By Dave Andrusko
As NRL News Today reported on Wednesday, the defense for abortionist Kermit Gosnell has rested. Closing arguments are scheduled for Monday. Although some murder charges were dropped, Gosnell is still in the dock on four counts of first-degree murder and one of third-degree murder, among a host of lesser charges.
This particular excerpt captures perfectly how unwilling the Pennsylvania Department of State was to investigate credible charges that Gosnell was engaging in the same practices in 2001 that the Grand Jury charged him with in 2011! Their willingness to look the other way is staggering.
Before Department of State prosecutors decided not to investigate the 22-year-old patient’s death [Semika Shaw], they had been told of Gosnell’s many illegal practices.
What makes these prosecutors’ inaction even more astonishing is that they did know more than the bare facts included in the Board attorney’s evaluation of the case. On the same day in 2004 that they decided not to do anything about Semika Shaw’s death, these same two prosecutors also closed the investigation into the complaint brought to the Department of State more than two years earlier by Marcella Stanley Choung. That was the complaint that had alerted the Board of Medicine – eight years before Karnamaya Mongar died – to almost all of the same violations revealed by this Grand Jury’s investigation.
In December 2001, Marcella Stanley Choung had filed a detailed, written complaint with the Pennsylvania Department of State. Although she wanted to remain anonymous, she provided her name and her phone number, and participated in a follow-up interview on March 4, 2002. She informed the department investigator that Gosnell was using unlicensed workers (including herself) to give IV anesthesia to patients when he was not at the clinic; that his facility was filthy; that two sick, flea-infested cats roamed freely in the procedure rooms, vomiting throughout; that Gosnell ate in the procedure rooms; that the autoclave used to sterilize instruments was broken; that he reused single-use curettes; that there were no licensed nurses at the facility when IV anesthesia was administered; that Gosnell allowed one patient to use her cousin’s insurance card to pay for an abortion; that Gosnell performed abortions on “underage children” against their will if their mothers asked him to; and that he performed other abortions without consent forms.
Choung told the Department of State investigator that she thought a second trimester patient had died at a hospital after Gosnell performed an abortion on her. And she said that she had seen patient files in which he prescribed 90 Percocet tablets (a narcotic combining oxycodone and acetaminophen) for a patient one week and then, again, 90 more tablets the next week. She gave very detailed information about the files, what she saw, and when. She provided the name of at least one patient, and suggested that the investigator look at her file. Choung wrote that any of the other clinic workers – except one named Jonathan – would be willing to confirm her information.
But the investigator with the Department of State did not question any of the other unlicensed workers. And the Board of Medicine did not use its subpoena power to obtain files to substantiate Choung’s complaint. No one even asked to see the facility or its files. The investigation consisted of three interviews – one with Gosnell; one by telephone with another doctor, Dr. Warren Taylor, who said he performed abortions at the clinic in 2001; and one with a pharmacist two blocks from the clinic on Lancaster Avenue.
Dr. Taylor confirmed some of what Choung said. He said that he remembered one case where he had refused to perform a procedure on an underage girl, but that he did not know if Gosnell had then done it. He claimed to know nothing more. The pharmacist said he had not detected a pattern of Gosnell over-prescribing narcotics. (However, by the time an investigation was finally conducted in 2010, that pharmacy had stopped honoring Gosnell’s prescriptions.)
Gosnell, according to the investigator’s report, did not directly contradict many of Choung’s allegations, but made excuses instead. He also told outright lies that could easily have been disproved. He said the clinic was licensed as a surgical facility – which it was not and is not. This fact could have been confirmed by a simple call to the Department of Health, or by an internet search. Gosnell claimed that he did not use Schedule II controlled substances for anesthesia, even though he did.
Gosnell asserted that he always administered the anesthesia, something any of the clinic workers would have refuted. He acknowledged that he let his patients choose their own anesthesia from mixes entitled “heavy,” “twilight sleep,” and “custom sleep” – names that should have been a tip-off that someone at the clinic was heavily sedating patients. Gosnell declined to provide a written response to Choung’s allegations.
Still, no one at the Department of State probed further to see if one of Choung’s most serious contentions – that unlicensed employees were administering the anesthesia with no medical professional present – was true. The investigator did not request to see any files. His notes indicate that he “visited the area of Women’s Medical Society,” but there is no indication that he asked to go in. He conducted his interview of Gosnell at a regional office in King of Prussia rather than at the doctor’s office where he could have confirmed many of Choung’s allegations first hand.
Even with this superficial inquiry, the investigator recommended further action. He concluded his report by suggesting that the Department of Health be notified of Choung’s complaint, which, he wrote, “alleges health issues at Women’s Medical Society that may be detrimental to staff and the public.” The investigator made it clear that he had not notified the Department of Health when he submitted his report. His investigation was completed by August 26, 2002.
According to the files turned over to the Grand Jury by the Department of State, no further action was taken until April 29, 2004 – nearly two years later – when Greenwald, the same prosecuting attorney who recommended against following up on Semika Shaw’s death, also recommended closing the case on Choung’s allegations. With serious allegations that Gosnell was allowing unlicensed workers to administer IV anesthesia, that he was over-prescribing Percocet, and that he was violating many provisions of the Abortion Control Act, Greenwald did not subpoena any records from the clinic. He did not send the investigator back to talk to the other unlicensed workers, as Choung had recommended. He simply concluded that the allegations had not been confirmed and recommended no prosecution. And Hartwell, the Senior Prosecutor-in Charge, agreed.
Even though the alleged violations were ones that the Department of State was charged with enforcing, Greenwald seconded, in 2004, there commendation that the investigator had made in 2002 – to send the case off to the Department of Health for “review and investigation.” Records subpoenaed by the Grand Jury from both the Department of State and the Department of Health fail to show that even this shirking of responsibility – the simple act of handing off of the case to someone else – was ever carried out.
The Department of State had supposedly been investigating Marcella Choung’s alarming allegations since December 2001 – long before the department and the Board of Medicine received the report of Semika Shaw’s death as a result of an abortion procedure at Gosnell’s’ clinic. It is incomprehensible to us how state officials could decide not to investigate the 22-year-old’s death after having heard Choung’s complaints. Especially since an insurance carrier and the State of Pennsylvania’s catastrophic loss fund had already agreed to settle with Ms. Shaw’s heirs for nearly a million dollars.
There can be no claim of a communication gap or of a case simply falling through the cracks: A single Board of Medicine prosecutor and his supervisor disposed of both the Choung allegations and the Shaw case at the same time. The Board has the authority to impose disciplinary sanctions or take other corrective measures if it finds that a doctor has practiced negligently. 40 P.S. §905. If nothing else, the Board prosecutors should have contacted the insurance company to find out what its investigation had revealed that prompted it to settle the malpractice suit in the Shaw case.
Even without a minimal effort at investigation, there was possibly one prosecutable violation apparent from the day the insurance carrier reported its settlement payment. Gosnell had not reported the Shaw civil suit to the Department of State. Depending on when the suit was filed, Pennsylvania’s MCARE (Medical Care Availability and Reduction of Error) Act would have required him to report any malpractice action to the Board of Medicine within 60 days of the filing. The Board of Medicine has the authority to fine doctors up to $10,000 for this violation.
With a call to the Department of Health, the Board’s attorneys could have known immediately of at least one other prosecutable offense: Gosnell violated the Abortion Control Act by not reporting Ms. Shaw’s death to the Department of Health. For this offense, the Board of Medicine had the authority to suspend or revoke Gosnell’s license. The state prosecutors, however, clearly had no interest in investigating Gosnell, much less holding him accountable for the crime spree that he called a medical practice