“We have learned during our investigation that Gosnell’s reckless ways were not unknown to people in the community”

Editor’s note.  Abortionist Kermit Gosnell is charged with eight counts of murder. In the section “How Did This Go On So Long?” the report demonstrates conclusively that agencies had been aware for years of all the violations the Grand Jury documents in its 261-page report but  that departmental attorneys “did nothing to investigate the mayhem at Gosnell’s clinic.”

Patients and groups that were aware of Gosnell’s reckless practices found it hard to file complaints with the state.

We have learned during our investigation that Gosnell’s reckless ways were not unknown to people in the community. Some pro-choice and women’s health groups learned from Gosnell’s patients of their frightening experiences. Patients reported that they were put totally to sleep for long periods of time, that they were treated badly, and that the facility was dirty. The community groups tried to help women file complaints. They were unsuccessful, however, in part because the complaint form used by the Department of State – the same form that one would use to complain about a barber or a car salesman – is difficult to fill out, especially if the complainant is not well educated or does not speak English. It demands considerable personal information, and it does not guarantee confidentiality for medical records.

Women who had undergone abortions were generally not willing to send all of this information to Harrisburg [the state capital]. When representatives of one of the organizations tried to file a complaint with the Board of Medicine on behalf of the women, they were allegedly told that they could not file a third-party complaint. Ruiz, the prosecuting attorney, told us that the Department of State has always accepted complaints from any source – third parties, local, state, and federal agencies, newspaper stories, basically anyone who wants to file a complaint. He further testified that the complaints can be conveyed by telephone and do not have to be made on the formal complaint form. He said that any complaint would be logged in and considered.

Our review of records subpoenaed from the Department of State, however, reveals that the only complaints recorded or acted on – even if the action was only to close the file without investigation – were those where a formal, written complaint was sent to the department. We saw no record of a complaint from any women’s health organizations. Indeed, according to the department’s records, no one over two decades ever conveyed a complaint over the phone.

A Department of State witness complained that the department does not have more law enforcement powers, but failed to use the ones that it has.

Prosecuting Attorney Ruiz repeatedly mentioned the Pennsylvania Department of State’s desire to be considered a law enforcement agency. He suggested to the Grand Jury that the department could have done a better job of investigating complaints against Gosnell if it had had the full powers of law enforcement. We are unconvinced. The Board of Medicine already has subpoena powers that could and should have been used to obtain files and documents that could have substantiated the complaints received. Yet it did not use this power. The Department of State witness suggested that the power to inspect would have been useful in investigating the complaints against Gosnell. But this does not require law enforcement powers. As Ruiz noted in his testimony, many of the other boards he works for, other than the Board of Medicine, do have the power to inspect the establishments that they license, without having law enforcement authority. We agree that the Board of Medicine should have the same inspection power possessed by other state boards, such as the board that oversees cosmetologists. In this case, however, there is no suggestion that anyone from the Department of State asked – or even wanted – to inspect Gosnell’s clinic. No evidence indicates that any state official even sought to interview Gosnell in his office.

Finally, the Board prosecutor mentioned that Pennsylvania’s Criminal History

Record Information Act prevents law enforcement from sharing investigative information with the department. He contended that this somehow hampered the department’s own investigations. Again, we did not see that in this case. Indeed, it was the Department of State that possessed the crucial information, provided by Marcella Choung in 2001, that could have been used to stop Gosnell’s illegal practice years ago – long before Karnamaya Mongar was killed. If anything, it was the confidentiality and privilege claimed by the Departments of State and Health that threatened to impede the criminal investigation. The Department of State initially claimed that its complaint files were confidential and could not be turned over to the Grand Jury.

The problem with the Departments of State and Health is not that they lacked authority to end the crime spree that Gosnell and his staff passed off as practicing medicine. The problem is that the state overseers preferred not to exercise their authority.

They chose to look the other way.

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