.

There was the Texas Medical Board investigation against Dr. Arafiles, but they didn’t take his license away. It really looked like there had been this huge appalling thing that had happened, and there weren’t going to be any consequences. Now as it turned out, that wasn’t true. Right around the time that I went out to Winkler County to report on the story, the sheriff and the doctor and everyone who was really involved in this all got indicted. They’re all going to go to trial in June. But what drew me to this story was the idea that something like this could happen, and that people could just totally get away with it.

Civil Justice Law Blog: As you researched and wrote this story, what, if anything, were you surprised to learn about the health care system in Texas?

Saul Elbein: Well, I didn’t know much about the health care system to start out with, which is a little embarrassing, because my mom’s a nurse. But I think what surprised me most was how nurses really do see their jobs as being patients’ advocates, far more so than doctors do. Nurses can lose their nursing license for failing to preserve a safe environment for their patients, in contrast to how it is for doctors. It seems to be very difficult for a doctor who is hurting people and practicing really sketchy medicine to lose his license – or even to be reined in.

Arafiles had been doing this since he got to Winkler County in the middle of 2008. He was switching people’s thyroid medicine, he was putting people on non-FDA approved alternative drugs, and then he was performing all those strange surgeries. It took forever for anybody to do anything about it – it took almost two and a half years.

And the crazy thing about it was – and this didn’t make it into the story, because there wasn’t space – this was not the first time that he had been censured for something like this. He was practicing in Victoria, in South Texas, a couple of years before that and had a complaint filed against him there for what seemed to have been more or less the same thing, and the Texas Medical Board put him on probation, and sort of allowed him to go about his business.

What was interesting about that, and what kind of makes you wonder about our oversight [in Texas] versus other states’ oversight, is that the New York Medical Board – he was originally licensed in New York – got a copy of the complaint from the Texas Medical Board, and they took his license.

Civil Justice Law Blog: So to delve into this question of the regulatory environment of health care in Texas, did you learn anything about how the tort system in Texas and the question of liability played into this story, how it maybe affected what happened or didn’t happen with this doctor?

Saul Elbein: I didn’t really, so I can’t speak to that. I do know that it was a big part of the prosecution’s case for why the nurses were ‘harassing’ Arafiles: Because it was going to make his malpractice insurance go up and he was going to have to spend all of this money trying to defend himself. But that seems to have been largely bullshit.

Civil Justice Law Blog: So that’s the prosecution of the whistle-blowing nurses.

Saul Elbein: Yeah. What the prosecution argued – and this is completely nonsensical – is that the nurses had harassed Doctor Arafiles maliciously by filing a complaint against him with the Texas Medical Board, and that this was going to be a huge financial burden on him, etc.

Civil Justice Law Blog: One of the strangest and saddest parts of this story to me – and you can include the prosecution of the nurse within this – is the way in which members of this community rallied against the nurses and defended the doctor. How do you explain the number of people in and around Kermit who were actually sympathetic to this doctor?

Saul Elbein: So I can’t say what everyone in Kermit feels. I did talk to people in Kermit who think that what happened is appalling. And a lot of people in Kermit don’t really care that much, they just want people to drop this, for it to be over – they just want to get back to being a normal small town.

But the thing about doctors is that most of us trust them. If the doctor is charismatic and smiley, most of us trust them a lot more. That’s more the case, I think, if you’re not as well-educated, but I think that’s also true for pretty much everyone. It’s pretty remarkable what people will put up with from their doctors.

You can go in to see a doctor and he can royally mess up. You go in and say “Hey man, you royally messed up,” and he’ll say, “Oh, yeah, yeah, that’s true, but let’s try this now.” And I’ve had that experience a lot. I had that experience at the UT [University of Texas at Austin] Health Center, where I had this doctor who I really liked. I had a pretty obvious case of scabies, and the doctor misdiagnosed it something like four times, as increasingly outlandish possible illnesses. So finally I was like, “Do I maybe have scabies?” and he was like “Yeah, you probably do.”

This happens all the time. And that was a pretty innocuous example, but it could have happened with something more serious. I think what the story really shows is how necessary it is for someone who knows the system, who knows what’s appropriate, to monitor patient care. Because malpractice isn’t always, ‘they cut off the wrong leg’; it isn’t always something immediate and obvious.

These patients who the doctor diagnosed with hypothyroidism probably didn’t know much about hypothyroidism, or what the symptoms of it are. So if the doctor says “Hey, you need to be on this medication,” they think, “OK, I need to be on this medication.” There needed to be a medical professional to say, wait a second, this isn’t right.

You can read the Observer article here.

This conversation has been edited for clarity and length.

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