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Had “DOH ever intended to
exercise its responsibility to protect the health and safety of women seeking abortions in Pennsylvania”? Editor’s note. Abortionist Kermit Gosnell is charged with eight counts of murder. “How Did This Go On So Long?” is a pivotal sections in the Grand Jury’s 261-page report. Today’s except illustrates the Grand Jury’s frustration at not being able to determine who decided that abortion clinics did not require meaningful oversight.
No one from DOH [Department of Health] was able to tell us who decided to exclude abortion clinics from meaningful oversight that would protect patient safety, or why such a decision was made. Nor did the jurors get a satisfactory answer as to why abortion clinics are under DOH’s Division of Home Health (which oversees agencies that provide care in people’s houses), rather than the more appropriate Division of Acute and Ambulatory Care. Or why, on DOH’s website, even on the page that lists the types of facilities overseen by the Division of Home Health, abortion clinics are not even mentioned. The website states: The Division of Home Health establishes and enforces quality care and safety standards for Health Care Facilities in Pennsylvania. We conduct state licensure, Medicare certification, and complaint investigations for the following health care providers: Birth Centers
Comprehensive Outpatient Rehabilitation Facilities (CORFs) In addition to demonstrating the low priority that DOH has assigned to patient care in abortion clinics, the invisibility of abortion facilities on the website makes it next to impossible for clients or others who want to make complaints to do so. The website publishes phone numbers to call for various types of complaints: the Division of Acute and Ambulatory Care for ambulatory surgical facilities, the Division of Home Health’s “hotline” for home health agencies, hospices, and End State Renal Disease facilities. There is no mention, however, that DOH even oversees abortion facilities, or that it accepts complaints about them. In light of this, the policy that DOH would inspect facilities only in response to complaints (leaving aside that even this policy was not followed) goes beyond bad management. It appears to reflect purposeful neglect. It raises the question – as does the failure to act on the serious complaints against Gosnell – whether DOH ever intended to exercise its responsibility to protect the health and safety of women seeking abortions in Pennsylvania. No matter why or when or by whom the decision not to license or monitor abortion facilities was made, the practice has continued for roughly two decades and through several administrations. We have no idea how many facilities like Gosnell’s have remained out of sight, out of mind of DOH for decades – since they were first “approved.” The only thing DOH seems to have consistently concerned itself with during this time is collecting reports that the Abortion Control Act requires abortion providers to file with the department and the department, in turn, to report to the Legislature – forms for every abortion performed and quarterly reports stating how many first, second, and third trimester abortions the facility performed. This responsibility is clearly meaningless, since providers’ information is not verified. Gosnell simply made up the information, and DOH never audited or checked the reports. As long as the department received somepaperwork, that apparently was sufficient. The forms that Gosnell filed between 2000 and 2010 – the ones DOH then relied on to compile its reports to the Legislature – recorded only one second-trimester abortion and no complications. His false entries, alone, make DOH’s reports to the Legislature worthless. Instead of using its manpower to inspect facilities and protect women’s health, DOH has devoted its resources to collecting and publishing inaccurate and meaningless data – data that mislead the legislature and the public. State Department of Health inspectors refused to share information with law enforcement. Darlene Augustine testified that she was instructed by senior attorneys for DOH, Kenneth Brody and James Steele, that she should not reveal anything about Karnamaya Mongar’s death to law enforcement when she accompanied them on the raid in February2010. The lawyers told her that if she were asked about it, she should refer the agents to legal counsel. The reason the attorneys gave for their instruction was that informationreceived by the department pursuant to the MCARE law is strictly confidential. The MCARE law does provide some degree of confidentiality for materials obtained by DOH solely for the purpose of complying with MCARE’s reporting requirement: § 1303.311. Confidentiality and compliance (a) PREPARED MATERIALS.-- Any documents, materials or information solely prepared or created for the purpose of compliance with section 310(b) or of reporting under section 304(a)(5) or (b), 306(a)(2) or (3), 307(b)(3), 308(a), 309(4), 310(b)(5) or 313 which arise out of matters reviewed by the patient safety committee pursuant to section 310(b) or the governing board of a medical facility pursuant to section 310(b) are confidential and shall not be discoverable or admissible as evidence in any civil or administrative action or proceeding. Any documents, materials, records or information that would otherwise be available from original sources shall not be construed as immune from discovery or use in any civil or administrative action or proceeding merely because they were presented to the patient safety committee or governing board of a medical facility. The act does not, however, preclude disclosures of information necessary for criminal prosecutions. There are several reasons that this provision should not have prevented Darlene Augustine from sharing information about Karnamaya Mongar’s death with law enforcement. First, two laws required that Gosnell inform DOH of Mongar’s death – not only the MCARE Act, but also the Abortion Control Act. Second, according to DOH witnesses, Gosnell had not complied properly with the MCARE reporting requirement when the raid took place. Third, the clear purpose of this provision is to preclude the use of self-reported materials against the reporter in malpractice cases.Nothing in the language prohibits sharing information on a death with law enforcement, even if it had come in solely as a report under MCARE. Had DOH investigated Mrs. Mongar’s death, as it should have – and had it discovered, as it would have, that an unlicensed employee had administered the fatal anesthesia – it would have been incumbent on the department to report these criminal circumstances. Someone should have shared what DOH had learned about Mrs. Mongar’s death with law enforcement agents conducting a search of the facility. There could be many similar situations in which DOH would learn information that could be crucial to law enforcement – where crimes might go undetected without DOH’s cooperation. To the extent DOH believes that the MCARE Act precludes sharing information in criminal investigations, that situation needs to be addressed. Tomorrow: PENNSYLVANIA’S DEPARTMENT OF STATE NEGLECTED ITS DUTY TO DISCIPLINE A DOCTOR ENGAGED IN UNPROFESSIONAL CONDUCT. |
Assuring
safety at abortion clinics has been a low priority for
Pennsylvania’s Department of Health for decades.