“Frankly, their demeanor during their testimony indicated that they were content to use their self imposed lack of knowledge as an excuse for inaction”
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.”
Given the inaction by Pennsylvania Department of State attorneys on seven of the eight recorded complaints against Gosnell, the Grand Jury questions how aggressively the prosecutors are protecting the public from bad doctors. The complaints relating to Gosnell’s abortion practice were serious, the harm he inflicted on patients was substantial, and his routine included the wanton killing of babies outside the womb. Yet even a 22-year-old woman’s death did not warrant an investigation, according to the Board of Medicine. It is curious, therefore, that the only complaint against Gosnell that did lead to any kind of disciplinary action by the Board involved a non-certified physician’s assistant who treated a child for pink eye in 1990. As it happens, the child’s grandmother, the complainant, worked for the Bureau of Professional and Occupational Affairs.
The next time state officials acted was 20 years later, when Gosnell was in the news. After law enforcement asked the Department of State to participate in the February 18, 2010, raid on Gosnell’s clinic, Gosnell and his facility received extensive newspaper and television news coverage. With the spotlight on them, state officials finally conducted a thorough investigation. Prosecuting Attorney Ruiz went back through the complaints that had come in over the years. He had Sherilyn Gillespie interview Dana Haynes, Marcella Choung, and Marie Smith, a patient who had sued Gosnell, but whose suit was never reported to the department. Gillespie conducted an impressive investigation and produced abundant evidence of Gosnell’s criminal activities and his unfitness to practice medicine.
We are concerned, however, about the patients whose doctors do not end up in the news – doctors who may be unethical, reckless, or unprofessional every day with impunity. We want to know that the Department of State is protecting the public from dangerous doctors even if they do not happen to treat someone with a connection to the department, and even if they do not end up in the news. We do not have that confidence after this investigation.
The Departments of Health and State do not work together to protect the public.
One might think that two state agencies regulating heath care providers would offer twice as much – or at least more – protection of the public’s health and safety than one. But from what we have observed in this investigation, that does not seem to be the case. We found that, rather than two departments taking responsibility, the Department of State and the Department of Health evaded their duties by asserting that the other department has clearer jurisdiction over the matter, and neither took action to protect the public.
We found that the departments do not share information or coordinate to make sure that a problem is addressed. Instead, they seem to use the other’s existence in order to justify doing nothing. We saw this in the way the Department of State handled Marcella Choung’s complaint. While it contained significant allegations that the Department of State could and should have prosecuted – for example, Gosnell’s practice of allowing unlicensed workers to administer anesthesia, and his routine failure to counsel or obtain consent from abortion patients – the prosecuting attorney instead recommended referring the case to the Department of Health, which apparently he did not actually do.
Meanwhile, when the Department of Health was contacted by plaintiffs’ attorneys complaining about Gosnell or seeking records, officials in that department did not heed or act on the information conveyed. Instead, they told the attorneys that their records were privileged and referred them on to the Department of State. On hearing of Semika Shaw’s death, for example, Janice Staloski, the director of home health who had responsibility for overseeing abortion clinics, did not order an investigation or even an inspection of the clinic. She failed to perform even the simple task of checking to see if Gosnell had reported her death as the Abortion Control Act mandated. She did refer Ms. Shaw’s attorney to the Department of State. Similarly, her predecessor, Robert Bastian, ignored the substance of a complaint by the attorney for the 19-year-old who had to have a radical hysterectomy after Gosnell perforated her uterus. After consulting with Senior Counsel Brody, Bastian cited several statutes and regulations to exp
lain why the department could not provide records. And he referred the attorney to the Department of State. More to the point, Bastian, like Staloski, did not order an investigation or inspection of the clinic that it was his duty to monitor. Even when Ms. Shaw’s heirs were awarded $900,000, and when the 19-year-old recovered $500,000, no one at DOH seemed to think it was worth taking a look at the clinic.
Semika Shaw’s case is just one example of how the lack of communication between the departments hampers enforcement. In October 2002, Gosnell’s insurance carrier reported to the Department of State that it had paid its $400,000 share of the $900,000 settlement for her death. Gosnell, however, did not report Ms. Shaw’s death to DOH even though he was required to do so under the Abortion Control Act. 18 Pa. C.S.§3214(g). Even after learning of Ms. Shaw’s death from her estate’s attorney, Staloski ignored the information. The Department of State prosecutors, who are charged with enforcing the reporting requirement of the Abortion Control Act (18 Pa. C.S. §3214(i) and §3219), could not know that Gosnell failed to report Ms. Shaw’s death to DOH unless DOH informed them. On the other hand, DOH might not know that Ms. Shaw died. That information was, however, known to the Department of State prosecutors because the insurance company told them.
The obvious solution to this problem is to have procedures whereby the Department of State prosecutor, before closing the file on Ms. Shaw’s death, would contact DOH to make sure Gosnell had complied with reporting laws. Conversely, Staloski, on learning of Ms. Shaw’s lawsuit from the plaintiff’s attorneys, should have checked with the Department of State to make sure that Gosnell had reported the suit as mandated by the MCARE law. As it happened, none of the state officials who testified before the Grand Jury shared or requested information that was necessary to carry out their duties. Frankly, their demeanor during their testimony indicated that they were content to use their self imposed lack of knowledge as an excuse for inaction. Proper supervision and accountability for performance, in addition to new procedures, clearly are required.
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