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Gosnell Grand Jury Excerpts: “Whatever its motivation, the Department of Health’s deliberate policy decision not to conduct regular inspections of abortion clinics did not serve the women of this Commonwealth. Nor did it protect late-term fetuses or viable babies born alive.”

by | Apr 17, 2013

By Dave Andrusko

Page1re-216x300As the fifth week of the murder trial of abortionist Kermit Gosnell reaches its midway point, we dig deeper into Section VI of the Grand Jury report which asks the question, “How Did This Go on So Long?” As you read these sections, the Grand Jury appears equal parts astonished by the indifference of health officials and angry. The response by one health official to the death of Karnamaya Mongar’s– “people die”—indicates perfectly the fierce resistance to monitoring Gosnell’s Women’s Medical Society.

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Since February 2010, Department of Health [DOH] officials have reinstituted regular inspections of abortion clinics – finding authority in the same statute they used earlier to justify not inspecting.

[Janice] Staloski [one of the evaluators of Gosnell’s abortion clinic in 1992] blamed the decision to abandon supposedly annual inspections of abortion clinics on DOH lawyers, who, she said, changed their legal opinions and advice to suit the policy preferences of different governors. Under Governor Robert Casey, she said, the department inspected abortion facilities annually. Yet, when Governor Tom Ridge came in, the attorneys interpreted the same regulations that had permitted annual inspections for years to no longer authorize those inspections. Then, only complaint driven inspections supposedly were authorized. Staloski said that DOH’s policy during

Governor Ridge’s administration was motivated by a desire not to be “putting a barrier up to women” seeking abortions. Brody confirmed some of what Staloski told the Grand Jury. He described a meeting of high-level government officials in 1999 at which a decision was made not to accept a recommendation to reinstitute regular inspections of abortion clinics. The reasoning, as Brody recalled, was: “there was a concern that if they did routine inspections, that they may find a lot of these facilities didn’t meet [the standards for getting patients out by stretcher or wheelchair in an emergency], and then there would be less abortion facilities, less access to women to have an abortion.”

[Department of Health Senior Counsel Kenneth] Brody testified that he did not consider the “access issue” a legal one. The Abortion Control Act, he told the Grand Jurors, charges DOH with protecting the health and safety of women having abortions and premature infants aborted alive. To carry out this responsibility, he said, DOH should regularly inspect the facilities. Nevertheless, the position of DOH remained the same after Edward Rendell became governor. Using the legally faulty excuse that the department lacked the authority to inspect abortion clinics, Staloski left them unmonitored, presumably with the knowledge and blessing of her bosses, Deputy Secretary Stacy Mitchell and a succession of Secretaries of Health. The department continued its do-nothing policy until 2010, when media attention surrounding the raid of the Gosnell clinic exposed the results of years of hands-off “oversight.”

Now, once again, the regulations, which have never been modified, apparently allow for regular inspections. This is, and always was, the correct position. The state legislature gave DOH the duty to enforce its regulations; the authority and power to do so are implicit in that duty. The department abandoned this responsibility without explanation, and without notice to the public or the legislature.

Whatever its motivation, DOH’s deliberate policy decision not to conduct regular inspections of abortion clinics did not serve the women of this Commonwealth. Nor did it protect late-term fetuses or viable babies born alive. The Grand Jury heard testimony from legitimate abortion providers and from abortion-rights advocates, and not one indicated that annual inspections would be unduly burdensome. The doctors we heard from, and the organizations that refer women to abortion providers, told us that the reputable providers comply with all of the state regulations and more. Annual inspections are not an issue with them. Many clinics in Pennsylvania are already inspected by NAF,whose standards are, in many ways, more protective of women’s safety than are the state’s regulations.

Without regular inspections, providers like Gosnell continue to operate; unlawful and dangerous third-trimester abortions go undetected; and many women, especially poor women, suffer. These are all consequences of DOH’s abdication of its responsibility. Moreover, even if Staloski was instructed not to conduct regular, annual inspections, that does not explain why she failed to order inspections when complaints were received. It is clear to us that she was made aware, numerous times, that serious incidents had occurred at Gosnell’s clinic. These incidents, which evidenced alarming as well as illegal long-standing patterns of behavior, warranted investigation. Yet, in all the years she worked at the department, Staloski never ordered even one inspection.

Not even Karnamaya Mongar’s death triggered an inspection or investigation.

On November 24, 2009, Gosnell sent a fax to the department, followed by a letter addressed to Staloski, notifying DOH that Karnamaya Mongar had died following an abortion at his clinic. (Gosnell’s letter inaccurately stated that the second day of her procedure was November 18.) Darlene Augustine, a registered nurse and health quality administrator in the department’s Division of Home Health, received the fax.

Augustine, who supervises surveyors who respond to and investigate complaints at health care facilities, testified that she immediately notified her boss, Cynthia Boyne. (Boyne had become director of DOH’s Division of Home Health in 2007, when Staloski was promoted to head the Bureau of Community Licensure and Certification.) Augustine said that she told Boyne on November 25 that DOH should immediately go out to the clinic and initiate an investigation. Augustine acknowledged that she generally had the authority to send surveyors out to investigate – and she often did so within an hour of receiving a notice of a serious event such as a death. She testified, however, that she felt she needed Director Boyne’s approval because Gosnell’s notice involved an abortion clinic.

Boyne did not give her approval. Instead, she went to the bureau director, Staloski, to discuss the matter. Augustine explained that abortion clinics were treated differently from other medical facilities because Staloski had for years overseen the department’s handling of complaints and inspections – or lack of inspections – relating to abortion clinics. Staloski, according to Augustine, was “the ultimate decision-maker” with respect to whether DOH would conduct an inspection or investigation. Augustine testified that neither Boyne nor Staloski ever gave her approval to conduct the investigation that she thought was appropriate.

Boyne blamed Staloski. She said that her boss told her that DOH did not have the authority to investigate Mrs. Mongar’s death. Staloski apparently reached this decision on her own, without ever consulting Brody, the legal counsel. Staloski, according to Boyne, was only interested in making sure that Gosnell filed an on-line report in accordance with a 2002 law, the Medical Care Availability and Reduction of Error (MCARE) Act. That law requires health care facilities to report serious events, including deaths to DOH. 40 P.S. §313.§313.

Staloski’s plan, Boyne said, was to then charge Gosnell with failing to file the report in a timely and proper manner. This is absurd, and Boyne should not have accepted such a ridiculous idea. Gosnell had reported Mrs. Mongar’s death to DOH on November 24, 2009. While this was three or four days late, and the notification came by fax and letter rather than computer, it is preposterous to think that Staloski, who had ignored two deaths and other serious injuries at the clinic, would take action against a doctor for filing a report three days late.

Staloski was absolutely wrong about DOH’s lack of authority to investigate Mrs. Mongar’s death. Appallingly, the chief counsel for the department of health, Christine Dutton, defended Staloski’s inaction following Mrs. Mongar’s death. Dutton testified that she had reviewed the emails and documents showing that Staloski and her staff were communicating with Gosnell’s office to get him to file the MCARE form. Based on these very minimal efforts, Dutton insisted: “we were responsive.” Pushed as to whether the death of a woman following an abortion should have prompted more action – perhaps an investigation or a report to law enforcement – Dutton argued there was no reason to think the death was suspicious. “People die,” she said.

Not only was a probe into Mrs. Mongar’s death authorized and appropriate under the Abortion Control Act, it was required under the MCARE law. 40 P.S. §306. Yet DOH did not investigate. Staloski told the Grand Jury that she remembered reviewing with Boyne the letter in which Gosnell notified DOH of Mrs. Mongar’s death. Staloski said that it was really Boyne’s responsibility to order an investigation, but acknowledged that she, as the bureau director, also failed to do so. Instead of conducting an investigation, Staloski and Boyne concerned themselves with badgering Gosnell to re-notify them of Mrs. Mongar’s death.

Bureau Director Staloski, in fact, readily acknowledged many deficiencies in DOH’s, and her own, oversight of abortion facilities. But her dismissive demeanor indicated to us that she did not really understand – or care about – the devastating impact that the department’s neglect had had on the women whom Gosnell treated in his filthy, dangerous clinic.Staloski excused the DOH practices that enabled Gosnell to operate in the manner that killed Ms. Shaw, Mrs. Mongar, and untold numbers of babies. She simply said the abortion regulations – written by DOH – do not require DOH to inspect abortion clinics.

When DOH inspectors finally entered Gosnell’s clinic in February 2010, not at Staloski’s direction but at the urging of law enforcement, Staloski seemed more annoyed than appalled or embarrassed. On the morning after the raid, she received a copy of an email that Boyne wrote to Brody the night of the raid. Boyne reported to the department’s senior counsel that, at 12:45 a.m., she had told the Department of Health staff members at the clinic to “wrap it up and secure lodging in the interest of their safety.” Boyne told Brody that the “staff walked into a very difficult setup.” She complained that a representative of the District Attorney’s Office was “badgering” DOH staff to shut down the facility immediately. Boyne was seeking Brody’s legal guidance.

Staloski’s response to Boyne’s email was: “I’d say we were used.” Boyne’s reply: “Bingo.” Staloksi, the woman most directly responsible for the department’s oversight of abortion facilities, told the Grand Jury: “I haven’t been in any facilities in probably – in an abortion facility in many, many years.”

The citizens of Pennsylvania deserve far better from those charged with protecting public health and safety.

Categories: Gosnell