(Cross-posted from The COFAR Blog)
An investigative report by the Department of Public Health appears to have concluded that Lowell General Hospital was not at fault in the case of a developmentally disabled man who died after having been turned away twice by the hospital in 2012 without any significant treatment.
I’m using the word “appears” to describe the report’s finding because virtually all of the text was redacted in the version of the document provided to us last week by the DPH. Even the date of the report could not be determined from the document. We are asking the state Public Records Division to order the DPH to produce a more comprehensible version of the report.
As I previously reported, the 51-year-old man, whose name is being withheld, died in February 2012 after having been taken twice in two days to the Lowell hospital and sent away each time.
The man had been having difficulty breathing and was sweating profusely when he was taken to the hospital on both February 6 and 7. On the morning of February 7, he was sent back by the hospital to the group home in which he was living, with a prescription. He died, apparently en route to the hospital, after staff in his group home called an ambulance for the third time on the afternoon of February 7.
The cause of death was listed on the death certificate on file in the City of Lowell as acute respiratory failure and aspiration pneumonia, which can indicate choking. A death report form filed with the Disabled Persons Protection Commission stated that the man died after experiencing cardiac arrest.
The DPPC referred the case of the man’s death to the DPH, apparently because an allegation about improper care in the case involved the hospital and not the man’s group home, which is operated by the Department of Developmental Services.
It seems surprising that state investigators would find no problems with the policies or procedures of a hospital that apparently failed to provide any significant treatment to someone who subsequently died due either to choking or a heart attack. Common sense would imply that something went wrong somewhere in the hospital’s procedures between the time the man first arrived at the hospital exhibiting signs of physical distress and his death the next day. But if the state did find something wrong, it’s not evident in the version of the report we received.
In February of this year, we requested a copy of the DPH’s report on the case, but the Department denied our request, citing the deceased man’s privacy rights. We appealed to the Public Records Division, which last month upheld our appeal, ordering the DPH to produce the report or explain why it was exempt from the Public Records Law.
As we have previously noted here, our interest lies in whether the DPH examined the adequacy of Lowell General Hospital’s policies and procedures for treating persons with developmental disabilities. This case suggests to us that there may have been inadequate training of hospital health care personnel in the treatment of developmentally disabled persons. The lack of such training has become an issue of concern to advocates for the disabled and to many policymakers.
Given the narrow scope of our interest, we indicated prior to the Public Records Supervisor’s ruling that we were open to accepting a redacted version of the DPH report that did not reveal the man’s name or medical information about him that might violate his privacy. We said, however, that we would not accept a report that was redacted to such an extent that we were unable to substantively discern either its findings or the support for its findings.
Unfortunately, that is the case with the document we have received from the DPH. The redactions in this report appear to go far beyond what might be construed to be medical files or information. It is impossible to tell from the document whether the Department investigated the hospital’s policies or procedures for treating individuals with developmental disabilities or whether the DPH examined the training of staff in that regard. It is also impossible to tell whether the report contained any recommendations regarding hospital policies and procedures.
(Again, feel free to review the DPH report yourself at this link.)
The only statements in the DPH report that were not redacted and that appear to be relevant to the investigation of the case are four apparent findings in what is labeled the synopsis on the first page. But even those findings have been at least partially whited out so that they cannot be fully understood. Those apparent findings are that:
1. There was an allegation that hospital emergency staff were “ill-equipped” to deal with something. We don’t know what that something was because the language is redacted. We assume it was the treatment of the developmentally disabled man. However, due to the redaction, it was impossible to determine that with any certainty.
2. Based on a review of medical records and interviews with staff, “the allegation was determined not to be valid,” the report stated. There is no text in the document providing any support or reasoning for the finding. The finding indicated that in addition to medical records, three other things were reviewed as well, but the list of those three things was redacted.
3. Based on a review of something else that was similarly redacted, “appropriate care was rendered.” Again, no further support or information was given for this finding.
4. The hospital’s discharge plans “were appropriate and communicated to”…redacted.
That is the extent of the readable text in the report that appears to be relevant to the investigation. The full report is apparently more than five pages long. However, after a heading labeled “Survey findings” on page 2, the report is entirely blank with the exception of one partial sentence on page 5 that states: “Review of the Medical Screening Examination dated 2/7/12 indicated”… The sentence breaks off at that point and there is nothing further in the document. February 7, 2012 was the date of the disabled man’s death.
In his April 29, 2015 order to the DPH to turn over the report to us, Public Records Supervisor Shawn Williams wrote that the Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. In addition, Williams’ order noted that it is the burden of the department that possesses the requested records to demonstrate the application of an exemption in order to withhold any of those documents.
In our view, the DPH has failed to comply with the letter or spirit of the Public Records Law, and has not met its burden of demonstrating that the wholesale redactions of the report were either necessary or complied with the requirements of the records law exemption.
We sent a letter last week to Williams and to another attorney in the Division who handled our case to let them know of the nature of the document the DPH produced. We’re confident Williams will agree with us that the DPH needs to do better that what they have done in providing the requested report.
I can think of two reasons to redact – the first is national security which isn’t relevant here, and the second is personally identifiable information, which should only require blocking a phrase here and there.
There are some other possible reasons for such heavy redactions, and none of them would reflect well on the Department of Public Health, in our view. One possible reason is that they are trying to protect the hospital from embarrassing public information about their care and conditions. Another is that the DPH didn’t do a very good or thorough investigation and they want to hide that outcome. Another is the general instinct of secrecy that many bureaucratic organizations seem to have.
I am so tired of “privacy” being used as an excuse not to reveal or to cover up information regarding the treatment of the developmentally disabled. It’s sickening. The DPH response in this case might as well be a blank form. It contains no substantive information and makes a farce of the Public Records Law. Certainly, there are privacy concerns when it comes to medical records. But when “privacy” is used time after time after time as a reason for not divulging information regarding what has happened to a developmentally disabled receiving state-related care or services it is Orwellian.
Developmentally disabled people have the same privacy rights as everyone else. Under the Fair Information Practices Act, the state should not release the report. If COFAR wants the full report, there is an easy way to get it. The patient’s estate can request and receive a full copy, and give it to you. If the patient’s family doesn’t want to release it, that’s their right.
…either in fact or available.
Of course, if he did not then the state IS the next of kin.
This looks to me like a canonical example of the venerable Vogon strategy of making you spend more money on legal fees in hopes of prevailing in a case where the evidence against them is bleak for their side.
I think this has little or nothing to do with FAIP restrictions or the concerns of the family and everything to do with evading a nasty outcome if the facts are known. They know that COFAR will ultimately be able to receive this information — they also know that they have the ability to make that outcome expensive enough to perhaps dissuade you.
It is a tactic all too familiar to any divorced father who has tried to assert his parental rights in a Massachusetts Probate Court. The reality that a Separation Agreement, state law, and the facts of a case compellingly support an intervention requested by the father falls by the wayside when the father lacks the resources needed to enforce those provisions. Each and every baby-step requires thousands of dollars in legal fees, weeks of waiting for a date, and hours of waiting in the courtroom (with the legal clock running for all attorneys involved). A further obstacle is the need to overcome the Court’s bias that the father is “harassing” the mother by asking the Court to enforce the provisions of an already-existing court order.
If the case is worth pursuing, and from what you’ve written it may well be, then COFAR must be prepared for a long and grueling battle. I suspect that daves is mistaken about how “easy” the disclosure might be with the cooperation of the family. Christopher is correct in his comment upthread that blocking a phrase here and there can provide the needed privacy for the patient and/or patient’s family.
This issue is about the hospital, not the patient.
it’s not necessarily easy to obtain an investigative report through the patient’s guardian or estate. First, we would have to locate the patient’s guardian. We don’t actually know who that is. We believe it may be someone who lives out of state. Secondly, the guardian would have to agree to release it.
Also, daves misses our point that we aren’t interested in invading anyone’s privacy. That’s why we have said we would accept a report that redacted identifying information.