Mark Greenwald, lawyer at the Pennsylvania Dept of State, responsible for deciding whether or not to prosecute Kermit Gosnell in the death of Semika Shaw, was also assigned to the case of Marcella Choung's allegations, yet did not pursue them. He allowed Gosnell to ply his trade for an additional decade. Gosnell's abuses might have gone on indefinitely had not a drug raid, entirely by chance, uncovered for public view what the Department of State had known for ten years and had pointedly failed to take action on.
What follows is verbatim from the Grand Jury Report:
Lawyers at the Pennsylvania Department of State behaved in the same fashion [as lawyers at the DOH]. Attorneys Mark Greenwald, Charles Hartwell, David Grubb, Andrew Kramer, William Newport, Juan Ruiz, and Kerry Maloney were confronted with a growing pile of disquieting facts about Gosnell, including a detailed, inside account from a former employee, and a 22-year-old dead woman. Every time, though, they managed to dismiss the evidence as immaterial. Every time, that is, until the facts hit the fan.
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.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.”
RECOMMENDATION: Z-02, Prosecution not Warranted
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.)
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.
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.
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.
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.
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.
In spite of this clear dereliction of duty by state officials -- dereliction that the Grand Jury learned was motivated by a pro-choice stand toward abortion "access" -- the abortion lobby places the blame not on the prochoice Governor who ordered a halt to abortion clinic inspections and not on prochoice officials that turned a blind eye in the name of "access," the abortion lobby and many in the mainstream media place blame for Gosnell's existence on the very prolifers who had given these officials the authority to close Gosnell's clinic at any time they discovered what was going on there.