Muchnick Exchange With Maryland Health Department on Continuing Questions in Louis Lowenthal Drowning at Meadowbrook Aquatic Center

DR. CLIFFORD S. MITCHELL, MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE, ENVIRONMENTAL HEALTH BUREAU DIRECTOR, TO CONCUSSION INC.’S IRVIN MUCHNICK

Dear Mr. Muchnick:

Thank you for your email message of April 7, 2013. In response to your inquiries, DHMH and the Baltimore City Health Department respond as follows:

1. Will either of your agencies consider releasing an unredacted, or less-redacted, version of Meadowbrook Aquatic Center’s incident report in last October’s drowning death of Louis Lowenthal? I am not persuaded by the explanation I was given for many, or perhaps all, of the redactions, and I contemplate pursuing an appeal under public information law if the current level of release stands and the reasons for redactions are not more compellingly justified.

DHMH is legally prohibited from providing what you are requesting because you are not the subject of any of the records you seek. For the purpose of Maryland’s statutory schemes governing the disclosure of medical records and personal information in the setting of public records, the subject of the record is called the person in interest.

You are not a person in interest of any of the records at issue and you have not provided DHMH authorizations to release the records signed by the persons in interest. Consequently, DHMH may produce to you only the information previously provided.

The first section of redacted information qualifies as a medical record under Md. Health-General Code Ann. § 4-301(i)(2)(iii)(1). The redacted portion of the record is privileged and confidential under Maryland’s medical records law, requiring DHMH’s nondisclosure under Md. State Government Code Ann. § 10-615. The second section of redacted information is unrelated information resulting from recycling used paper in the fax machine.

DHMH is prohibited by Md. State Government Code Ann. §§ 10-624 and 10-626 from disclosing the names and other notations in that section, and the personal identifying information contained in the third redacted section, the driver’s license.

2. Any suggestion that health agencies, whether state or local, are not empowered to follow up with Meadowbrook in the matter of a death incident report is nonsense. My crude research shows that “an inadequately protected swimming pool” is the first in a list of 14 examples of a public health “nuisance” under § 20-301 of the Maryland code. Though it is true that the bulk of the following statutory language deals with sanitation, there is no question that the Secretary of Health has the authority, in appropriate circumstances, to inspect, investigate, serve written notice on the perpetrator of a nuisance, or even file a complaint with the county circuit court to seek fines or other relief. The state and local health authorities have chosen not to do so in the Lowenthal/Meadowbrook matter. On what basis was that choice made?

As I previously explained, this matter was within the jurisdiction of the Baltimore City Health Department (BCHD), to whom the pool regulatory program has been delegated, including investigatory duties relating to incidents like this incident. In a case of this type, the environmental health program of the Baltimore City Health Department as the delegated authority would investigate licensing, structural and functional conditions as appropriate.

Related to policy issues, unexpected deaths in children are referred to a Child Fatality Review, which makes recommendations for changes in policy and legislation based on tragedies such as this. Although the discussions, deliberations, and details of individual child fatality cases are confidential, the Child Fatality Review process culminates in an annual report, which provides recommendations to the Governor, General Assembly, and the public on changes to law, policy, and practice to prevent child death. You can find information about the Child Fatality Review teams at: http://phpa.dhmh.maryland.gov/mch/SitePages/cfr-home.aspx.

Sincerely,

Clifford S. Mitchell, MS, MD, MPH
Director, Environmental Health Bureau

cc:

Joshua M. Sharfstein, MD
Secretary
Maryland Department of Health and Mental Hygiene

Oxiris Barbot, MD
Commissioner
Baltimore City Health Department

Mary Beth Haller, Esq.
Assistant Commissioner
Baltimore City Health Department
Bureau of Environmental Health

*****

MUCHNICK TO MITCHELL

Dear Dr. Mitchell:

Thank you for your undated letter, which was attached to your April 12 email. I will publish its full text, along with my own reply here. I appreciate the Department’s time and effort in addressing my inquiries. (Though you state that you are replying to my email of April 7, that message was a follow-up to questions posed as far back as March 26.)

Your explanation with respect to redactions of the Meadowbrook Aquatic Center incident report of the Louis Lowenthal drowning is quite a bit more thorough than the previous one, and I will take it under advisement and discuss further with public information advocates. Intuitively, I would think the government faces a high bar in attempting to withhold any, or certainly most, data from a public incident report involving a deceased person. In that connection, I still do not understand what principle separates the incident report from the Lowenthal autopsy, which you had previously produced intact. As I said, I will continue to research and consider possible further steps.

On my other question, your citation of Maryland’s Child Fatality Review process is simply not on point. By analogy (and speaking purely hypothetically here), if the Lowenthal youngster had died as a result of vehicular manslaughter, the measures taken by public officials surely would not have begun and ended with the submission of the information into a database as part of a policy resource on the societal problem of drunk driving; in addition, the person licensed to drive the car that crashed would have been investigated and faced possible consequences. You reiterate that public pool regulatory inspection, investigation, and license renewal in Baltimore are the purview of the Baltimore Health Department, and by my inclusion of Commissioner Barbot in the cc list below, I again emphasize my pursuit of the full story of the post-Lowenthal death actions in those areas. For starters, the City could respond, as it has not yet done, with an acknowledgment of the receipt and disposition of my request for Meadowbrook’s licensing documentation under the Maryland Public Information Act.

Sincerely,

Irvin Muchnick

cc:

Joshua M. Sharfstein, MD
Secretary
Maryland Department of Health and Mental Hygiene

Oxiris Barbot, MD
Commissioner
Baltimore City Health Department

Mary Beth Haller, Esq.
Assistant Commissioner
Baltimore City Health Department
Bureau of Environmental Health
[Dr. Mitchell: Please forward to Ms. Haller, for whom I do not have an email address]

Karen Black
Public Information Officer
Maryland Department of Health and Mental Hygiene

Tiffany Thomas Smith
Public Information Officer
Baltimore City Health Department