Pennsylvania+Department+of+State

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.

**Summary:**

A look at how the Pennsylvania State Board of Medicine and Pennsylvania's Department of State failed to act to protect women from Gosnell.

=PENNSYLVANIA’S DEPARTMENT OF STATE NEGLECTED ITS DUTY TO DISCIPLINE A DOCTOR ENGAGED IN UNPROFESSIONAL CONDUCT. =

The Department of Health was not the only state agency that could and should have shut down Gosnell decades ago. The State Board of Medicine (the Board) is one of 29 boards overseen by the Department of State’s Bureau of Professional and Occupational Affairs. The Board’s attorneys had ample notice of Gosnell’s illegal and reckless abortion practices, and of the damage he had done to patients. Eight years before Karnamaya Mongar died, a former Gosnell employee told the Department of State about the illegal practice that resulted in Mrs. Mongar’s death: Gosnell had unlicensed workers anesthetizing patients when he was not at the clinic. Yet, despite receiving that report and several other serious complaints over the years, the Board took no action to suspend or revoke his license.

 Attorneys for Pennsylvania’s Department of State disregarded notices that numerous patients of Gosnell were hospitalized – infected, with fetal remains still inside them; and with perforated uteruses, cervixes, and bowels. Incredibly, in 2004, Department of State attorneys closed – //without investigation// – a case reported to the Board involving the death of 22-year-old Semika Shaw.

 Between 2002 and 2009, Board of Medicine attorneys reviewed five cases involving malpractice and other complaints against Gosnell. (The Grand Jury also received records of three older complaints – from 1983, 1990, and 1992 – one of which resulted in a reprimand.) None of the assigned attorneys, or their supervisors, suggested that the Board take action against the deviant doctor. In fact, despite serious allegations, three of the cases were closed without any investigation. The other two were investigated and then closed – without any action being taken.

== Pennsylvania Department of State attorneys failed to investigate a 22-year-old patient’s death caused by Gosnell’s recklessness. ==

 In all this inaction, one failure to investigate stands out. On October 9, 2002, the Professional Underwriters Liability Insurance Company reported to the State Board of Medicine that it had paid a $400,000 settlement to the family of Semika Shaw, the 22- year-old mother of two who died following an abortion procedure at Gosnell’s clinic in March 2000. (In January 2003, the Pennsylvania Medical Professional Liability Catastrophe Loss Fund reported to the Department of State that it had paid an additional $500,000 toward a $900,000 award to the family.) The October 9 report is logged in as “received” by the Department of State’s “Complaints Office” on December 6, 2002. The file turned over to the Grand Jury shows no further activity until over a year later – January 2, 2004 – when a one-page printout of Gosnell’s license information is stamped “received” by the complaints office.

 The next action recorded in the file is a one-paragraph “Prosecution Evaluation,” dated April 29, 2004, in which Mark Greenwald, a prosecuting attorney for the Board of Medicine purportedly summarizes the case and concludes: “Prosecution not Warranted.” Here is the paragraph:

>>  **Brief Factual Summary:** The file was opened as a result of a Medical Malpractice Payment Report. The underlying malpractice case involved the death of a 22 year old female following the termination of her 5th pregnancy. Following a seemingly routine procedure on 3/1/02, the patient was taken to the ER at the University of Pennsylvania with complaints of pain and heavy bleeding. The patient underwent surgery but the surgeon was unable to locate any perforation and the patient died from infection and sepsis. Although the incident is tragic, especially in light of the age of the patient, the risk was inherent with the procedure performed by Respondent [Gosnell] and administrative action against respondent’s license is not warranted. >> >>  **RECOMMENDATION**: Z-02, Prosecution not Warranted

 In fact, all the information in this single paragraph is taken entirely – including incorrect dates – from the insurance company’s original paragraph-long report sent to the Board in October 2002. And yet, while Greenwald included the irrelevant, but pointed, assertion that this was the patient’s fifth pregnancy that was being terminated, the Department of State prosecutor omitted from his summary the most important information that the insurance company had provided: “Autopsy report indicated perforation of cervix into uterus. Heirs alleged our insured improperly performed the termination procedure and failed to diagnose post-op uterine perforation resulting in sepsis and death.”

 Greenwald’s supervisor, Charles J. Hartwell, the Senior Prosecutor-in-Charge at the Department of State’s Bureau of Professional and Occupational Affairs, purportedly reviewed Greenwald’s “evaluation” and approved it on May 14, 2004. Hartwell did so, ostensibly, knowing nothing beyond the bare facts that Semika Shaw died from infection and sepsis two days after Gosnell perforated her uterus and cervix during an abortion procedure. (Greenwald also omitted from his evaluation that the insurance carrier had settled the case for $900,000, the majority of which had to be disbursed by a Pennsylvania catastrophic expense fund.)

 Aside from the absence of facts to support the prosecutors’ recommendation, logic, too, is missing. Abortion in the hands of decent, caring doctors is an extremely safe procedure for patients. Even if it were not, that does not mean that the death in this case was not actionable by the state. If prosecutors are going to forgo investigations every time someone dies during a medical procedure, with the excuse that death is always a possible risk with any kind of surgery, there is no point in pretending that they are investigating and prosecuting cases against doctors.

== Before Department of State prosecutors decided not to investigate the 22-year-old patient’s death, 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.)

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> Even though the alleged violations were ones that the Department of State was charged with enforcing, Greenwald seconded, in 2004, the recommendation 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> Other Department of State prosecutors also failed to act against Gosnell.
<span style="font-family: 'Courier New',Courier,monospace;"> Greenwald and Hartwell were not the only state Board of Medicine attorneys who failed to take appropriate action against Gosnell. In September 2005, a plaintiff’s attorney sent a copy of a malpractice complaint he had filed against Gosnell to the Department of State. The case involved a patient we will call “Alice.” She had suffered a seizure after Gosnell administered anesthesia to her in a procedure room as he prepared to perform an abortion in March 2005. Alice had notified clinic staff that she was undergoing methadone treatment and that she had received her daily methadone dose before the procedure. The lawsuit alleged that, despite this warning, Gosnell gave her a medication that was clearly contraindicated for people on methadone, triggering a seizure. According to the complaint, Alice told Gosnell to stop the medication when she started to have a reaction, but Gosnell ignored her and continued the IV injection. Alice began to convulse and fell off of the procedure table, striking her head. A companion who had accompanied Alice to the clinic was summoned to the procedure room to assist. He found the patient naked and convulsing on the floor and asked that someone call 911.

<span style="font-family: 'Courier New',Courier,monospace;"> When Gosnell denied his request, the companion attempted to leave the clinic to summon help. The complaint alleges that the doors were locked and the staff refused to let him out. As a result, Alice convulsed for an hour while Gosnell and the staff refused to allow her companion to leave the clinic to get help. Finally, Gosnell permitted the companion to go get some methadone to administer. The additional methadone stopped the convulsions.

<span style="font-family: 'Courier New',Courier,monospace;"> On May 4, 2006, David Grubb, another prosecuting attorney for the Board of Medicine, recommended closing the file without any investigation or prosecution. Grubb closed the case without interviewing Alice, her companion, Gosnell, or any of his staff members. Grubb apparently ignored altogether a suggestion contained in the plaintiff’s attorney’s letter that Gosnell was not insured at the time of the procedure – a clear violation of law. The plaintiff’s attorney pointed out that Gosnell had answered the complaint himself, without benefit of a lawyer, which was not customary if the doctor had insurance. Grubb’s supervisor, Senior Prosecutor-in-Charge Andrew Kramer, approved of closing the case without investigation on May 16, 2006.

<span style="font-family: 'Courier New',Courier,monospace;"> On June 9, 2006, Grubb wrote to Gosnell informing him that the Department of State had decided that no further investigation was warranted. The prosecutor thanked Gosnell “for forwarding a copy of the complaint” to the department, even though the only copy of the complaint in the file had been provided by the plaintiff’s attorney. The documents turned over to the Grand Jury suggest that Gosnell once again violated the MCARE law by failing to report Alice’s lawsuit. But, again, the prosecuting attorneys with the Board of Medicine either did not notice or did not care.

<span style="font-family: 'Courier New',Courier,monospace;"> Aside from the obvious reporting violation, had Grubb simply checked to see if Gosnell was insured in March 2005, he would have found out that he was not. Grubb would also have discovered that a colleague at the Bureau of Professional and Occupational Affairs, Prosecuting Attorney William Newport, had been handling another complaint about Gosnell’s lack of insurance coverage. On August 2, 2005, a “Compliance Coordinator” for the MCARE Fund had notified the Department of State that Gosnell was not in compliance with the MCARE law’s requirement that doctors carry liability insurance. On September 28, 2005, and again on July 5, 2006, Prosecuting Attorney Newport wrote to Gosnell, requesting that the doctor respond to the complaint that he was non-compliant with MCARE’s liability insurance requirements.

<span style="font-family: 'Courier New',Courier,monospace;"> On July 20, 2006, Gosnell’s insurance agent sent a response to a Department of State paralegal, asserting that Gosnell was covered from 1998 through 2003. For the next two years, the paralegal, at Newport’s request, kept checking with various compliance officers at the MCARE Fund to ascertain whether Gosnell was compliant. The answer was always no. Nevertheless, on September 5, 2008, the paralegal followed Newport’s instructions and recommended closing the file. The file was closed without any meaningful investigation.

<span style="font-family: 'Courier New',Courier,monospace;"> Had Newport conducted a real investigation, or subpoenaed documents, he would have discovered what Sherilyn Gillespie, the Department of State investigator, found out in 2010 – that Gosnell was not insured //at all// between July 15, 2004, and April 18, 2005. Thus, had either of two Board of Medicine prosecutors investigated the complaint made by Alice’s attorney, they would have discovered Gosnell’s blatant violation of the MCARE law. They would have learned, as Gillespie did in May 2010, that Gosnell was operating without insurance when Alice had gone to him for an abortion in March 2005, and that Gosnell had told his insurance agent that he was practicing only in Delaware at the time Alice had her seizure at his clinic.

<span style="font-family: 'Courier New',Courier,monospace;"> Unfortunately, like the other prosecuting attorneys working for the Department of State’s Board of Medicine, neither Grubb nor Newport investigated or resolved the complaints that continued to pile up against Gosnell.

==<span style="font-family: 'Courier New',Courier,monospace;"> In 2009, another Department of State prosecutor closed – without any investigation – a complaint that Gosnell acted recklessly in perforating another woman’s uterus, cervix, and bowel. ==

<span style="font-family: 'Courier New',Courier,monospace;"> When Gosnell applied to renew his medical license in December 2008, he indicated, as he was required to, that a civil malpractice lawsuit had been filed against him in November 2008. He had not sent a copy of the complaint to the Board of Medicine, as required by MCARE, but he eventually did so after it was requested.

<span style="font-family: 'Courier New',Courier,monospace;"> The lawsuit was brought by Dana Haynes, who had gone to Gosnell for an abortion on November 11, 2006. The complaint alleged that Gosnell had performed the abortion in a reckless manner, tearing Haynes’s cervix, uterus, and bowel. It asserted that after performing the botched abortion, Gosnell failed to call an ambulance and, instead, kept her waiting at the clinic for four hours, bleeding and in severe pain. Haynes accused Gosnell of placing her life in jeopardy in order to cover up his negligence.

<span style="font-family: 'Courier New',Courier,monospace;"> The complaint stated that Haynes bled extensively for a long time and had to be hospitalized. At the hospital, doctors discovered that Gosnell had not completed the abortion and had left fetal parts inside Haynes. Her injuries required extensive surgery.

<span style="font-family: 'Courier New',Courier,monospace;"> On April 20, 2009, a prosecuting attorney for the Department of State, Juan Ruiz, recommended closing the file without “intensive review” – in fact, without reviewing anything but the complaint. With no other facts, and no attempt to determine any other facts, Ruiz concluded: “The important allegation is that referenced above [Plaintiff contends she suffered permanent injuries due to respondent lacerating her small intestine during an abortion.]. Barring a pattern of conduct – which does not exist in this case – this would be, at most, considered simple negligence or incompetence, as this would be a case of surgical site injury.”

<span style="font-family: 'Courier New',Courier,monospace;"> Ruiz testified before the Grand Jury. He insisted that “everything of substance gets investigated.” Yet he ordered no investigation of Dana Haynes’s complaint. No one even talked to Ms. Haynes – until investigator Gillespie did after the February 2010 raid. Ruiz wrote that no “pattern of conduct” existed in this case. But how could he possibly know that? He did not look at Gosnell’s history. A simple database search conducted by the evaluator from the National Abortion Federation, before she visited the clinic in December 2009, showed that at least five women before Haynes had successfully sued Gosnell for perforating their uteruses. Private settlements do not show up on the database, so there could be many more. Gosnell, or his insurers, had paid over $1.7 million to these women or their families. One, Semika Shaw, had died from her injuries – as Ruiz should have been aware.

<span style="font-family: 'Courier New',Courier,monospace;"> Ruiz claimed that he had no way to find this information. If that is true, it is appalling. The database used by the abortion federation’s evaluator – the National Practitioner Data Bank (NPDB) – is designed for use by state boards of medicine to assist them in quickly and easily identifying and disciplining medical providers who engage in unprofessional behavior. The database was established by the U.S. Congress and is administered by the U.S. Department of Health and Human Services. It lists the names of complainants, their allegations, and the amount of the settlements. The basis for Ruiz’s decision – that Gosnell had no history of perforating uteruses – would have been quickly dispelled had he simply checked the NPDB’s information.

<span style="font-family: 'Courier New',Courier,monospace;"> Even if the prosecuting attorney did not have access to the NPDB database, Ruiz should have been alarmed by the information in the Department of State’s own records. Semika Shaw had died from the same injuries alleged by Ms. Haynes. Marcella Choung, who had no monetary interest, had spelled out essentially all of Gosnell’s criminal practices to the department. The woman we have referred to as Alice and her companion had accused Gosnell of locking the companion in the clinic to prevent him from getting medical help for Alice. Accordingly, when Ms. Haynes alleged that the doctor did not summon help for her, but left her for four hours, bleeding and in pain, that should have warranted at least a phone call to Ms. Haynes.

<span style="font-family: 'Courier New',Courier,monospace;"> Yet Ruiz, apparently, did not even read the complaint carefully. He claimed before the Grand Jury that no one investigated the allegation that rescue was not called for four hours because it was not contained in the legal filing in Ms. Haynes’s medical malpractice suit. In fact, it was. The complaint stated:

>> <span style="font-family: 'Courier New',Courier,monospace;"> 22. The negligence and gross negligence, recklessness and carelessness of Defendant Gosnell, included, but is not limited to: >> <span style="display: block; font-family: 'Courier New',Courier,monospace; text-align: center;">* * *

>>> <span style="font-family: 'Courier New',Courier,monospace;">(j) Allowing the patient to wait four (4) hours in severe pain and bleeding before calling an ambulance to take the plaintiff to receive proper care for the injury caused to her; >>> >>> <span style="font-family: 'Courier New',Courier,monospace;"> (k) Placing plaintiff’s life in jeopardy in order to cover up his own negligence; …

<span style="font-family: 'Courier New',Courier,monospace;"> Prosecuting Attorney Ruiz testified that it was unfortunate that Haynes’s attorney “did not lay out all of the facts in that complaint.” Even leaving aside the erroneous claim that the complaint did not include an allegation about failing to call an ambulance in a timely fashion, the prosecutor’s testimony points out a serious flaw in the Department of State’s procedures. The department’s disciplinary responsibilities should not depend on the quality of a plaintiff’s representation. At least some independent fact-finding should take place. At a minimum, the complainant should be interviewed.

<span style="font-family: 'Courier New',Courier,monospace;"> Had the prosecutor asked an investigator to call Ms. Haynes, he would have learned what inspector Gillespie did a few months later – that in Ms. Haynes’s case, Gosnell had locked her family members //out// of the clinic, preventing them from discovering that she was bleeding profusely after a bungled procedure and from summoning help. He would also have learned that Gosnell was violating the Abortion Control Act.

<span style="font-family: 'Courier New',Courier,monospace;"> When interviewed, Ms. Haynes, age 38, told Gillespie that she was nearly 17 weeks pregnant when Gosnell performed a two-day, second-trimester abortion. Gosnell inserted laminaria on November 10, 2006, and she returned the next day for the procedure. She said that no one counseled her about the abortion – and that no one had counseled her before three other abortions performed at Gosnell’s clinic. She arrived in the afternoon on November 11 and was given some valium and medicine to help her dilate. At 7:45 p.m., when she was taken to the procedure room, she called a cousin to tell her that she would be ready for pickup shortly.

<span style="font-family: 'Courier New',Courier,monospace;"> In the procedure room, one of Gosnell’s sons inserted an IV and administered anesthesia. Ms. Haynes said she remembered Gosnell entering the room, and talking to his son, but then “everything else is a blur.” When she woke up, she was in the hospital with her family around her. Ms. Haynes told the investigator that the clinic staff refused to let her two cousins come inside the building when they arrived around 8:00 p.m. to pick her up.

<span style="font-family: 'Courier New',Courier,monospace;"> This one interview established at least two serious violations that should have prompted disciplinary action by the Board of Medicine – Gosnell’s routine failure to counsel abortion patients in violation of the Abortion Control Act, and the use of unlicensed employees to perform work for which they were unqualified. The evidence that clinic staff locked Ms. Haynes’s cousins out of the facility to cover up the fact that Gosnell had seriously injured the patient – and thereby prevented getting her help – was even more serious. It clearly warranted an investigation and disciplinary action.

<span style="font-family: 'Courier New',Courier,monospace;"> Investigator Gillespie’s interviews with Ms. Haynes’s cousins confirmed that they had been purposefully locked out of the facility for over four hours. When they first arrived at 8:00 p.m. to pick up Ms. Haynes, they rang the buzzer on the clinic’s front door, but were told that she was not ready and that they could not come inside to wait. The cousins went across the street to get pizza and returned an hour later. Again, the clinic staff refused to admit them. This went on for several hours as the cousins watched a continuous flow of people enter and leave the building.

<span style="font-family: 'Courier New',Courier,monospace;"> Finally, sometime after midnight, the cousins threatened to call the police if they were not allowed into the building. A clinic employee then told them to wait a minute and eventually admitted them. Once inside, the cousins declined the worker’s request that they wait to speak to Gosnell and demanded to see Ms. Haynes. The worker escorted them to the back of the building where they found Ms. Haynes by herself, lying on a recliner, with no supervision, no monitoring equipment, and no pants. She was covered with a throw blanket and there was blood on the floor around her. She was slumped over and was completely unresponsive when they tried to arouse her.

<span style="font-family: 'Courier New',Courier,monospace;"> Gosnell appeared about five minutes later. He told them she was heavily sedated because she had just had the procedure – which they knew was false because of Ms. Haynes’s phone call at 7:45, when the procedure was about to start. He told them that there had been complications and that he had been unable to remove the entire fetus. He insisted there was no need to call an ambulance, but they demanded that he do so.

<span style="font-family: 'Courier New',Courier,monospace;"> At the hospital, Ms. Haynes was told that Gosnell had left most of the fetus inside her, and that he had cut holes in her cervix and bowel. She required a large blood transfusion and remained hospitalized for five days.

<span style="font-family: 'Courier New',Courier,monospace;"> Had investigators from the Department of State pursued Ms. Haynes’ complaint and spoken to Kareema Cross, she could have told them what she told the Grand Jury – that Gosnell did not call an ambulance because he wanted to keep trying to complete the abortion. He had already removed the patient from the room once, performed other procedures, and brought her back to try again. Cross knew that the doctor had punctured something. Had the cousins not threatened to involve the police, Gosnell would undoubtedly have brought Ms. Haynes back into the procedure room, for at least the third time, rather than summon an ambulance.

<span style="font-family: 'Courier New',Courier,monospace;"> In the end, none of this mattered as far as the Department of State was concerned. No one there thought Ms. Haynes’ complaint was worth investigating.

<span style="font-family: 'Courier New',Courier,monospace;">The problems with the Board of Medicine and Department of State go beyond individual prosecuting attorneys.
<span style="font-family: 'Courier New',Courier,monospace;"> The Grand Jury is convinced – based on the number of state prosecutors who failed to take action against Gosnell, on the fact that the prosecutors’ supervisors uniformly approved recommendations not to take action, and on the testimony of Prosecuting Attorney Ruiz – that the problem does not lie just with the individual attorneys. There are clearly problems with procedures, training, management, and motivation within the Department of State’s Bureau of Professional and Occupational Affairs.

<span style="font-family: 'Courier New',Courier,monospace;"> It seems obvious that, in order to evaluate a complaint against a doctor, a prosecutor should look at the doctor’s history, including other complaints, lawsuits, and their outcomes. Yet the various prosecuting attorneys who handled the complaints against Gosnell seemed either unaware of or unconcerned about the content – or even the existence – of previous complaints. Ruiz, for example, when asked how many complaints against the doctor had come in, said that the department had been notified of only two lawsuits involving Gosnell. These, he said, were Alice’s in 2005 and Dana Haynes’s in 2008. He also acknowledged that the Board had received Marcella Choung’s complaint.

<span style="font-family: 'Courier New',Courier,monospace;"> Ruiz’s supervisor, Kerry Maloney, apparently shared the same misunderstanding regarding the number of complaints. Maloney is quoted in a March 3, 2010, //Philadelphia Inquirer// article, stating: “In my experience, two cases in eight years is not a lot.” Both Ruiz and Maloney seemed to be unaware of the other complaints that Department of State attorneys had reviewed since 2002, including the case of Semika Shaw, whose death was reported to the department by Gosnell’s insurance carrier, pursuant to the MCARE law.

<span style="font-family: 'Courier New',Courier,monospace;"> The Department of State turned over seven complaint files on Gosnell to the Grand Jury. (One was from 1990, and another from 1992; no file was produced for an eighth complaint – an allegation from 1983 that Gosnell had no malpractice insurance.) Our review of the files showed that some prosecutors were aware of all previous complaints against Gosnell. These files included printouts listing the file numbers for the earlier complaints.

<span style="font-family: 'Courier New',Courier,monospace;"> Clearly, Greenwald, who handled Semika Shaw’s case, also knew of Marcella Choung’s allegations – he was assigned to that case as well – though this did not stop him from closing the Shaw case without investigation. Other prosecutors, however, seem not to have even looked for prior complaints. Ruiz’s account of “prior history” includes only the complaint from 1992, for which Gosnell received a reprimand. Grubb’s file shows that, when he handled the 2006 complaint from Alice, he knew there was another open complaint at the time, but he chose to ignore it.

<span style="font-family: 'Courier New',Courier,monospace;"> The department’s prosecuting attorneys never put the pieces together about Gosnell because they did not bother to consider prior complaints. Had every subsequent prosecutor been aware of Marcella Choung’s complaint, perhaps at least one of them would have looked more carefully at the case in front of him and recognized that the injuries inflicted by Gosnell were not caused by temporary negligence. Had any prosecutors properly investigated, perhaps they would have understood the magnitude of Gosnell’s recklessness. When one prosecutor gets a complaint that the doctor has no insurance, and another prosecutor has been looking into a similar complaint for over two years, some form of coordination or collaboration should be required to ensure proper action is taken.

<span style="font-family: 'Courier New',Courier,monospace;"> The testimony of the one prosecutor who appeared before the Grand Jury revealed a lack of knowledge about certain aspects of state law and Department of State procedures that indicates a lack of training. For example, Ruiz said he was unaware that insurance companies had to report medical liability settlements to the department, even though Gosnell’s file contained just such a report relating to Semika Shaw. This is significant because it is an obvious way for state officials to check to make sure that doctors are reporting all of the lawsuits filed against them as required by MCARE. Had anyone cross-checked, it would have been discovered that Gosnell did not report Ms. Shaw’s lawsuit to the Department of State, or her death to the Department of Health.

<span style="font-family: 'Courier New',Courier,monospace;"> This lack of training is apparent in all of the departmental attorneys who did nothing to investigate the mayhem at Gosnell’s clinic.

<span style="font-family: 'Courier New',Courier,monospace;">The Department of State only pursued allegations aggressively when the case was very public, or when the complainant knew somebody.
<span style="font-family: 'Courier New',Courier,monospace;">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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> The Departments of Health and State do not work together to protect the public.
<span style="font-family: 'Courier New',Courier,monospace;">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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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 explain 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.

<span style="font-family: 'Courier New',Courier,monospace;">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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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 selfimposed lack of knowledge as an excuse for inaction. Proper supervision and accountability for performance, in addition to new procedures, clearly are required.

<span style="font-family: 'Courier New',Courier,monospace;">Patients and groups that were aware of Gosnell’s reckless practices found it hard to file complaints with the state.
<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> Women who had undergone abortions were generally not willing to send all of this information to Harrisburg. 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

==<span style="font-family: 'Courier New',Courier,monospace;"> 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. ==

<span style="font-family: 'Courier New',Courier,monospace;">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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.

<span style="font-family: 'Courier New',Courier,monospace;"> 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.