Health department investigating destruction of lead paint records

The state's health secretary said Friday that his department's laboratory has destroyed test results dating back to the 1980s documenting lead poisoning of Maryland children — potentially thousands of records that plaintiffs' lawyers say are crucial to pursuing lawsuits seeking damages on behalf of poisoned children and their families.

Dr. Joshua Sharfstein said he has asked for an investigation of how the destruction of records happened, replaced the lab's director and ordered efforts be made to recover whatever test results might have been deleted from state computer files.

"We regret this, and we're going to do everything possible to make it right," Sharfstein said in a telephone interview.

Doctors and health clinics have been required since the 1980s to report to the state health department results of tests showing children had elevated levels of lead in their blood. Lead is a potent neurotoxin that can cause lasting learning and behavioral problems in even tiny doses.

The department has maintained those test results for years and provided them on request to individuals who'd been tested, their parents or their lawyers. Scott E. Nevin, a lawyer with the firm of Peter T. Nicholl, called the records "critical" to the hundreds of lead-poisoning cases his office and other law firms have pending or are preparing.

"If in fact the records are permanently gone," Nevin said, "it will just make it impossible for some citizens in Baltimore to pursue cases."

The revelation comes more than a week after The Baltimore Sun reported that the Baltimore City Health Department had lost federal lead abatement money for failing to meet treatment targets.Sharfstein, who took over leadership of the state Department of Health and Mental Hygiene in January, said he learned of the destruction of records late last week and has acted promptly to halt the practice and restore any results that can be restored.

"We are not destroying any more records. We are preserving records. We are going back and reconstructing databases," he added, and "doing everything possible" to find and replace the lost test results.

John DeBoy, the lab director the past 71/2 years, has been removed from his position and placed on "administrative status," Sharfstein said, pending the outcome of an investigation the secretary has requested of the health department's inspector general. DeBoy did not reply to an e-mail or phone messages left at his home.

DeBoy, who's been with the state health department for 27 years, received the Gold Standard Award for Public Health Laboratory Excellence in 2007 from the Association of Public Health Laboratories.

The lab's deputy director, Robert A. Myers, was named acting director Tuesday, according to Sharfstein.

Sharfstein said he found out about the practice after being informed that lawyers specializing in lead-poisoning lawsuits had filed a petition in Baltimore Circuit Court seeking a restraining order barring his department from destroying any more children's test results. He said he's met with some of those lawyers and pledged to do what he can to remedy the loss of records.

"Regardless of whether the department has a legal obligation to maintain these records, we intend to do so," the health secretary wrote in a letter to lawyers handling lead-poisoning cases.

The petition for a restraining order was filed by Brian Brown, a lawyer with Saul E. Kerpelman & Associates, a firm that specializes in lead-poisoning cases. Since then, Nevin's firm and another handling lead-poisoning cases have filed to join in the request for a restraining order. A hearing is scheduled Monday.

Brown and Nevin praised Sharfstein for his quick response and pledge to remedy the situation.

Brown said he decided to seek a restraining order after he and other lawyers started getting multiple notices from the state health lab that it didn't have any records for individuals on whose behalf they were seeking test results.

"Because Baltimore City is replete with substandard housing which landlords fail to maintain, unfortunately lots of kids did and still get lead-poisoned within these homes," Brown said. "And so there are many requests for blood-lead levels on behalf of children who become poisoned."

Sharfstein said he hopes the investigation will reveal why the records were destroyed. He said the state attorney general's office also was "looking into it" because it wasn't clear what, if any, advice the department's assistant attorney general might have given to lab officials about destroying records.

Raquel Guillory, spokeswoman for Attorney General Douglas F. Gansler, declined to say what her office's lawyers might have told the lab staff, noting that the health department is a client of the attorney general's office.

But Nevin said when he spoke by phone with DeBoy, the lab director said he'd been advised by an assistant attorney general that he was within his rights to destroy the records.

It's not clear how long the destruction of records had been going on. Nevin said his office received written notice about two weeks ago from the state health department that it had no record for a test result requested more than a year earlier.

Sharfstein said he doesn't know how many test results have been lost, but "at least a dozen boxes" of paper records were destroyed and "some" of the electronic copies on computers.

The state health lab records not only documented the lead levels in a child's blood, Brown said, but also listed where the child was living at the time — a key piece of information in a lawsuit seeking damages from a landlord whose rental home might have contained lead-based paint.

The doctor or clinic that ordered the test would have gotten the same test results, Brown said, but those sources are not as reliable, especially in older cases, because the offices may have since closed.

"Now if DHMH doesn't have the records, we may be out of luck," Brown said.

Sharfstein said he's optimistic the department may still be able to find or restore electronic copies of the paper records that were destroyed. In addition, blood-lead test results are reported to the Maryland Department of the Environment and, in the case of city residents, to the Baltimore City Health Department, the health secretary pointed out.

Nevin said records maintained by those agencies are not as complete as what used to be at the state health department. Still, Sharfstein said he hopes to coordinate with those agencies and others to compile documentation of all lead test results, and to ensure that it's accessible to those who need it.

"This is a regrettable incident, but maybe we can create a better system for children and their advocates," Sharfstein said.

Source: By Timothy B. Wheeler, The Baltimore Sun