Last week a Grand Jury in Philadelphia County returned its report on Kermit Gosnell, M.D., recommending he, and several of his employees, be charged criminally with multiple counts of murder (including murdering an adult patient through excessive anesthesia and obstructing emergency treatment), infanticide, violations of the Controlled Substances Act, obstruction of justice, perjury, illegal late-term abortions, violations of the Abortion Control Act, abuse of corpse, theft by deception, conspiracy, corrupt organization, and corruption of minors.
The arrest and indictment have touched off old debates on the politics of abortion, debates I do not intend to enter here. But I have written about several times in the past about how the organizations, principles, and routines upon which people build their working lives can easily lose their way. Just in the past month or two, I’ve written about how institutional failures can lead to police misconduct, violations of legal ethics, defamatory publications of textbooks, corporate fraud and retaliation against whistleblowers, legal malpractice, even foolish defenses in product liability and medical malpractice trials.
Institutional failures like those identified by the Grand Jury:
Pennsylvania is not a third-world country. There were several oversight agencies that stumbled upon and should have shut down Kermit Gosnell long ago. But none of them did, not even after Karnamaya Mongar’s death. In the end, Gosnell was only caught by accident, when police raided his offices to seize evidence of his illegal prescription selling. Once law enforcement agents went in, they couldn’t help noticing the disgusting conditions, the dazed patients, the discarded fetuses. That is why the complete regulatory collapse that occurred here is so inexcusable. It should have taken only one look.
The first line of defense was the Pennsylvania Department of Health. The department’s job is to audit hospitals and outpatient medical facilities, like Gosnell’s, to make sure that they follow the rules and provide safe care. The department had contact with the Women’s Medical Society dating back to 1979, when it first issued approval to open an abortion clinic. It did not conduct another site review until 1989, ten years later. Numerous violations were already apparent, but Gosnell got a pass when he promised to fix them. Site reviews in 1992 and 1993 also noted various violations, but again failed to ensure they were corrected.
The references to the Pennsylvania Department of Health and outpatient medical facilities sting. As the Grand Jury notes:
The two attorneys closest to the issue – Senior Counsel Kenneth Brody, who advises the Division of Home Health, which currently oversees abortion clinics; and Senior Counsel James Steele, who advises the division that oversees ambulatory surgical facilities – both testified that they believe that abortion clinics such as Gosnell’s fit within the law’s definition of an ambulatory surgical facility. Their boss, Chief Counsel Christine Dutton, refused to acknowledge that the ASF definition would cover abortion clinics, but could not explain why it did not. She said she “would have to research that to determine if that were the case.”
Dutton, however, before becoming chief counsel, was assigned to advise the DOH division that licenses ambulatory surgical facilities. As such, she had to be very familiar with what constitutes an ambulatory surgical facility. In fact, she was senior counsel to the division when DOH was dealing with the aftermath of the death, in 2001, of a 19- year-old girl following liposuction performed in a plastic surgeon’s office. When the girl’s parents complained to DOH, an immediate investigation revealed that the office of the surgeon, Dr. Richard Glunk, should have been licensed as an ASF, but was not. As a result of the Glunk case, DOH initiated a campaign to encourage compliance with ASF licensure requirements. Chief Counsel Dutton would have been in the middle of that effort in 2002 when she was senior counsel. Yet she testified that she never considered treating abortion clinics – facilities where, according to the abortion regulations, “ambulatory gynecological surgery” is performed – as ambulatory surgical facilities.
That’s the same medical malpractice case that Slade McLaughlin and I tried to a $20 million verdict, a verdict affirmed on appeal three months ago.
Nearly ten years after those events, which revealed systematic weaknesses in Pennsylvania’s enforcement of its health care facilities laws, the law as written apparently wasn’t being applied or enforced to Gosnell. There’s no reason for that; as reputable abortion clinic providers testified before the Grand Jury, they already meet or exceed the ASF standards, and have no problem submitting to the same requirements as ASFs.
We don’t need new laws there, we just need to enforce the laws we have.
But it’s not just one agency at fault:
Another agency with authority in the health field, the Pennsylvania Department of State, could have stopped Gosnell single-handedly. While the Department of Health regulates facilities, the Department of State, through its Board of Medicine, licenses and oversees individual physicians. Like their colleagues at Health, however, Department of State officials were repeatedly confronted with evidence about Gosnell, and repeatedly chose to do nothing.
Indeed, in many ways State had more damning information than anyone else. Almost a decade ago, a former employee of Gosnell presented the Board of Medicine with a complaint that laid out the whole scope of his operation: the unclean, unsterile conditions; the unlicensed workers; the unsupervised sedation; the underage abortion patients; even the over-prescribing of pain pills with high resale value on the street. The department assigned an investigator, whose investigation consisted primarily of an offsite interview with Gosnell. The investigator never inspected the facility, questioned other employees, or reviewed any records. Department attorneys chose to accept this incomplete investigation, and dismissed the complaint as unconfirmed.
Shortly thereafter the department received an even more disturbing report – about a woman, years before Karnamaya Mongar, who died of sepsis after Gosnell perforated her uterus. The woman was 22 years old. A civil suit against Gosnell was settled for almost a million dollars, and the insurance company forwarded the information to the department. That report should have been all the confirmation needed for the complaint from the former employee that was already in the department’s possession. Instead, the department attorneys dismissed this complaint too. They concluded that death was just an “inherent” risk, not something that should jeopardize a doctor’s medical license.
The same thing happened at least twice more: the department received complaints about lawsuits against Gosnell, but dismissed them as meaningless. A department attorney said there was no “pattern of conduct.” He never bothered to check a national litigation database, which would have shown that Gosnell had paid out damages to at least five different women whose internal organs he had punctured during abortions. Apparently, the missing piece in the “pattern” was press coverage. Once that began, after the raid, the department attorney quickly managed to secure a license suspension against Gosnell.
It’s common knowledge among attorneys that the Board of Medicine rarely, if ever, revokes doctors’ licenses for anything involving patient safety. Maybe if a doctor uses drugs or steals money, their license will be revoked, but doctors in Pennsylvania can just go on perforating internal organs in filthy "operating rooms" filled with plants and cats, with teenagers administering anesthesia, and nothing will ever happen to their license.
Upon learning that through tragic experience — either by suffering at the hands of an incompetent physician with numerous complaints against them, or by trying, and failing, to get the Board of Medicine to take action against physicians who have a pattern of malpractice — many of my medical malpractice clients ask, "how can those terrible doctors get insurance?"
Simple: the Commonwealth of Pennsylvania subsidizes their insurance. Your tax dollars at work. Half of the state-subsidized medical practice insurance goes out to pay claims against fewer than 2% of all doctors, but they are allowed to just keep coming back, year after year, using their subsidized insurance to confidentially pay off lawsuits brought by their victims.
Just like in those institutional failures I described another post, I do not think anyone at the Pennsylvania Department of Health, or Department of State, or at Philadelphia’s Health Department, or the Hospital of the University of Pennsylvania, or Penn Presbyterian Medical Center — all of which are named by the Grand Jury — knew or suspected that Gosnell was routinely butchering women with unsterilized equipment so that he could enjoy “nearly $1.8 million a year – almost all of it in cash,” as the Grand Jury estimated.
Somewhere along the way, the whole system — including its many independent parts — all failed. But we don’t need more laws; no law would have stopped Gosnell. We need enforcement of the laws we already have.