Top officials at the state health department's lab wrongly orchestrated the widespread destruction of blood test records for lead-poisoned children, even as they knew the documents were being sought by the children's attorneys through court subpoenas or public information requests, according to a report released Friday by the agency's chief investigator.
The report, by Inspector General Thomas V. Russell, portrays the state lab as a place where supervisors felt overwhelmed and badly understaffed, and where the steady requests for blood results submitted by plaintiffs' lawyers fed a growing resentment that eventually prompted the shredding and erasing of records.
While years' worth of paper records were inappropriately shredded earlier this year, the lasting damage appears to be minimal, according to state officials, thanks to computer technicians who managed to recover key information contained in electronic files that had been deleted.
But Russell's report says that, given the outstanding requests, lab supervisors had no legal right to destroy the records simply for the sake of alleviating their workload.
Russell said he will refer the case to the criminal division of the attorney general's office, as required by a standing executive order. Steve Ruckman, a spokesman for the attorney general's office, had no comment on the case but noted that such referrals are common.
Dr. John DeBoy, former director of the state lab, and his deputy, Michael J. Wajda, had been told by lab colleagues about a "significant backlog of subpoenas and medical record requests" in December and early January — before Wajda ordered the destruction of records with DeBoy's consent, Russell found.
When it began, Wajda joined in, the report says, working with another employee to hoist boxes of records into a bin for shredding.
Health Secretary Joshua M. Sharfstein, who took over the agency in January, called the records' destruction "a regrettable incident" but added: "It's an important opportunity for the lab to move forward and maintain its trajectory as a terrific public health lab. The report indicates this was a traumatic episode for the lab. We want to be able to put this behind us."
He emphasized Friday that technicians recovered all important electronic data — information that plaintiffs' lawyers consider crucial to pursuing lawsuits seeking damages on behalf of poisoned children and their families.
DeBoy and Wajda were put on administrative leave after Sharfstein learned of the records' destruction in early March and ordered an immediate halt. The two have since retired.
Both lab officials denied to investigators that they knew they were ordering the destruction of records under subpoena, and DeBoy has maintained he was acting on legal guidance he received last summer from a state lawyer.
Wajda could not be reached for comment Friday. DeBoy's lawyer, Steven H. Levin, called the report's findings "irresponsible and without merit," pointing to his client's assertion that he was unaware of any subpoena backlog by the time the disposal began in January.
Russell, inspector general for the Department of Health and Mental Hygiene, concluded differently after interviewing staff members and reviewing emails. Several employees involved in handling subpoena requests told investigators about "detailed conversations and meetings in early January of 2011 in which the subject of shredding documents under subpoena was discussed."
Two employees said they disagreed with disposing of the records and refused to sign off on letters falsely indicating that the lab did not have the records being sought.
Wajda ordered employees to move paper records from the fifth floor to the first floor, "so they would be close to the shredding room," the report says. "Wajda and one other employee," it continues, "actually dumped the records into totes or bins" used by a contractor to collect documents for on-site shredding. This occurred between mid-January and late February, the report says.
Investigators said they also uncovered orders to erase electronic records. On Jan. 13, Wajda, "with Dr. DeBoy's approval," instructed an information technology employee at the lab to destroy an electronic copy of lab results. The employee complied only after obtaining a written directive from Wajda.
Doctors and health clinics in Maryland have been required since the 1980s to provide the state health department with 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 even in small doses.
The department has maintained those test results for years and provided them on request to individuals who had been tested, their parents or their lawyers.
In recent years, the number of people whose records were subpoenaed or otherwise requested reached 400 a month, Russell's report said. At the time of the destruction, pending requests stretched back to October of last year and involved about 1,500 individuals.
Adding to the lab's pressures, starting in 2009 the state legislature required that the state lab process all blood tests to screen newborns for hereditary and congenital disorders, whereas before private labs could contract with hospitals. Yet the lab remained short-staffed.
"The confluence of these pressures was a major factor which prompted the destruction of the records," the report concludes.
As early as May 2010, DeBoy was looking for a legal interpretation to "get us out from under this burdensome responsibility to respond and provide thousands of copies of lead test results to attorneys," according to a memo he wrote.
Wajda, meanwhile, had written to a state lawyer suggesting that lab records were not medical records and therefore had to be kept for only two years under state and federal regulations, instead of five years or until a patient turned 21.
In July, Assistant Attorney General Jenny Bowlus sent Wajda an email in which she appeared to agree with his assessment. However, Bowlus later told investigators that the request was narrow and there was never any discussion of destroying records under subpoena.
Russell's report points out that it had long been the lab's practice to keep blood test records for at least 22 years. The reason was that the records were for children who might still have a legal claim for poisoning from lead-based paint until they turned 21.
The report describes other lab employees objecting to DeBoy's and Wajda's shredding plans.
In early January, employee Tina Wiegand "told Dr. DeBoy that she was uncomfortable with the plan. She told him she had a three-month backlog of subpoenas/requests and that she could not shred the records," the report said.
Another lab colleague, Dr. Fizza Majid, recalled around the same time "strongly objecting to destroying records and told Dr. DeBoy about the requests in hand which had not been complied with."
The shredding and computer deletions began soon thereafter, affecting records from 1985 to 2003. By late February, lawyers specializing in lead lawsuits were complaining to the lab. On March 2, word reached Deputy Secretary Frances B. Phillips, and the destruction soon stopped.
In an email to Phillips, DeBoy explained why records were destroyed.
"I took this action because for years attorneys have been using these records to scour our possible cases for blood lead suits," he wrote, adding, "It became a choice of using my staff to perform laboratory testing or continuing to support private law firms.
"I am willing to take whatever lumps come along with my decisions," DeBoy wrote.