# Narrative: Getting the "Cost of Misdagnosis" in the hands of the public

In August 2023, tensions arose between Lehigh County Controller Mark Pinsley and other county officials concerning an investigative report titled "The Cost of Misdiagnosis" that Pinsley had compiled. As Controller, Pinsley serves as the county's chief fiscal watchdog, responsible for audits and oversight. County Executive Armstrong is the head of the county's executive branch operations and runs all of the adminstrive functions of the county, including the Department of Human Services. The County Commissioners form the legislative body approving budgets, creating policies and having oversight of the county.

The "Cost of Misdiagnosis" report outlined the potential costs to Lehigh County associated with misdiagnoses of child abuse. It suggested over-reporting of Munchausen syndrome by proxy based on statistical analysis. The report reviewed cases involving Dr. Debra Jenssen of Lehigh Valley Health Network, indicating she may be misdiagnosing Munchausen and other types of medical child abuse.

The County Solicitor's office creates an inherent conflict of interest in this situation. The same Solicitor's office represents multiple government agencies in Lehigh County, including the Controller, Children and Youth Services (CYS), and the Administration.

Kerry Friedl, the attorney from the Solicitor's office assigned to review Pinsley's report attachments, also serves as the primary solicitor for CYS. When Dr. Jenssen recommends removing a child from their home, Friedl or someone from his CYS office takes this recommendation to a judge and enables the removal.

By facilitating removals based on Dr. Jenssen's diagnoses, Friedl is essentially validating and approving Jenssen's determinations. Yet in reviewing the Controller's report, Friedl took Jenssen's side and claimed the report was "ultra vires." The same solicitors also provide legal guidance to the Administration.

This intersecting web of responsibilities creates an inherent conflict of interest. The solicitors are tasked with representing multiple agencies as well as advising on actions those agencies take. Friedl should have recused himself due to his role in Jenssen-related cases. Instead, the conflicted solicitors labeled the Controller's report unacceptable despite valid concerns.Dr. Jenssen has a history of questionable diagnoses at other hospitals as well. The report underwent several iterations, originally naming the doctor and hospital directly but ultimately excluding those details. The final report contained only verifiable facts regarding statistical evidence and past cases pointing to problematic patterns of misdiagnosis and associated county costs.

This document lays out a timeline of critical events related to the report, starting in mid-July 2023 as Pinsley conducted his investigation. It details correspondences with the County Solicitor, budget cuts targeting Pinsley's office, and actions around releasing the report in late August. The timeline summarizes the sequence illuminating the conflict between Pinsley and other county leaders regarding publication of the hard-hitting report.

## Timeline

### Prior to August 9th, 2023:

- Starting mid-July, Controller Pinsley began submitting Legal Service Requests (LSRs) to get clarity on information he was allowed to have concerning the Orion Case.
- Pinsley included many possible attachments that he had received from parents or lawyers concerning their case. He wanted to understand what attachments he could include in the report.
- Controller Mark Pinsley had undertaken an investigation into potential issues related to child abuse misdiagnoses after becoming aware of concerning accounts.
- Pinsley submitted a series of attachments related to his upcoming report "The Cost of Misdiagnosis" to the County Solicitor's office for review via LSRs while still drafting the full report.
- The LSRs sought to protect the County and Controller from potential liability for the planned report findings.

### August 9th, 2023:

- Kerry Freidl of the Solicitor's office responded to the LSRs based solely on the submitted attachments, stating that releasing the report appeared to be "ultra vires" actions by Pinsley.
- Pinsley countered, asserting the report was focused on significant liability risks and financial waste related to misdiagnoses, fully within his duties as Controller.

### August 16th, 2023:

- The Solicitor's office sent another warning letter to Pinsley, reiterating the concerns of potential "ultra vires" actions and significant liability, urging him to share this with his staff to underline the seriousness.
- He recieves a letter from the Law Deparment on August 16th. The letter suggests he send this to all of this employees. An exceprt of the letter states:

> Several of the attorneys in the Department of Law have discussed this situation and we feel compelled to again reiterate our concerns and conclusions about your actions potentially falling outside of the scope of your defined responsibilities. Furthermore, and again, you and your office may be exposed to personal liability should the NAS report contain misstatements or misrepresentations of fact or be found to be defamatory by a court. If it is determined by a court that your report is defamatory, violates someone’s due process rights, constitutes tortious interference with a third-party contract, or breach of fiduciary duty, you will be exposing both the County and yourself to extensive and significant liability. Finally, as we have reviously informed you, if you are not acting within the scope of your duties, then the County’s insurance company may not provide a legal defense to you or your employees, and as such you may not be provided liability coverage.

The full letter can be seen on **pages 64-66** of the Supporting Documents file

**Note:** Pinsley was directed to send this to his staff. The intent was to scare his staff

- Deputy Controller Nanton Johns learned about the planned elimination of two staff positions from Pinsley's departmental budget for 2023 from Chief Fiscal Officer Tim Reeves and Karen Carrano-Miller.
- Pinsley saw this as a targeted attack and contacted Backenstoe, asserting it was direct retaliation for his investigation.

### August 17th, 2023:

- Pinsley, affected by the 'ultra vires' warnings and the budget cut, postponed the planned events to present the report findings. He wanted to hire an outside attorney to review the report before proceeding.
- Pinsley's staff, after seeing the letter from the Solicitor's office and learning about the budget cut, asked Pinsley not to issue the report. This led to the cancellation of the press conference and public meeting with affected families.
- The two Controller's office staff positions that had been slated for elimination were reinstated by Armstrong, though the exact date is unclear. This occurred sometime after Pinsley's August 17th conversation with Backenstoe.

### August 18th, 2023:

- Pinsley sought to hire outside counsel Matt Mobilio for advice on releasing the report, not trusting Backenstoe and the County Solicitor's office to represent his interests adequately.
- The administration knows that hiring an outside attorney will take 14 days minimum (to date they still have not approved the contract)
- Pinsley convinces Mobilio to work over the weekend as Pinsley knows the budget is supposed to go to print between Monday and Weds. The board meeting is on Weds
- Despite not yet being officially "hired" by the County, Mobilio agrees to work over the weekend. The goal is to make sure he minimizes any possibility of defemation or being ultra veris. Pinsley and Mobilio complete this over the weekend.
- - Mobilio ensures the report wasn’t "ultra vires" and was free of potential defamation.
- Mobilio writes says the report is good to go so that Mark can tell his employees. Pinsley has also sent it to another lawyer Stretton who also issues a letter who believes it is in good condition.

### August 23rd, 2023:

- Pinsley waits for the budget to go to print (it is not approved, just goign to print). He then calls Backenstoe and tells him that Pinsley is going to release the report and that they will be showing up at the board meeting. He directs Backenstoe not to tell anyone
- Backenstoe asks Pinsley not to release the report. Pinsley is relentless.
- Pinsley, having made the necessary edits with Mobilio and receiving clearance, proceeded with publicly releasing the report, holding a press conference, and allowing affected families to share their stories at the public County Commissioners meeting.

### August 31st, 2023:

- During a County Commissioners budget meeting, John Faulk questioned Edward Hozza about being involved with the attempt to eliminate positions from Pinsley's office budget.

### September 8th, 2023:

- Pinsley has chance encunter with Commissioner David Harrington in the parkling lot of the government center.
- Durring the conversation Harrington tells Pinsley that he recieved a phone call from Commissioner Jeff Dutt.
- Commissioner Dutt contacted Commissioner Harrington.
- Previously, two staff positions had been cut from Pinsley's budget.
- There would be an upcoming public budget meeting where Pinsley could request changes.
- At this meeting, Pinsley could ask for the two eliminated staff positions to be added back into his budget.
- In advance of the meeting, Dutt wanted to explore Harrington's response to reducing Pinsley's budget and how Harrington would vote if Pinsley requested changes to reinstate his people.
- This interaction revealed to Harrington that multiple people were involved in trying to prevent Pinsley from releasing his report.
- Harrington **saw** Dutt's request as **retaliation** against Pinsley for the report, and refused to be involved.
- Dutt was facilitating these calls because Commissioner Brace was away on vacation.
- This indicated either Brace or Armstrong had asked Dutt to make the calls.
- Based on Harrington's account, Pinsley was uncertain if Armstrong had first tried to reach Brace about the budget reduction.
- Pinsley was also unsure if Brace then asked Dutt to secure support, or if Armstrong contacted Dutt directly.

### September 12, 2023:

- Pinsley saw Ed Hozza in the hallway when leaving for lunch. Pinsley asked Ed about the budget cut. Hozza, after initial denial, admitted to having knowledge. Ed told Pinsley that he went to Phil suggesting that he not cut people's budget. It is onething to go after Pinsley, it is another to fire people who are not involved in this
- Armstrong told Hozza that the budget cut was a "scare tactic."

### Key Figures Involved:

(_there are more commissioners and more direct reports. We are only showing those that are mentioned in this report_)


**Lehigh County Commissioners**:

- Geoff Brace (Chairman)
- Jeff Dutt (Vice Chairman)
- Dave Harrington

**Philip Armstrong (Executive, Lehigh County)**:

- Direct reports:
- Ed Hozza (Deputy Administrator)
- Rick Molchany (Director of General Services)
- Tim Reeves (Chief Fiscal Officer)
- Karen Carrano-Miller (Lead Accountant)
- Kay Achenbach (Director, Lehigh County Human Services)
- David Backenstoe (Solicitor, Lehigh County):
- Kerry Freidl (Assistant Solicitor)

**Mark Pinsley (Controller, Lehigh County)**:

- Direct reports:
- Nanton Johns (Deputy Controller)
- Michelle Hobel (Operations Manager, Controller's Office)
- John Faulk (Retired Deputy Controller)