By Marie McCullough
Inquirer Staff Writer
The arrest of West Philadelphia abortion doctor Kermit Gosnell on charges of murdering a patient and seven newborn infants has thrown an unusual spotlight on Pennsylvania regulators who, a Philadelphia grand jury concluded, "should have shut him down long ago."
But Pennsylvania's system of oversight - or lack of it, in the grand jury's view - may not be unusual.
For five months last year, New Jersey regulators received complaints that abortion doctor Steven Brigham, 54, was running a secret, cash-only, late-term abortion business using a risky interstate scheme - one for which he was disciplined in the 1990s.
Just as in the Gosnell case, regulators took no public action against Brigham - until a police raid forced them to.
New Jersey officials declined to comment for this article, as did the law firm representing Brigham.
Prosecutors, public health experts, and others say these cases illustrate a host of problems, including a feeble complaint system, spotty clinic inspections, poor communication among oversight agencies - and the reluctance of doctors to punish their own.
"In general, the discipline of doctors in this country is a disaster," said physician Sidney Wolfe, director of health research for Public Citizen, a consumer-advocacy group.
In Public Citizen's annual look at rates of serious disciplinary actions by state medical boards, New Jersey and Pennsylvania rank among the least aggressive, having acted against fewer than three in every 1,000 physicians between 2007 and 2009.
Beyond patient safety, abortion regulation is tangled in moral, political, and commercial issues.
Consider that Brigham's latest travails - license suspension in New Jersey and a criminal probe in Maryland - have not halted his abortion enterprise, called American Women's Services. The toll-free phone lines are taking calls for its clinics in New Jersey, Pennsylvania, Maryland, Virginia - and a recent addition, Pensacola, Fla.
"Businesses aren't regulated that well, but they should be, especially businesses that affect the public health and well-being," said Leonard Glantz, a health law professor at Boston University.
Abortion goes from being brief and low-risk for the mother during the first three months, when the fetus is tiny, to being increasingly dangerous as the fetus grows.
At about 15 weeks - long before the full-term point of 38 weeks - abortion is a protracted process. The first day, the fetal heart is given a lethal injection, and the woman's cervix is slowly dilated using absorbent rods. The next day, the woman receives labor-inducing drugs, then undergoes surgery to remove the fetus, intact or in pieces.
Recognizing the incremental complexity, the New Jersey Department of Health and Senior Services has a two-tiered system. Abortions through 14 weeks can be done in the equivalent of a doctor's office, no license necessary. Beyond 14 weeks, the facility must be licensed as an outpatient surgical center, complete with an ambulance service, biennial inspections, and a highly trained doctor.
None of Brigham's six New Jersey clinics is licensed to do surgery, so, rather than lose business, he evaded the rules, prosecutors say. He initiated late-term abortions in Voorhees; the next day, he led car caravans of patients, in labor, to Elkton, Md., for surgery.
In Pennsylvania, the jury found, outpatient-surgery centers are covered by 50 pages of safety rules, including regular inspections. However, regulators have chosen to interpret the law as not applying to abortion facilities.
Regulators, the jury report says, "have tied their own hands and now complain that they are powerless."
A year ago, after the raid that revealed awful conditions at Gosnell's clinic, Gov. Ed Rendell ordered a resumption of annual inspections, which had not been done for 15 years. Of the state's 20 freestanding clinics, 14 have been ordered to fix problems, none egregious.
Pennsylvania - like 40 other states, but not New Jersey - outlaws abortion after 24 weeks, the point when the fetus usually becomes "viable," able to survive outside the womb. The U.S. Supreme Court ruled that abortion of a viable fetus may be banned unless it is necessary to save the woman's life or health.
Understandably, there is confusion about what is and isn't legal. Gosnell's patients testified that they did not realize their post-viability abortions were prohibited.
They also testified that because they were anesthetized, they didn't know he delivered their fetuses alive, then killed them by severing their spinal cords with scissors.
Why this gruesome deviation from the standard practice of giving the fetus a lethal injection in the womb?
Gosnell's employees said that he tried giving injections, but that his shots missed the target, so he gave up.
Relying on complaints
Regulators say that to protect the public, they rely on complaints from patients, employees, even reporters.
"We're all pretty much complaint-driven" in the United States, said William L. Harp, executive director of the Virginia Board of Medicine. "When a complaint comes in, then we have ability to investigate."
In Brigham's case, just as in Gosnell's, complaints were not enough.
Elizabeth Barnes, director of Cherry Hill Women's Center, a South Jersey abortion clinic, said she wrote to New Jersey's medical licensing board in June 2009 detailing her suspicions that Brigham was starting third-trimester abortions in Voorhees and finishing them in a clandestine clinic, probably in Maryland.
In response, Barnes said, an investigator talked to her, off and on, for months. Yet no official action was taken against Brigham.
Barnes' suspicions should have rung bells. In the 1990s, Brigham did late-term abortions that straddled Voorhees and New York City.
In 1994, New York authorities took his license in that state for botching two abortions, one begun in Voorhees. They called him "undertrained," with "submarginal abilities" and "not the slightest recognition of his deficiencies." New Jersey prosecuted Brigham for those same cases, plus four more. But Brigham's appeals ultimately reached an administrative judge who found him "sincere" and "credible," and reinstated his license.
Brigham's latest contrivance became news in August after a New Jersey woman, 18, went to Elkton police.
She told them of her unexpected Aug. 13 odyssey from Voorhees to Elkton, of an abortion that left her so critically injured that she had to be airlifted to a Baltimore hospital for emergency surgery.
On Aug. 17, police raided the Elkton clinic - a storefront operation with no sign, that had opened about a year earlier - but could not find her medical records. They did, however, find 35 late-term fetal bodies and parts, none with records.
New Jersey subsequently suspended Brigham's license pending a revocation hearing in April. In Maryland, where he has never been licensed, authorities say a criminal investigation into possible felony charges is ongoing.
In most states, a doctor who is barred from performing abortions can still have an abortion business.
Brigham is an example. Although Elkton is closed, three American Women's Services clinics are open in Maryland. So are six in New Jersey, two in Virginia (where he has never had a license), and two in Pennsylvania.
People on both sides of the abortion debate say this shows the need for better interdepartmental and interstate communication, as well as ways to flag dubious corporate practices.
Jennifer Boulanger, executive director of the Allentown Women's Center, who has helped patients and others file complaints about care at American Women's Services clinics, said, "If a person owns lots of corporations at the same address for the same business, that should be a red flag for possible deceptive practices that warrant further investigation."
Corporate records connect Brigham to dozens of entities, including the Caring Corp. and the Peaceful Corp. Many use the Voorhees address, 1 Alpha Ave.
Last March, a new company that uses the Voorhees mailing address opened an abortion clinic in Pensacola, Fla., records show. The owner of the building is another new company that lists Brigham's wife, Krishni Dethabrew, as an authorized representative.
Florida revoked Brigham's license in 1995 after learning of New York's action.
"There is nothing in Florida law that would prevent Dr. Brigham from having part ownership in these entities," e-mailed Shelisha Durden, spokeswoman for the agency that oversees health facilities. "Unless there are specific allegations (such as practicing medicine in Florida without a license), there is nothing for the agency to investigate."
The Pennsylvania Health Department tried to get tough after repeatedly sanctioning Brigham for employing unlicensed caregivers.
In July, the department ordered him not to have an "equity interest" in abortion clinics or to "directly or indirectly" register any in the state. (He is appealing the order.)
But then the department proceeded to approve the new owner of his Allentown and Pittsburgh facilities: a new company headed by his mother, Judith Fitch, 71, of Toledo, Ohio. She hung up twice when called for comment.
Does the family tie defy the order?
Spokeswoman Holli Senior checked with agency lawyers, then e-mailed: "The department's decision does not apply" to Fitch's company.