I am using the Grand Jury Report on the crimes of Philadelphia abortionist Kermit Gosnell as the basis of this Wiki. I will add material to support my contention that though Gosnell is beyond the pale, this is mainly in the way he combined and refined aspects of the ghoulish and callous disregard for humanity often seen in abortionists. He was hardly a pioneer.

In order to distinguish between my own writings, and those of the Grand Jury, I will use a different font that makes the Grand Jury Report appear to be typed.

The fifteen recommendations made by the grand jury, including changes of law (e.g., changing the statute of limitations on infanticide), licensing (i.e., that abortion facilities be licensed as ambulatory surgical centers, which would be inspected more frequently), and record-keeping and information-sharing (i.e., more communication between the Departments of State and of Health, since that part of the reason why Gosnell was able to escape scrutiny for so long).

Section VIII: Recommendations

Table of Contents

This Grand Jury’s responsibilities are not limited to recommending criminal charges against those directly responsible for the death of Karnamaya Mongar, the killing of babies born alive, and other criminal activity at the Women’s Medical Society clinic. The jurors assume, as well, the task of proposing institutional and legal reforms – to address the systematic flaws exemplified by this case, and to reduce the likelihood that similar crimes will recur.

1. There should be no statute of limitations for infanticide.

We recommend that the legislature amend the statute of limitations so that infanticide is treated as what it is – homicide. It is important to extend the statute of limitations not only because of the seriousness of the offense, but also because the crime is hard to discover. Gosnell, we are convinced, committed hundreds of acts of infanticide.

He got away with them for decades because they all took place inside his clinic. We are disappointed that we can charge him for only the babies he let die in the past two years. Homicide has no statute of limitations, and neither should infanticide.

2. The statute of limitations for illegal abortions beyond 24 weeks should be extended to five years.

Like infanticide, illegal abortions can go undetected for years, or forever. There is no one to complain and, most often, no witness to testify. Again, the jurors were frustrated that we could not recommend charges against Gosnell for scores of crimes we know he committed. We recommend that the statute of limitations for illegal post-24-week abortions be extended to five years.

3. Impersonating a doctor should be a crime.

We were surprised to find out that impersonating a doctor in Pennsylvania is not a crime. There are civil sanctions for those who practice medicine without a license, but not criminal sanctions. Pretending to be a doctor is a serious offense. The fake doctors at Women’s Medical Society were employed by Gosnell to probe women’s bodies. Worse still, he had these unlicensed phonies administering dangerous drugs to unsuspecting patients. We recommend making impersonation of a doctor a crime.

4. The Abortion Control Act should be amended to prohibit the mutilation of fetal remains.

One of the most bizarre things about this case is Dr. Gosnell’s fetal foot collection. He cut the feet off the fetuses he aborted and kept them in a row of jars. No civilized society can accept such an abomination, whether the fetuses in question were viable or not. Although current law prohibits abuse of corpse, there may be some question about how that law applies in the case of fetal remains.

To remove any such question, we recommend an amendment to the Abortion Control Act. The act contains a provision addressing fetal experimentation. Criminal penalties are provided, however, only for “experimentation” on a fetus that is as yet unborn, or on a fetus that is born alive. We believe that the statute should be changed to prohibit the mutilation of any fetal remains, whether or not viable or born alive.

5. The Pennsylvania Department of Health should license abortion clinics as ambulatory surgical facilities.

Under the plain language of the Health Care Facilities Act, abortion clinics should be regulated, licensed, and monitored as Ambulatory Surgical Facilities. Had the state Department of Health not inexplicably declined to classify abortion clinics as ASFs, Gosnell’s clinic would have been subject to yearly inspection and licensing.

The department’s inspectors could have inspected at any time, announced or unannounced, to investigate any complaints. The sight of unlicensed employees sedating patients in Gosnell’s absence would presumably have triggered action. Given the clinic’s filthy conditions, it surely would have been shut down long ago if DOH had merely taken a look.

The regulations for Pennsylvania’s ambulatory surgical facilities – which run over 30 pages – provide a comprehensive set of rules and procedures to assure overall quality of care at such facilities. The effect of the Department of Health’s reluctance to treat abortion clinics as ASFs was to accord patients of those facilities far less protection than patients seeking, for example, liposuction or a colonoscopy.

Those clinics, unlike abortion facilities, must implement measures for infection control (28 Pa. Code. §567.3 lists 17 specific procedures that ASFs must follow to control infection). They must use sterile linens (§567.21-24). They must keep premises and equipment clean and free of vermin, insects, rodents, and litter (§567.31). The regulations devote three pages to anesthesia protocols (28 Pa. Code §555.33).

Gosnell’s facility fell far below the basic, minimum standards of care that any patient having a surgical procedure should expect to receive. There is no justification for denying abortion patients the protections available to every other patient of an ambulatory surgical facility, and no reason to exempt abortion clinics from meeting these standards.

The inspection of abortion facilities is too important a responsibility to be left to the discretion of the Department of Health, subject to the whim of bureaucrats and lawyers who have abdicated their duty to uphold the law. As ASFs, abortion providers would be subject to mandatory annual inspections. If a facility failed to meet the standards required for all ambulatory surgical facilities, it would lose its license.

6. The state Department of Health should update the regulations for abortion providers.

Officials from the Pennsylvania Department of Health complained that the regulations that it wrote do not give it the authority needed to carry out its duty to protect the health of women having abortions and of premature babies delivered alive. We recommend that the department amend its regulations so that it is not only able to carry out its responsibilities, but is required to do so. The regulations, which have stood essentially unchanged since 1988, should also be updated to reflect changes in abortion practices and medical advances.

Crucial to state health officials’ ability to ensure quality care and compliance with the law is the authority to inspect facilities and their records regularly and thoroughly.

The abortion regulations should be amended to require annual inspections and to allow unannounced inspections. Even if the Department of Health licenses abortion clinics as ASFs, there is still a need to inspect for compliance with laws and regulations that do not apply to other ASFs – safety measures that are specific to childbirth and protections for premature infants aborted alive. Inspections for compliance with the Abortion Control Act and its regulations could be conducted at the same time as the ASF inspections to minimize intrusion and maximize resources.

The abortion regulations should specify that annual inspections of abortion providers include, at a minimum:

  • Verification of necessary certifications and licenses of all staff. A clinic must also provide a list of all employees, including any unpaid externs, interns, residents, or volunteers.
  • Certification that all medical staff are CPR trained.
  • A review of patient files to determine that they are properly maintained, secure, and current. File inspection should include, at a minimum, a review of:
    • Consent forms. The form should be signed at the time counseling is provided by a physician, if counseling is in person. If the counseling occurs over the telephone, the form should acknowledge this, and state the time of the counseling.
    • Ultrasounds. They should be signed by a certified technician, and must include the accurate date and time when the ultrasound was performed.
    • Anesthesia records. They should include what drugs were administered and by whom.
    • Pathology reports. These should be required for second-trimester abortions after the 20th week of gestation. The doctor must certify that the fetus is not viable and send the fetus to a pathologist for confirmation.
    • Recovery room records. They should be signed by the attending nurse.
    • Report forms. Clinics must file a report with the state for every abortion. These should be cross-checked against monthly and quarterly reports that clinics must also file with the state.
  • Inspection of all equipment, to be sure it is in working order.
  • Inspection of medications for expiration dates.

The Department of Health might draw additional standards for inspection from protocols published by the National Abortion Federation, Planned Parenthood, and CHOICE, a Philadelphia non-profit that offers information, education, and referrals related to women’s and children’s health care. These groups conduct inspections of abortion facilities before approving them or referring women to them. Their standards are, in many ways, more stringent and more protective of women’s safety than are Pennsylvania’s abortion regulations.

The revised abortion regulations should specify procedures to be followed when deficiencies are found, and consequences for when the deficiencies are not remedied. We recommend requiring that identified problems be corrected within 30 days, with a clinic subject to unannounced re-inspections to check remediation.

Loss of license or approval to operate should be the sanction for failure to take adequate remedial action. The Department of Health should give itself the power to take immediate action to revoke approval of a facility if deficiencies present an immediate danger to women or to viable fetuses beyond 24 weeks, whom the law protects.

In order to deter providers like Gosnell from attempting to elude detection for multiple crimes by simply failing to report second and third-trimester abortions, the sanction for willful and repeated failure to report should be made more severe, including permanent revocation of the facility’s approval as an abortion provider.

We recommend that the state Department of Health’s inspection reports be sent to the Philadelphia Department of Public Health. Failure to remedy deficiencies should also to be reported to the city health department and to the Department of State for action by the Board of Medicine.

In addition, we recommend the following amendments to Pennsylvania’s abortion regulations:

• Require that all abortions past 18 weeks be performed or supervised by a board certified obstetrician/gynecologist. The current regulation, requiring only that a clinic have a certified obstetrician/gynecologist available for consultation, clearly was ineffective in this case. The name of the supervising obstetrician/gynecologist should be on the paperwork for every abortion the doctor supervises or performs.
• Give the Department of Health the authority and duty to investigate all reports of maternal death arising from pregnancy, childbirth, or abortion. Require that such maternal deaths be investigated by DOH as quickly as possible, but in no case later than 60 days of the report. The results of the investigation should be conveyed to county health departments, to the state Board of Medicine, and to law enforcement.

7. Pennsylvania’s Departments of Health and State should make their process for filing complaints against doctors and facilities simpler and more responsive.

The Pennsylvania Department of Health makes it next to impossible to file a complaint concerning abortion providers. We could find no mention on its website that the department was even responsible for regulating or overseeing abortion clinics. When persistent lawyers, like Semika Shaw’s; and doctors, such as Dr. Hellman, the Medical Examiner from Delaware County, and Dr. Schwarz, Philadelphia’s Health Commissioner, have registered complaints anyway, they have been uniformly ignored.

DOH did not inspect Gosnell’s clinic even after Karnamaya Mongar died.

We applaud the current Secretary of Health for reinstituting regular inspections of abortion facilities. But the department must also develop an effective, easy, and responsive complaint process. Complaints should be accepted by telephone (a toll-free 800 number should be instituted), online, or in writing – in any manner, that is, in which a citizen might choose to complain. Every complaint should be logged in and investigated. The complainant should be informed that the department has received the complaint and should be provided with a means of following up to check its status. When fellow doctors, public health agencies, or law enforcement agencies file complaints, they, obviously, should be taken seriously and should trigger immediate investigations, including unannounced inspections.

The Department of State has a complaint process, and a complaint form, for filing complaints against doctors. The complaint process should be made easier and more responsive. Complaint forms to health care-related boards should be tailored to medical concerns and assure confidentiality of patients’ records. Forms should be available in common foreign languages and should be simple to understand and fill out. Complaints should also be accepted by telephone and internet, with the phone number published online. Patients should be allowed to remain anonymous, but third-party complainants should be identified. Hearings, if necessary, should be offered locally.

All complaints should be acknowledged and logged in. Complainants should have a way of tracking their status. If a complaint comes in that properly belongs with the state Department of Health or local health agencies, the Department of State should be responsible to make sure that it gets to the right place and is investigated appropriately.

8. Philadelphia’s Department of Public Health should develop a hotline to assist residents in filing complaints with the proper state and local authorities.

The Philadelphia Department of Public Health does not regulate doctors or medical facilities. It should, however, play an active role in assuring that Philadelphia doctors and facilities are providing safe and competent services to its citizens. We recommend that the department devise and implement a hotline system along the lines suggested by Dr. Schwarz. It should log in complaints and assure that they are forwarded to the proper state agency, whether it is the Department of Health for complaints about facilities, the Department of State for complaints about individual doctors, or the city health department for issues under its authority. Among the three departments, a way should be devised to track complaints and respond to the medical consumers. The city health department should also track complaints so that it can identify providers that have a particularly large number of complaints.

We recommend that Philadelphia City Council pass a law requiring that medical facilities post the city health department hotline number at their front desks.

9. The Pennsylvania Departments of Health and State need to share information they receive that is pertinent to each other’s responsibilities.

It was clear from the testimony of witnesses from both agencies that there is inadequate coordination between the two departments that should serve a common purpose – to protect public health and safety. Although the need to coordinate functions obviously exists, given that the Department of State is charged with licensing and regulating doctors, while the Department of Health is charged with licensing and monitoring the health care facilities where they practice, no system is in place now that makes this happen.

Coordination between the two departments is especially crucial because different laws require different information to be reported to different agencies. Both departments could carry out their duties better if they shared this information and the results of their investigations. For example, the Abortion Control Act requires doctors to report maternal deaths and complications resulting from abortions to the Department of Health, but not the Department of State (18 Pa.C.S. §3214(g) and (h)).

The Medical Care Availability and Reduction of Error (MCARE) law also requires health care facilities to report “serious incidents” to the Department of Health (40 P.S. §313), which is required to investigate the incidents (40 P.S. §306). But lawsuits are reported to the Department of State (40 P.S. §903). Insurance companies likewise report settlements to the Department of State under the MCARE act (40 P.S. §746).

The Abortion Control Act gives the Department of Health the job of regulating and monitoring abortion clinics (18 Pa.C.S. §3207). But enforcement of many of the act’s provisions is left to the Department of State (18 Pa.C.S. §3219). These two departments have to devise a system so that the agency that has the authority and the responsibility to take action also has the necessary information.

10. The Department of State should train its prosecutors and provide the necessary tools so they can more effectively investigate complaints against doctors.

Our review of the Department of State’s handling of complaints filed against Gosnell revealed many problems. Some of the prosecutors seemed to be unaware of the full history of complaints against the doctor. Others seemed not to coordinate with a colleague who was working on a similar complaint. Prosecutor Ruiz said that he had no way to find out about malpractice suits filed against a doctor, unless they were reported to the department. And some Board of Medicine attorneys simply used terrible judgment – closing an “investigation” of a death with no apparent investigation.
If the National Practitioner Data Bank is not accessible to prosecutors and investigators for the Department of State, it should be. If it is available, all prosecutors should be instructed to use it. Had Ruiz known that Gosnell’s insurers and a State of Pennsylvania insurance fund had paid $1.7 million to five women whose uteruses, cervixes, and bowels he had perforated, he might have viewed Dana Haynes’s case differently. If he had noticed that, in 2007, Gosnell paid $10,000 to settle a civil lawsuit for performing an abortion on a minor without parental consent, Ruiz could have charged Gosnell with a violation of the Abortion Control Act.

The NPDB database also provides another way that the Department of State can check that doctors are reporting their malpractice suits under MCARE. The prosecutors who handled Gosnell’s complaints seemed unconcerned about MCARE reporting. But the effectiveness of the entire system contemplated by the MCARE law – which was designed to enhance patient safety – rests largely on self-reporting by doctors. To make it work, there has to be enforcement of the reporting requirements.

Reporting by doctors should be checked against public records and the NPDB database whenever there is a complaint or an application for license renewal. Most importantly, Department of State prosecutors should be instructed that their job is to suspend and revoke the licenses of doctors who are incompetent, unethical, or criminal. Failure to do so should be grounds for termination.

11. The Pennsylvania Departments of Health and State should be required to share with law enforcement information relevant to criminal investigations.

The jurors are aware that the Department of State initially asserted some type of privilege with respect to the confidentiality of its investigative files. We also heard evidence that Department of Health investigators were instructed by department lawyers not to share information about Karnamaya Mongar’s death with law enforcement. And, in fact, DOH did not share with law enforcement the letter that Gosnell sent to the department notifying it of Mrs. Mongar’s death. That letter, in which Gosnell admitted what drugs were administered, but lied about how much medication was given and by whom, would have been helpful to have before the February 2010 raid.

We do not believe the MCARE act or any other statute protects the department’s records from subpoena by a grand jury or law enforcement. If the Department of State or Health insists on interpreting any statute to have that effect, we recommend that such law be changed to clarify that the department’s records should be made available for criminal investigations.

We believe the departments not only are able to share relevant information with law enforcement – they should be required to do so. If either the Department of State or the Department of Health learns of criminal activity during investigations, or even an inspection, there should be an obligation to report it to law enforcement.

12. A task force including the Medical Examiner’s Office, the District Attorney’s Office, and the Police Department should work to improve protocols for investigating suspicious deaths.

We are troubled that Mrs. Mongar’s death might have gone unnoticed if not for the drug raid three months later. The city must improve protocols for investigating suspicious deaths that require investigation before they can be labeled homicide. We recommend that a task force be formed to develop protocols for cases such as this one – where a patient dies from an overdose of drugs at a medical facility – as well as others where the manner of death requires substantial investigation, including gathering facts and evidence possibly outside the expertise of the Medical Examiner.

13. The City of Philadelphia should enforce medical waste disposal plans that it requires from providers.

Commissioner Schwarz testified that the city instituted a program to require medical providers to submit infectious waste disposal plans simply as a revenue measure.

We recommend that the city actually enforce compliance with those plans. At the very least, the department should respond more effectively than it did in this case when a complaint is made. If the department enforces compliance with fines, it can continue to generate revenue and offset the cost of additional inspectors.

14. We recommend that the National Abortion Federation reconsider the inclusion of Atlantic Women’s Medical Services in Delaware in its membership.

We recommend that NAF reassess the membership of Atlantic Women’s Medical Services, the Delaware abortion clinic where Gosnell worked part-time before losing his license in that state. We learned that at least six patients were referred from Atlantic to Gosnell’s clinic in Philadelphia for illegal late-term abortions. These patients paid Atlantic for late-term procedures performed by Gosnell in his Lancaster Avenue clinic.

We heard evidence that Gosnell would insert laminaria in patients in Delaware and then have them come to his Philadelphia office for the abortion procedure itself. The director of Atlantic Women’s Medical Services, Leroy Brinkley, was unconcerned. He did not properly supervise the doctors he hired as “independent contractors” to assure that they were complying with the law. Remarkably, despite Gosnell’s long time association with Atlantic, Brinkley only produced three files for patients seen by Gosnell at Brinkley’s clinic.

15. The authorities responsible for overseeing, monitoring, or licensing Gosnell or his operation should conduct serious self-assessments to determine why their departments failed to protect the women and babies whose lives were imperiled at Gosnell’s clinic. Employees who failed to perform their jobs of protecting the public should be held accountable.

The employees of the state and local health departments and the prosecutors for the Board of Medicine are charged with protecting the public health. Very few that we ran across in this investigation came even close to fulfilling that duty. These people seemed oblivious to the connection between their dereliction and the deaths and injuries that Gosnell inflicted under their watch.

Those at the state Department of Health who were responsible for assuring the health and safety of women and infants delivered live at abortion clinics were aggressively passive when it came to inspections or responding to complaints. The department’s attorneys were encouraged to misinterpret laws so that the department could evade its duty to protect public health. DOH employees were only too glad to go along with the charade. The prosecutors for the Board of Medicine, who are charged with sanctioning bad doctors, appeared determined not to discipline even one of the worst doctors in the region.

Numerous city health department employees went about their jobs going in and out of Gosnell’s clinic, performing some particular task to promote public health, while ignoring the most squalid, unsafe conditions imaginable in a Philadelphia health care facility. One diligent employee, Lori Matijkiw, who reported what she saw, expected her supervisors to do something. They did nothing.

It is not our job to say who should be fired or demoted. We believe, however, that anyone responsible for permitting Gosnell to operate as he did should face strong disciplinary action up to and including termination. This includes not only the people who failed to do the inspecting, the prosecuting, and the protecting, but also those at the top who obviously tolerated, or even encouraged, the inaction.

The Department of State literally licensed Gosnell’s criminally dangerous behavior. DOH gave its stamp of approval to his facility. These agencies do not deserve the public’s trust. The fate of Karnamaya Mongar and countless babies with severed spinal cords is proof that people at those departments were not doing their jobs. Those charged with protecting the public must do better.