CHAPTER 9
ANNA POU HAD FINALLY and quietly returned to performing surgery. Months had passed since her name was broadcast, and little seemed to be happening with the investigation at the attorney general’s office, although rumor had it something might soon emerge.
James O’Bryant, her patient before Katrina, had developed facial pain again. A scan showed the cancer had grown back behind his left eye and needed to be removed. He said he wasn’t sure he wanted to undergo another extensive operation. The chairman of Pou’s department, Dr. Dan Nuss, believed he could remove the whole tumor, and O’Bryant decided to let him try. Pou would work alongside Nuss to reconstruct O’Bryant’s face.
The operation took place on Thursday, July 6. The surgeons painstakingly removed bits of tissue, sending them for a rough initial check under a microscope for cancer cells before cutting deeper. Over many hours, they pursued the tumor’s tentacles only to discover that it had invaded a bone around a previously removed blood vessel. The scan had not shown this. To get all the cancer, they would need to open O’Bryant’s skull, something they felt he could not withstand. Twenty hours into the operation, they closed his face as best as they could and left part of the tumor inside him.
A nurse walked into O’Bryant’s room after the operation. “Oh my God,” she said. “What do they expect me to do with this?”
“Please just act like you know what the hell you’re doing,” O’Bryant’s wife, Brenda, said. “He’s frightened to death.”
Patients with shocking facial deformities were new to Our Lady of the Lake Regional Medical Center, a Franciscan-run hospital in Baton Rouge. Pou and her Louisiana State University head and neck surgery colleagues were operating there now because the New Orleans hospitals where their department had been based had not reopened.
After Pou learned from Brenda O’Bryant about how the nurses were treating James, she called a meeting with the staff members. They crowded into a room with a computer, and Pou showed them step-by-step what procedures had been done and how James had reached his current condition. She explained why following every last detail of her care instructions was so important to helping the fragile tissues of his reconstructed face heal.
Pou worried about O’Bryant’s recovery. She posted signs in the intensive care unit warning anyone caring for him not to put pressure on the left side of his face, head, neck, shoulder, or arm.
DEPARTMENT CHAIRMAN NUSS had friends in high places. Through him, Pou and her attorney, Rick Simmons, learned that Foti was likely to release the findings of his investigation, and they would not be good for Pou. Someone from the attorney general’s office called the department asking for Pou’s address, a worrisome development.
On Friday afternoon, Simmons phoned the attorney general’s office. “Are you going to arrest my client?” he asked. “No, not right now,” prosecutor Butch Schafer said, somewhat honestly. “We can self-surrender,” Simmons reminded him. They had discussed this before. Simmons would deliver Pou to be booked in order to avoid the indignity of a surprise arrest. Attorneys for Lori Budo and Cheri Landry had also expressed a preference for self-surrender. Simmons assumed they all had a deal.
Simmons asked Schafer to give him a call so he could bring Pou in and avoid a “perp walk.” He didn’t want news crews tipped off, snapping photographs of his client being led to jail in handcuffs. Schafer assured him that wasn’t going to happen.
Simmons placed a few other phone calls and told Pou to keep her surgery schedule. Pou had plans to spend a long weekend off in New Orleans with her mother. She gave that up, instead picking up her mom and driving the seventy-five miles back to the capital where Pou now stayed part-time at a home she did not own. Throughout the weekend, she checked on O’Bryant in the ICU, spoke with his nurses, and sat with Brenda, consoling her.
THE ARREST TEAMS had printed out Yahoo! maps on Friday and checked their targets’ work schedules. On Sunday afternoon they met to learn the surveillance plan. Pairs of agents began watching Anna Pou, Lori Budo, and Cheri Landry in four-hour shifts, following them between their homes and worksites. They were instructed to “maintain visual” and know the women’s whereabouts at all times in preparation for the planned arrests of all three women on Monday.
Anna Pou’s cell phone rang on Sunday evening. It was Brenda O’Bryant calling about James. Hours earlier at the hospital, a doctor in training had tugged at what he thought was a stitch that needed to be removed. He had in fact torn away part of a scab, but James had seemed all right. He was discharged as planned and the couple drove two hours home to Bogalusa, a paper mill town on the Pearl River at the Louisiana-Mississippi border. In 1995, a chemical accident in Bogalusa poisoned thousands and led to a class action lawsuit that was settled months before Hurricane Katrina. Brenda figured that the orange cloud that had hovered over the city for several days had caused James’s cancer.
At around seven thirty p.m., Brenda noticed blood pooling beneath James’s face and called Pou, who instructed her to put something cold on his wound and head to the nearest emergency room. Pou asked to speak with the ER doctor on Brenda’s cell phone. At first he refused to take the call. Brenda insisted and handed him her phone. Pou asked him to check several things. He seemed annoyed and gave the phone back to Brenda.
Pou kept Brenda on the line, even when a security guard escorted her out of the ER for violating the hospital’s no-cell-phone policy. Pou convinced her not to hang up. “I need to know what’s going on,” she said.
The bleeding seemed to have stopped. If it started again, it could be catastrophic. Pou told Brenda to make sure James was observed for at least an hour in the ER, then taken back to Our Lady of the Lake in Baton Rouge by car or ambulance. “I can’t do anything without seeing him,” Pou said. “You’ve got to bring him back here.”
James was experiencing more pain. He began praying aloud. Then his wound started gushing.
The ER doctor put a stitch in his face to stop the bleeding. It seemed to work, but Pou wasn’t yet comfortable letting Brenda drive James to Baton Rouge. Blood might be gathering in a confined space beneath the surface, a hematoma, its pressure growing.
James said his pain was getting worse. The doctor didn’t seem to believe him. He acted as if James were an addict seeking narcotics.
Then James’s face erupted. The staff rushed him into an ambulance. He was bleeding so profusely that on the way to Baton Rouge, they transfused him with two units of blood.
Pou prepared the operating room. She called her chairman, Dan Nuss, telling him he had to come in on a Sunday night. The surgical nurses arrived, and the staff scrubbed their hands and arms and donned sterile gowns and gloves. They operated on O’Bryant through the night.
THE SAME NIGHT, Attorney General Foti met by speakerphone with agents and prosecutors to go over the arrest plan for Monday. One prosecutor suggested upping the charges from second- to first-degree murder. Murdering with the specific intent to kill someone older than sixty-five, or more than one person of any age, fit the state’s definition of the more serious crime.
“No!” Foti’s public information director Kris Wartelle nearly shouted. The idea of prosecuting Katrina health professionals for first-degree murder was crazy. Merely investigating them for second-degree murder had provoked angry letters from the public. A second-degree murder conviction would carry a lifetime sentence of hard labor without parole in Louisiana. The only thing to gain from first-degree charges was the option to pursue the death penalty.
One attorney on the call suggested dialing down the charges to manslaughter; murders committed in “sudden passion” with loss of self-control after a provocation, or in cases where there was no intent to kill, carried a maximum sentence of forty years’ imprisonment. The voices advocating for second-degree murder prevailed.
Wartelle sensed that sending agents out to arrest the women was a terrible idea from a PR standpoint. She gave Attorney General Foti advice on how to avoid media attention during the arrests, so the television cameras did not catch the women in a perp walk and broadcast the footage on the popular “Live at Five” evening or ten o’clock nightly television news. She asked him to slow down, to go over with her the questions he might face at a press conference after the arrests. He did not.
Prosecutor Butch Schafer and Special Agent Virginia Rider also disliked the idea of surprise arrests. Rider bore responsibility for organizing them, and Schafer knew she was not enthusiastic about slapping handcuffs onto suspects’ wrists. Schafer made his opinion known in the strongest possible terms within the attorney general’s office. Letting people turn themselves in was done every day; it hadn’t occurred to Schafer these arrests would go any other way. He knew the women’s attorneys expected they would be allowed to deliver their clients to be booked. He had given them his word he would contact them if their clients were going to be arrested, and a Southern gentleman didn’t violate a gentleman’s promise. But it was the attorney general who had the power to make this decision. Perhaps he wanted to use the case to establish his strength as a prosecutor after spending three decades as a sheriff.
Rider often lay awake the night before an arrest, wondering if what she was about to do was wrong. Whether by surprise or self-surrender, she knew it would change the suspect’s life forever. In this case, evidence to warrant the arrests before a judge had been present for months. It was time for justice to advance.
Schafer did not wrestle with his conscience over prosecuting the women. Given what he knew about what happened at Memorial, he felt, absolutely, it was right.
ANNA POU and Dan Nuss succeeded in closing James O’Bryant’s facial defect after operating all Sunday night. They transfused him with more blood to replace what he had lost.
Pou tried to calm Brenda, who was furious at the ER doctor. “It’s not his fault that it started bleeding,” Pou said. “The hematoma may have happened anyway.” If James hadn’t stopped at that emergency room, the crisis might have occurred in their car on the way to Baton Rouge. “He could have died then,” Pou said. “Things happen for a reason. We just have to believe that God put you there and that’s where you needed to be at that time.”
When James was settled in the intensive care unit to recover from surgery on Monday morning, Pou left for the other hospital where she worked. She had not slept, and she had another long operation on her schedule.
THAT AFTERNOON, Virginia Rider drove to New Orleans with affidavits and warrants of arrest for Anna Pou, Cheri Landry, and Lori Budo.
Rider’s affidavit was a concise and potent narrative of the alleged crimes, concatenating the salient evidence she had gathered. It drew mainly from interviews with the four initial LifeCare witnesses: Diane Robichaux, Therese Mendez, Kristy Johnson, and Steven Harris. They had heard from Susan Mulderick that the LifeCare patients weren’t expected to make it out, that staff members were “not going to leave any living patients behind,” and that the LifeCare leaders needed to talk with Dr. Pou. Dr. Pou had appeared on the seventh floor and told Mendez that the patients would be given a “lethal dose” and LifeCare staff should leave. Pou was told that one of the patients was aware but weighed 380 pounds. She asked for him to be sedated, but the LifeCare staff refused. Steven Harris had given Pou morphine, Versed, and injection supplies, and Kristy Johnson had shown Pou and two Memorial nurses to the patients’ rooms, watching a nurse, later identified as Lori Budo, inject Rose Savoie, who responded, “That burns.” Toxicology tests revealed morphine and midazolam in the four patients named in the affidavit. They included Emmett Everett, Rose Savoie, and two other LifeCare patients from the seventh floor for whom toxicology results had first become available and whose cases were reviewed by pathologist Cyril Wecht. Ireatha Watson, age eighty-nine, who had dementia, had been treated for gangrenous toes; and Hollis Alford, age sixty-six, who had a history of schizophrenia, was gravely ill from a blood infection. Wecht deemed all four to have died from a lethal amount of the drugs. Criminal District Court Judge Calvin Johnson asked Rider a few questions and signed the arrest warrants at about six p.m. They alleged that the women had violated the state’s second-degree murder statute by intentionally killing the four patients.
Rider gave the warrants for nurses Cheri Landry and Lori Budo to the leaders of their arrest teams in New Orleans. She drove back to Baton Rouge, and at about eight thirty in the evening had a rendezvous with other agents at a shopping center about a mile from Anna Pou’s Baton Rouge home to coordinate final details.
They reached Pou’s house around nine p.m. Rider walked to the door with a male colleague. She wore body armor and a gun that weighed down the bottoms of her pantsuit, pinned at the waist, a reminder of the weight she had lost in recent months of hard work and marital problems; she had not had time to go shopping for new clothes.
Rider’s colleague knocked. Moments later, a woman’s voice asked who was there. Pou opened the door and stood without shoes in rumpled surgical scrubs.
Rider reintroduced herself. Seven months had passed since they had met one another while touring Memorial. The agents told Pou she was being arrested and several entered the house. Pou was alone. They asked if she had any weapons and patted her down. Pou asked permission to change into fresh scrubs. Rider agreed and followed Pou into her bedroom with another female agent. They watched as the short, compact woman changed, brushed her teeth, and put on deodorant in the attached bathroom.
“What about my patients?” Pou asked. She told the officers she couldn’t leave home because she was awaiting a stat laboratory result. Rider asked which doctor covered her patients when she was not available and allowed her to phone him. “I can’t tell you what’s going on,” Pou told the doctor. She asked him to check the calcium level on one of her patients, and she described the other issues she needed him to track. “Please cancel all my surgeries this week.”
Pou was told to take off any jewelry and bring only her driver’s license with her to the prison. She said she wasn’t wearing jewelry, and her driver’s license was in her bag. Rider told her not to reach into the bag, to pour its contents out instead. She watched while Pou did this and removed what appeared to be her wallet.
Rider read Pou her rights. Pou signed “Anna Maria Pou” on a form indicating she understood them, and she initialed the line “No” where it asked if she was willing to answer questions without her lawyer. Then Rider slipped a pair of handcuffs over Pou’s hands, checking, as she had learned in police academy, for a space of two fingers’ width between the metal and Pou’s wrists for comfort before double-locking the cuffs.
Rider escorted Pou to the backseat of the car and made sure she did not hit her head as she entered. With the help of a colleague, Rider fastened Pou’s seat belt.
They drove thirteen miles, with other agents following them, to the East Baton Rouge Parish Prison in Scotlandville, where Rider told Pou she would be booked as a fugitive. The sound of this concerned Pou, whose brother was a federal fugitive. Rider explained that it didn’t mean Pou was running from the law, only that she was being picked up in East Baton Rouge on a warrant from another parish.
At the prison Pou was booked, fingerprinted, and photographed. It was nearly ten thirty p.m. She looked straight into the camera with wide eyes, questioning brows, and lips closed and downturned like a child stunned by an unjust punishment. It was a look that communicated shock and devastation. It was an accusatory look. It was a look that asked: How could you?
HER HANDS that had just performed surgery were being cuffed again and hooked to a chain attached to a loop at the front of a belt at her waist. Rider and a male agent escorted her back to the car. The male agent asked if she was OK and offered her a water bottle, opening it for her. She found she could drink from it while shackled.
Small things made her grateful. They didn’t cuff her behind her back for the ninety-mile journey. “I don’t think you’d be comfortable going all that way with your hands behind your back like that,” one of the officers said.
During the trip, Pou prayed quietly. She prayed for God to help her family get through this. The agents seemed courteous; they asked her several times if she was all right. One, after speaking with a colleague by phone, told her that her lawyer, Rick Simmons, had been notified and would meet them at the Orleans Parish Prison. They arrived just before midnight.
She had to go to the bathroom, but even this she was not free to do on her own. The short agent with the dirty-blond hair accompanied her. When Pou finished on the toilet, she asked for assistance. Virginia Rider helped Pou pull up her scrub pants.
Rick Simmons wasn’t there yet. Pou was booked. It shocked her to read “PRINCIPAL TO SECOND DEGREE MURDER 4 COUNTS,” handwritten on the booking form. She was made to sit for another photograph under a harsh overhead light. This time she looked into the distance, not meeting the camera’s gaze. Assistant Attorney General Butch Schafer offered her his phone, and she chose to call her mother first, then her husband, Vince. Schafer kept her off to the side so she wouldn’t be sent to a holding cell with other prisoners. She signed a property bond for $100,000 and was given a subpoena requiring her to return with that sum of money and her passport by Thursday. Simmons arrived, and Pou was released on her own recognizance forty-five minutes after being booked, after midnight on Tuesday, July 18.
Pou went to stay at her mother’s house in New Orleans. After the arrest, her mother advised her to entrust herself to the Sacred Heart of Jesus. She told her to hope and to trust. Pou’s husband, Vince Panepinto, told her how hurt he was for her. “I’ve watched you work so hard and sacrifice so much and always be there for everybody, not just patients,” he said, Pou would later tell reporter Julie Scelfo. “It hurts me so much to see this happen to you of all people.” On the morning after Pou’s arrest, two friends arrived. They gave her a silver charm with the image of Our Lady of Prompt Succor, which was a statue of the Virgin Mary that had been sculpted in France and brought to an Ursuline convent in New Orleans in the early nineteenth century. Prayers to Our Lady of Prompt Succor were thought to result in quick intercession. Pou’s friends told her to put on the medal, never remove it, and never underestimate the power of her family.
VIRGINIA RIDER wore a light summer suit to the afternoon press conference at the attorney general’s office in Baton Rouge. She went to stand, hands crossed before her, in a gaggle of tall male colleagues gathered in a conference room already abuzz with reporters. Butch Schafer walked in behind her wearing a polo shirt with a patch over his heart in the shape of the “Louisiana boot,” the attorney general’s office logo. He was the only man not in a dark suit and tie. He had stayed behind in New Orleans overnight to monitor the booking process and ensure the arrest paperwork was correct. He had only just walked back into the building in Baton Rouge. A riot of microphones was perched atop a podium emblazoned with the state seal and surrounded by flags. Attorney General Foti’s media staff passed out copies of the arrest warrants in dark-blue folders and asked reporters to add their names to a sign-in sheet.
The gray-haired attorney general entered the room, ambled in front of Rider, and walked stiffly to the podium amid strobelike flashes and the clatter of camera shutters. “Afternoon, everybody,” he began without notes, slowly scanning the room as he spoke.
“Memorial Hospital is a hospital in the city of New Orleans—a big hospital, been there a long time. Inside that hospital, they have another hospital called Lakeside. Lakeside has acute care patients.”
“LifeCare,” his spokeswoman, Kris Wartelle, whispered from a chair beside the podium. He halted, turned, and peered at her through rimless glasses. “LifeCare,” she corrected him. He craned his neck to bring his ear closer to her, and she said the word a third time, a little louder. “LifeCare.”
“Has acute care patients,” he repeated, not acknowledging his mistake. “These were some of the people that it was alleged that they were killed by lethal injection.”
Foti turned to his notes and announced the arrests the previous evening of Pou and two nurses, Cheri Landry and Lori Budo, for four counts of principal to second-degree murder. “ ‘Principal’ means that you assisted or participated with the act,” he said, explaining later that it was not yet clear exactly who had injected which patient with morphine and what he called “mazdolome,” a mispronunciation of the drug midazolam, or Versed. He held up two fingers. “Either one of them can kill you, but when you use both of them together it becomes a lethal cocktail that guarantees they are going to die.” He paused, blinking, for emphasis.
The reporters recognized a good quote, a quote that telegraphed Foti’s message succinctly and provocatively. The problem was that viewers with any medical training knew that it was false. The drug combination could indeed be fatal, but could also be used safely if given with care.
“We feel that they had abused their rights as medical professionals,” Foti added, pointing out that the arrests had nothing to do with the other doctors and nurses who had cared for patients under the most adverse conditions. These three were different. “We’re talking about people that pretended that maybe they were God.”
He explained why his investigators and prosecutors had worked so hard on the case. “We are entrusted to look after the safety of our senior citizens, our children, people that need help.
“For those voices that cannot speak, we will speak.” He thanked several members of the team by name, including lead case agent Virginia Rider.
Foti took questions. He asked the reporters to speak up because he had a head cold and his ears were blocked. When a reporter mentioned the word “euthanasia,” he stopped her short.
“This is not euthanasia. This is plain-and-simple homicide,” he said, careful to note that it was subject to being proved in court. “We have probable cause to say that this was homicide.” Most of the reporters used the inflammatory quote without including the attorney general’s caveats.
Foti emphasized that the women gave the injections just as helicopters and boats were emptying the hospital. “During all this time, there were people getting out of there,” he said, placing his hands in front of him as if holding the scene. “Do not all of us deserve the best chance we have to live?” he asked.
Foti warned that more counts might be brought against the women. “This case is by no means finished.” Other health-care workers were still being investigated. “I would probably say there will be more arrests,” he said.
“I want to say that this is an allegation. Every person, under our Constitution, has a right to trial and is presumed to be innocent.” Now that the three women had been arrested, prosecuting them was up to Orleans Parish district attorney Eddie Jordan and, if he chose to pursue indictments for murder, a grand jury.
“Thank you very much. I appreciate your indulgence,” Foti concluded, leaving the podium after thirty minutes.
LATER IN THE AFTERNOON, Rick Simmons sat before a smaller cluster of microphones at a conference table in his high-rise office in a New Orleans suburb. Although there had been no perp walk, Simmons accused Foti of arresting the three women to get mug shots for a “media event” that would bolster his reputation. Law enforcement officials would be better used “patrolling the streets of New Orleans,” Simmons sneered.
He emphasized there had been no formal charges against Anna Pou and that the power to prosecute rested not with Foti but with the office of Orleans Parish district attorney Eddie Jordan. “Mr. Jordan has agreed to my request to be able to meet with him and present any evidence we might wish to present,” he said, noting that while that was unusual, this was not a usual case. “I certainly intend to try to dissuade him from taking any action.”
Simmons held up a copy of the affidavit. “It’s just a piece of paper with allegations on it,” he said. “Like every piece of paper, it has two sides.”
He leaned on his forearms toward the microphones. “There’s no motive here”—he shook his head—“and there’s no homicide.”
He spoke of the deteriorating conditions at Memorial.
“It sounds as if you’re saying there were extenuating circumstances,” one reporter said.
“Oh, by all means. More than just extenuating. I think there were circumstances tantamount to a defense.”
Simmons explained that twenty elderly LifeCare patients had been moved from Chalmette in St. Bernard Parish to a higher floor at Memorial before the storm, creating a concentration of acutely ill patients with what he called Relocation Stress Syndrome. “It’s a phenomenon, that people in elderly positions, if you move them around a lot, they get disoriented, it creates more problems, not to mention your medication problems, et cetera, et cetera.” As evidence, he said, “a lot” of the patients who had left Memorial alive had since died (at least six, he would later say in another forum).
Some reporters seemed interested; others tried to keep Simmons on point. “Is your client innocent?” one had asked earlier in the conference.
“Yes. No doubt. Absolutely.”
“Well, was there euthanasia if there wasn’t homicide?”
Simmons refused to answer. “There’s no criminal misconduct. That’s, I mean, I hate to start using the definitions other people use, ’cause it’s used for so many contexts of end-of-life issues and things like that, so. There’s no criminal conduct.”
“Were people injected with morphine and other drugs?”
“Again, I have to get into the facts of the affidavit and talk about it.” He shook his head. “There are circumstances in which we will present our side of the case of what happened and that’s all I can say at this point.”
“Who are you guys blaming? Do you feel abandoned by the state?”
“Yes. If you look at what happened on Wednesday to Thursday when a lot of these events occurred, the state of Louisiana abandoned the hospitals,” he said, lacing his words with a tone of acid disgust. “Where was the state of Louisiana on September first? It wasn’t at Memorial Hospital, I can tell you that!”
He defended Tenet, with whose lawyers he was cooperating, saying the hospital company had rescued patients from Memorial and the state had not.
THE ISSUE of larger responsibility and blame, regardless of whether it would be admissible in a court of law, was on many people’s minds. Individual decisions at the hospital had occurred in a context of failures of every sort. Over the eleven months since the storm, government agencies, private organizations, and journalists had churned out reports that analyzed and found fault with actions and inaction at nearly every level of every system. There were echoes of the 1920s, with advance warnings unheeded, investments not made, and aid being turned away. At least this time, some of the officials pointing fingers appeared to be pointing at themselves.
Why had the city flooded? A bad storm. The loss of a wetlands buffer. Most of all, around New Orleans, the levee and flood control system—increasingly federalized after the 1927 Mississippi River floods and managed by the US Army Corps of Engineers—was grievously and predictably faulty. The failure to address its known weaknesses had saved money in the short term and now appeared outrageous.
Why, in the end, had more than a thousand died immediately in New Orleans—many of them in medical facilities, and many others poor and elderly—and an unknown number of others suffered and died in the aftermath due to stress and disruption of health care? So many reasons. The mayor’s delayed evacuation order. The lack of buses and drivers to move people out of town who had no cars of their own. Stubborn decisions to stay by people with the means to leave. Uncoordinated rescue efforts. Confusion and turf battles between different agencies and levels of government. Poor communications, not interoperable. Hospitals and nursing homes that didn’t evacuate before the storm and had not invested in backup power systems and backup water systems robust enough to withstand a prolonged emergency. Alarm over lawlessness, which interrupted rescues. It soon became clear that the fear of violence outweighed the actual violence, and that fear itself had compounded tragedy, as when first responders, including medical workers at the Superdome, were instructed to abandon their posts and their patients out of concern for their safety. “Most of the worst crimes reported at the time never happened,” Times-Picayune reporters asserted in an investigative story, part of a group that won a Pulitzer Prize.
Although real and troubling lawlessness and several murders and violent crimes occurred, rumors of homicidal gangs and “zombies” that had swirled from WWL to the rescue boat pilots to the halls of Memorial were revealed as overblown. Looters were sometimes foragers, searching for food and water. Gunshots assumed to have been aimed at rescuers may have been gunshots aimed, however misguidedly, at alerting those rescuers to the presence of desperate survivors. In the wake of the rumors, journalists began uncovering real and troubling evidence of several white vigilante attacks on unarmed black men after the storm, and of police misconduct, questionable shootings, and a cover-up.
Underlying the official response to the crisis was a lack of situational awareness—a view of the larger picture of what was happening and what needed to be done.
All of this had occurred against the backdrop of the knowledge, for years, that exactly such a scenario could occur. The Times-Picayune had written about it. The Hurricane Pam exercises had modeled it.
The hospital was a microcosm of these larger failures, with compromised physical infrastructure, compromised operating systems, and compromised individuals. And also instances of heroism.
The scenario was familiar to every student of mass disasters around the world. Systems always failed. The official response was always unconscionably slow. Coordination and communication were particularly bad. These were truths Americans had come to accept about other people’s disasters. It was shocking to see the scenario play out at home.
Life and death in the critical first hours of a calamity typically hinged on the preparedness, resources, and abilities of those in the affected community with the power to help themselves and others in their vicinity. Those who did better were those who didn’t wait idly for help to arrive. In the end, with systems crashing and failing, what mattered most and had the greatest immediate effects were the actions and decisions made in the midst of a crisis by individuals.
E-MAILS AND CALLS of support flooded into Pou’s home and Simmons’s office. The arrests of all three women had occurred well after the evening news, but they were amply covered the next day in New Orleans and around the world, complete with pitiful black-and-white mug shots. CNN carried much of Foti’s press conference live. The online discussion threads of the Times-Picayune website filled with comments mostly favorable toward the medical professionals.
“I know if I was in a nasty hospital like that with 100 degree temperatures and I was suffering in pain, I would want them to off me too,” Timothy of Luling, Louisiana, wrote.
“To the family members whose loved ones died in Memorial, (and who I’m sure are suing the hospital), I have one question. Where were you? You obviously weren’t with your loved one while they were trapped in that hospital,” nurse Mark C. of Metairie, Louisiana, wrote.
Anonymous A of New Orleans blamed others: “Instead of arresting three women for alleged murder, we should put our Local, State and Federal Government on trial for this atrocity.”
J. Nisis of New Orleans went even further: “Enjoy your press conferences and photo-ops, Mr. Foti. I certainly won’t forget this incident the next time you’re up for re-election.”
But not everyone was sympathetic to Pou and the nurses. Writer DM Edwards of Marrero, who described having worked at another New Orleans hospital during the disaster, wondered exactly whose pain the medical workers had been trying to relieve: “Our whole purpose for being here was to aid the patients; not to kill them because we wanted them out of our misery.”
A debate on this question broke out on the medical blog KevinMD:
What were they supposed to do, let their patients suffer and die in misery?
Who are you to decide whether or not my misery is enough for you to put me out of it without my consent or permission?
As a RN I support Dr. Pou and the nurses. I have seen Drs order lethal doses of IV medications to be given every hour to utimatley cause death. Good for Dr. Pou, let the patients die with dignity and not any further suffering.
It’s really unnerving to see how many healthcare professionals have granted themselves the right to kill when they are upset.
“Might we all make questionable judgments if we were hungry, dehydrated and sleep deprived?” asked a writer who self-identified as a doctor in Kansas City.
Two of Pou’s siblings spoke with CNN in her defense, referring to her and the two arrested nurses as heroes. A sister, Peggy Perino, said Pou had told her little about what had happened in the hospital. Perino said a Memorial nurse she knew considered Pou an incredible person and had said that nobody would have made it out of the hospital without her. “She took complete control of the whole situation,” Perino said the nurse told her. “She gave orders.”
AFTER THE ARRESTS, the lawyer for Dr. Ewing Cook, the retired pulmonologist and Memorial chief medical officer, phoned to say that under no circumstances should Cook speak voluntarily with investigators. Six days before the arrests, Virginia Rider had come to Cook’s house and handed him a subpoena to appear for an interview at the attorney general’s office. Butch Schafer was waiting in the car.
Cook had told his lawyer then, “I’ll be very glad to go. I can say what I saw.”
Cook’s attorney was one of the city’s top criminal lawyers and had been appointed by Tenet. He would tell the attorney general’s office that Cook would plead his Fifth Amendment rights and not divulge anything if he was called for an interview.
Cook was sorry about that. He had wanted to paint the scenario, explain how bad the situation had been at the hospital. They’d had the feeling they might not get out alive, and that the sick had even less of a chance. They’d felt desperate.
The lawyer’s response stuck with Cook. “For God’s sake, never say that! They’ll seize in the court on the fact that desperate people do desperate things, and you’re dead!”
Cook should volunteer nothing, keep a low profile, and speak of this to no one. “You don’t want to talk to these people,” the lawyer said, even to try to defend Pou and the two nurses. “Whatever you say has no bearing. Whatever you’d say is not going to help them anyway.” If reporters showed up, he shouldn’t talk to them, either.
This discussion made Cook feel unimportant. He wanted to help defend Pou and the nurses! It could have been he who was arrested. The only difference, he was convinced, was that the nurses who worked with him to hasten Jannie Burgess’s death had protected him in their discussions with the attorney general’s representatives.
The lawyer would tell the people seeking to interview Cook that he would be happy to testify at the grand jury. Even Cook knew no fool would bring someone to a grand jury without knowing in advance that he had something helpful to say for the prosecution.
WHEN SENIOR INTERNIST Dr. Horace Baltz saw the mug shots of Cheri Landry and Lori Budo flash across his television screen as he dressed for work, he fell forward onto his bed. He had a hard time believing they had been arrested as he slept. He adored them, knew them as principled professionals who cared for his ICU patients on the night shift with excellent judgment and skill. His heart bled especially for Budo, whose mother he’d regarded as a standard-bearer in nursing.
Baltz called her and offered to be a character witness if it ever came to that. A Memorial nurse phoned back to ask if he would be willing to speak to the press on the nurses’ behalf. He agreed, as long as he could be assured the women were being candid with the authorities. Some LifeCare employees had by their own admission facilitated the giving of “lethal doses,” and they had not engaged in cowardly obfuscation but instead bravely told the truth to law enforcement. The Memorial nurses who had any part in what happened should do the same. “Oh Dr. Baltz, we can’t do that,” the nurse who had called him said, suggesting that was because Tenet was paying for their attorneys.
Baltz felt nauseated. He prayed. His mind kept returning to the conversation he had overheard in a doctor’s office early the morning of Thursday, September 1: “Our most difficult job will be to convince the nurses …” Had one of the persuasive male physicians he’d overheard devised the evil deeds in the Stygian hospital? Had the girls, as he still thought of the middle-aged nurses, succumbed, obeying a doctor’s orders like Eves seduced by Satan in the Garden of Eden?
ANNA POU’S ARREST sickened Dr. Dan Nuss, her compassionate department chairman, who saw it as a pathetic political move by the attorney general. Nuss hadn’t been at Memorial to witness the events, and Pou hadn’t spoken much about what had happened after Katrina, but that didn’t matter. He felt he knew her so well as a dedicated, ethical doctor; there was no chance she had done anything to harm anyone.
Nuss believed the same of the nurses, with whom he had worked for many years. The idea that the three had formed a renegade team roaming the hospital bumping people off was inconsistent with their personalities and lives’ work. He viewed their accusers as disgruntled, less capable professionals who had disagreed with decisions during the disaster and ended up with an ax to grind. Pou, Landry, and Budo had his complete support.
As news of Pou’s arrest spread, Nuss was inundated with phone calls and offers to help Pou from her former colleagues and even doctors who were total strangers. They, too, seemed outraged and unwilling to believe that three health professionals who had pledged to save lives had snapped under pressure and conspired to kill.
Over the ensuing days, Nuss discussed the offers with Pou’s attorney, Simmons. Nuss believed he should use his position as a Louisiana State University medical department chairman to help generate an army of support for Pou, and he took time away from work to organize a legal defense fund through his office at the public university.
“One of our dear friends and most respected colleagues, Dr. Anna Maria Pou, is in urgent need of your support,” he wrote in an appeal.
He described how Pou had worked heroically “without sleep and without nourishment” to help others after Katrina at Memorial, where “the prevailing conditions were absolutely desperate.”
At great self-sacrifice, she prevented further loss of life and has been credited with saving multiple people from dying.
Apparently there were a few individuals at the hospital who could not understand why so many people were dying. Allegations were made, egregiously accusing Dr. Pou and the others of giving too much narcotic pain medication, even using the word “euthanasia”. This attracted national news coverage which became absurdly sensationalistic.
He surmised that news coverage had triggered the attorney general’s investigation. Nuss was confident Pou’s name would be cleared, but her defense, not covered by malpractice insurance because of the criminal allegations, would be costly.
Therefore Dr. Pou’s professional reputation AND her personal assets are at substantial risk. Remember, this kind of thing could happen to any of us who happen to be on call when a disaster strikes.
Nuss asked for donations to the Anna Pou MD Defense Fund, to be sent to him at his office. Even secretaries in the department spent their off hours spreading the word in a letter and e-mail campaign. Within a week they had collected about $30,000.
The money would be used both for Pou’s legal defense and the defense of her reputation. The effort now turned to making the allegations disappear by attracting attention to a radiant image of Pou. Her supporters would highlight the virtuous, heroic aspects of her career and personality in the public’s mind, which would carry into the DA’s office and the grand jury room. They would act as if the allegations did not exist—a sleight of hand. They would savage the reputation of the attorney general and chastise reporters who sought to learn the truth about the alleged crimes.
In large circles of New Orleans society it became impolite to discuss the events as if they had happened. It was no longer a question of whether what the women did was right or wrong. It simply could never have occurred. There was absolutely no basis in the claims that patients had been injected and died, no matter the intent.
Partners of the New Orleans public relations agency Beuerman Miller Fitzgerald (“The strength to shout; the wisdom to whisper”) took up Pou’s case. Greg Beuerman—a tall, perpetually tan veteran oil-company spokesman and former Republican Party state director—had spent Katrina volunteering at another marooned, Tenet-owned hospital, Lindy Boggs Medical Center. His colleague Virginia Miller told potential clients that one of the goals of successful crisis communications was: “Control!” For now, control meant keeping Pou herself out of the public eye in spite of an avalanche of media requests seeking her side of the story.
Nurses who had worked with Budo and Landry launched their own support fund with the help of a lawyer relative of Landry’s. Landry was single, had lost nearly all her possessions to Katrina’s floodwaters, and had an elderly mother to support. Agents had arrested her at work at a local hospital and arrested Budo at home with her husband and two teenage children.
The two nurses were just weeks away from starting jobs again at the soon-to-reopen surgical institute at Memorial when they were arrested. Tenet representatives told them that their services would no longer be needed, although the company was covering their legal expenses.
Tenet released a statement after the arrests disclaiming responsibility for the alleged crimes. “We have assisted the Louisiana attorney general in all aspects of his investigation,” it said. “If the allegations are proven true, the doctor and nurses named by the attorney general made these decisions without the knowledge, approval, or acquiescence of the hospital or their key physician leaders.”
Hours before Foti’s press conference, Tenet had announced it would be selling Memorial to a local nonprofit hospital system, a deal that had been in process for months. The sale of Memorial and other Tenet New Orleans hospitals for $56.8 million was to be used to help fund a nearly billion-dollar settlement to end investigations for overcharging Medicare in Louisiana and other states. The hospital system also disclosed that its insurers had agreed to pay the company $340 million for Katrina-related damage and business interruption at five of the company’s hospitals.
The nurses’ coworkers received the news of their arrests with pain and disbelief. Fear spread through the tight community. Who would the witch hunt bring down next? They rallied, sent e-mails, compiled call lists, and sought doctors and hospital leaders willing to talk to the media. They aimed high, leveraging connections to oil-business executives who had plenty of money and experience with crises.
ICU nurse Cathy Green took action as soon as Budo’s daughter called her about the arrests. Green was appalled and panic-stricken for her friends. She mustered her colleagues—“We have to do something about this!”—arguing that Foti had attacked the integrity of every one of them who had worked during the storm. And where had his helicopters and boats been when they needed help?
Green went on an errand with Budo and met her lawyer, Eddie Castaing. A criminal lawyer. It was unbelievable. She sat down beside him and looked him in the eyes. She asked him if he had any idea who he was representing. “These are not ordinary people, these are great people. Truly, I will not live long enough to be as good a nurse as they are.”
Most of the other nurses now shied from the media, but Green went on the record with reporters, unafraid of sounding hyperbolic: “They are, bar none, the best nurses we have. If my daughter had been in that storm and needed care, those are the nurses I would have handpicked to take care of her. And had she died in the storm, I would never have looked at them and said, ‘You did the wrong thing,’ ever.”
The nurses’ supporters filled an Internet home page with testimonials to their exemplary careers and a description of the horrors of Katrina at Memorial and the personal sacrifices made.
“Tragically, the rescue helicopters and boats that finally arrived were too few in number and far too late to save some of our patients—and THAT is the crime that happened in our hospital,” the website said. “Please join us as we offer our full support and love to Cheri and Lori. They are not criminals, they are battlefield heroes!”
ONE DOCTOR who was certainly not on the support team was Cyril Wecht, the well-known forensic pathologist from Pittsburgh whose determinations of homicide had cinched the arrests. About a month after they occurred, on a Sunday evening in August, Virginia Rider picked him up at the airport for a three-day meeting with Orleans Parish coroner Frank Minyard.
Wecht came to assist Minyard in classifying the cause and manner of all of the suspicious Memorial and LifeCare deaths, and Minyard promised in return to leaven his New Orleans nights with wine and oysters. Minyard, a loyal friend, kept Wecht involved in the case even as the pathologist awaited trial on the federal charges of public corruption brought against him months earlier (years later all charges would be dropped). Perhaps in part because of this cloud over Wecht’s reputation, Minyard had also invited to the meeting and oysterfest Dr. Michael Baden, another prominent forensic pathologist.
The men gathered that Monday morning in Minyard’s new quarters at the vacant Good Citizens Rhodes Funeral Home, a single-story concrete building with boarded-up row houses and a wig shop as neighbors. Minyard’s ruined offices in the basement of the stately criminal courts building had not been repaired.
The importance of the meeting was clear. Attorney General Foti was not in charge of prosecuting the cases, District Attorney Jordan was, and he had made it plain that he wanted the coroner’s classification of the deaths before bringing the cases to a grand jury for possible indictments. As of that moment, Minyard and his assistants had kept most of the patient death certificates from LifeCare and Memorial “Pending Investigation” or, less commonly, “Accident” by a tick in a checkbox. “Hurr. Katrina Related Death,” some said.
The experts sat around a large table and began considering evidence. Rider and two nurses who had worked the case in the fraud unit with her had prepared charts and tables depicting the drugs found in each body. Robert Middleberg, the director of the Pennsylvania toxicology laboratory where the autopsy samples were tested for drugs, joined them to present his results.
Pou, Budo, and Landry had been arrested on the basis of four deaths, but twenty-three of the forty-one bodies from Memorial and LifeCare analyzed by Middleberg’s lab had tested positive for morphine or midazolam, or both. Middleberg had handled thousands of cases in his career, and the drug concentrations found in many of these patients seemed high to him, made him say to himself, “These numbers are sticking out, sort of like a sore thumb.”
Still, interpreting toxicology results from tests on postmortem tissues was not as straightforward as interpreting blood tests in living patients. The fact that the bodies had sat out in the heat for so long before being sampled could have changed the concentrations of the drugs. Middlebelrg advised his colleagues to consider each patient’s clinical history in conjunction with the lab numbers. The group began poring through the available medical records, case by case.
There were many questions to consider. Did the findings suggest that the patients received a single massive dose of the drugs shortly before death, or repeated doses that allowed the drugs to accumulate, particularly in patients with problems like kidney failure or liver disease, which would have made it difficult for their bodies to process certain drugs? Would the morphine-midazolam drug combination have been contra-indicated in patients with these medical problems? Would large doses of these drugs, known to suppress breathing, be dangerous to any patient not on a respirator? How long would it take for the drugs to decrease the breathing rate and blood pressure, and did this match up with the times of the deaths, to the extent these were known?
The experts went over evidence related to LifeCare patient “Miss Alice” Hutzler, the ninety-year-old nursing-home resident who was being treated for pneumonia. Morphine and midazolam were found in her liver, brain, and muscle tissue, but neither drug had been prescribed, according to her chart, which was kept current until a few hours before her death was recorded on Thursday, September 1, by pathologist Skinner. She had been “resting comfortably” on Wednesday afternoon, and that night her nurses didn’t document any complaints of pain or distress that indicated a need for the drugs.
Hutzler was one of the nine LifeCare patients found on the seventh floor with one or both drugs in their systems. All were seen alive the morning of September 1, and all were listed as dead by Memorial’s pathologist that afternoon.
“Homicide,” Wecht wrote on a sheet of paper under Hutzler’s name, underlining it twice. “Homicide,” he wrote for seven of the eight other seventh-floor patients, including Emmett Everett, Wilda McManus, and Rose Savoie. The last patient, Kathryn Nelson’s mother, Elaine, whose records indicated she was close to death on Thursday morning, he marked as “Undetermined.” Baden thought all nine were homicides.
The group also considered the deaths on the eighth floor in the ICU. Jannie Burgess was the seventy-nine-year-old nurse with advanced metastatic uterine cancer who had been found by Dr. Ewing Cook when he climbed the stairs in the heat on Wednesday, August 31. Burgess’s medical chart showed that a nurse gave her 15 mg of morphine seven times on Wednesday between 2:10 p.m. and 3:35 p.m., based on spoken orders from Cook. This amount—105 mg over one and a half hours—was more than five times the maximum she had ever received in an entire day during her hospitalization, according to her chart. She had received morphine only irregularly in small doses as needed for pain, at most once an hour and typically only two to four times a day. The largest dose a nurse had ever documented giving her at once was 6 mg. From seven that morning until Cook’s arrival that afternoon, a nurse had only seen the need to give her a single injection of 4 mg. But because she had already been receiving some amount of morphine and because of her advanced cancer, she was “not a clear, strong case,” Wecht wrote in his notes. He marked her death as undetermined and recommended that she not be included in any legal case. The bodies of two of the three other ICU patients who were left behind with Burgess after the other ICU patients were airlifted also tested positive for morphine, but at lower concentrations, and Wecht did not consider these homicides.
Besides the nine patients who remained on the LifeCare floor and Burgess, the group also reviewed nine Memorial and LifeCare patients whose deaths were recorded by pathologist Skinner on the second-floor lobby during the evacuation on Thursday, September 1. Every one of them, plus a tenth, Merle Lagasse, tested positive for midazolam and five of them for morphine, too. Among the dead were the three patients whose prescriptions for large amounts of morphine were signed by Anna Pou and found during the search warrant, including Carrie “Ma’Dear” Hall, former truck driver Wilmer Cooley, and forty-one-year-old engaged mother of four Donna Cotham. (Despite their morphine prescriptions, two of the three tested positive for midazolam only, not morphine.) On the autopsy report the experts reviewed, Cotham had a recent needle-puncture wound in the crook of her left arm, but her decomposed body revealed little evidence of her severe liver disease.
Essie Cavalier, the stroke patient who said “Mama” and whose former nurse had been upset by what she saw being done to her on the second floor, had also died and had what Wecht considered high levels of morphine and midazolam in her tissues. Wecht marked her death and many of the other second-floor patients’ deaths as likely homicides, too, pending review of hospital records. But Rider and her colleagues still had not managed to obtain many of those records. Tenet had turned over most of the LifeCare charts but, according to correspondence from one of its attorneys, had been “unable to locate” records of many of the Memorial patients who died on the second floor “despite diligent efforts.” He suggested the charts might have been removed with the patients’ remains. Rider had checked with a mortuary worker who had helped remove the bodies and was told the records were not taken.
Dr. Horace Baltz’s longtime patient was found not to have had morphine or midazolam in her system. Only traces of Tylenol and her anti-Parkinson’s drug were found, suggesting that her death had been a natural, if unexpected, one. About five of the forty-five bodies found at the hospital had, available evidence suggested, been of patients whose deaths occurred just before the disaster. In addition to the forty-five adult bodies, seven apparently stillborn specimens had been recovered from the hospital—they did not consider them.
Five patient bodies did not have toxicology test results. At least one of those, a Memorial patient, had been found deceased on the second floor by the ATM on Thursday afternoon, September 1, after having been seen alive there by the infectious diseases doctor that morning. She had an IV catheter in her right forearm at autopsy. It was frustrating to think they might never know whether she, too, had received the drugs.
The first day of the meeting passed with no participation from the district attorney’s office. Hearing firsthand from the experts was apparently not a priority for those who might be presenting the case to the grand jury. On the second day, two assistant district attorneys finally showed up. The lead prosecutor on the Memorial case was a young, dark-haired man with slightly crossed eyes, Assistant District Attorney Michael Morales. He had prosecuted homicides for only about two years and arrived at the coroner’s office with his boss, ADA Craig Famularo.
“Whaddya have?” one of them asked.
Their manner—particularly the short, testy Famularo’s—struck Rider and the two forensic pathologists as unusually hostile. The experts were accustomed to ass-kissing from prosecutors, but these attorneys acted suspicious, skeptical, and uninterested. The lawyers left after about half an hour. “Obviously these guys don’t want to do anything,” pathologist Baden commented to coroner Minyard. Minyard, in contrast, seemed to agree with the experts that many deaths at Memorial were homicides. What was striking was the pattern. Almost every patient who died after the helicopters and boats arrived on Thursday morning and whose bodies were tested—including all nine patients on the LifeCare floor, nine on the second-floor lobby, and Merle Lagasse—were positive for the drugs.
MICHAEL MORALES HAD been following the pleadings in the case for his boss, District Attorney Eddie Jordan, since the previous fall when Pou’s attorney, Simmons, had sued to keep her post-storm conversations with the Tenet attorney private. While Simmons sent Morales courtesy copies of his filings in the case as it proceeded, the attorney general’s office usually did not. Unlike in the Medicaid fraud unit, where investigators and prosecutors worked in teams, at the district attorney’s office, prosecutors typically did not get involved in the investigation of a case—usually conducted by police—unless specifically requested to do so by the investigative agency. The attorney general’s office had not sought to involve Morales in the Memorial investigation. Now he was realizing what a big job lay ahead of him.
He had mixed feelings about it. After Katrina’s floodwaters ravaged the DA’s building, the staff had decamped to a cramped office suite with stained carpets and folding tables for desks. Morales saw his new surroundings as improved—the carpet in the DA’s old office had been held together with duct tape. Morales was only five years out of law school and punctuated his sentences with the occasional snort, exasperated sigh, or other sound effect. He was one of a few homicide prosecutors in a city with one of the highest murder rates per capita and a poor record of bringing perpetrators to justice. He was also smart and well regarded by his colleagues. The high-profile Memorial case was starting to absorb all of his time.
While the attorney general’s office had kept the DA’s office in the dark throughout the yearlong investigation, now DA Jordan, in his first term in an elected position, was receiving nasty letters from the public for being associated with it. Jordan hardly needed another unpopular cause. Soon after taking office as the first African American district attorney in Orleans Parish in 2003, he had fired dozens of white employees and replaced them with black ones. Now he was fighting a federal judgment against him for racial discrimination.
Jordan was caught between powerful forces in the Memorial case. Tenet had money invested in the New Orleans political scene. Pou’s lawyer, Simmons, as well as several of the Tenet lawyers, were, like Jordan, former US attorneys. On the other side, the attorney general had saddled the case with his reputation. Foti and Jordan had markedly different interests. Foti needed to prove he had done the right thing by arresting the three. Jordan would benefit if the case just went away.
But Jordan didn’t tell Morales to make the case disappear, and the young ADA had his own reasons for lacking enthusiasm. Under Louisiana law, intentionally killing someone as alleged in the arrest affidavit was murder. Morales understood why the deaths at Memorial had merited an investigation. Still, these weren’t typical homicides. The military had been called in to restore order in the city, with Governor Blanco warning that their M-16s were “locked and loaded,” the troops more than willing to shoot and kill, “and I expect they will.” Morales felt he was being asked to apply civilian law to a war zone.
This feeling was both professional and personal. Morales’s former student clerk, a New Orleans police sergeant who studied law in night school, was under investigation in the shootings of unarmed civilians on New Orleans’s Danziger Bridge on the tense, chaotic, sixth day after the storm. It first appeared he had been responding to a call to assist police who had been shot there. Morales considered him a very good cop and a very promising budding attorney. Good people, Morales thought, shouldn’t necessarily be charged for the bad things they did in a crisis.
Morales’s ambivalent feelings about the Memorial case contrasted with Rider and Schafer’s undimmed enthusiasm for it. In August they had slapped Pou’s outspoken boss, Dr. Dan Nuss, with a subpoena seeking to find out what he knew.
Morales did not view this as helpful collaboration. As prosecutor of the case, it was he who should be signing subpoenas. They had stepped on his toes and irritated him. Just as the AG’s staff had not cared to involve the DA’s office while investigating the Memorial deaths, the DA would now return the favor. Morales drafted a letter from DA Jordan to AG Foti asking his office to cease investigating because it “would not be advantageous to the case” until the grand jury investigation was under way.
THE ORDER to stop investigating came as a severe blow to Virginia Rider and Butch Schafer. They had hoped that even after the DA claimed his right to prosecute Pou, Landry, and Budo, he would invite the AG’s team to assist. Moreover, Schafer regarded the investigation as having spider-webbed out in multiple directions, and he wanted to follow the radii out to other doctors, nurses, and staff, to explore the potential for additional charges and arrests. Schafer also wanted to probe a potential corporate thread of responsibility for the deaths, even a conspiracy. He and Rider hoped the DA would grant immunity to some of the health workers who had proffered potentially critical testimony.
By the time of the arrests, Rider and her partners had accumulated on the order of 50,000 pages of documentary evidence. The Orleans Parish DA’s office requested a case summary, and Rider set about preparing it with the help of other agents. The report grew longer and longer as she worked on it.
Rider’s colleagues, who’d had previous dealings with the DA’s office, told her that people there would not be interested in receiving something so detailed, but Rider insisted on being thorough. If the DA’s prosecutors were serious about seeking indictments, why wouldn’t they want as much information as possible? Attorney General Foti caught wind of the internal disagreement and called Rider into his office to broker a compromise. She would write a brief executive summary as well as a more detailed report keyed to the records. The task of organizing the documents began to monopolize her days.
AS THE FIRST ANNIVERSARY of Katrina approached, Dr. Horace Baltz turned each day to a new installment of a five-part Times-Picayune “tick tock” story about events at Memorial by reporter Jeffrey Meitrodt. The series was based on more than three dozen interviews with people at the hospital and others, including Anna Pou’s eighty-three-year-old mother, Jeanette, who said she had once thought her daughter “too tenderhearted” to become a doctor. What Anna Pou was being accused of having done, the elder Pou said, was out of character. “Maybe one of my other children could have done something like this, but not this one. Not Mrs. Soft Heart.” The articles also introduced readers to rescuers Mark and Sandra LeBlanc and the story of Mark’s mother, Vera LeBlanc, whom they had come to Memorial to save.
One of the articles said incident commander Susan Mulderick had declined a request for an interview through her attorney. Without Mulderick’s voice, reporter Meitrodt had little way to offer her perspective. He wrote that she had provided her colleagues with “appallingly incorrect information” at Thursday morning’s meeting by “telling them that they could expect no rescue that day,” something his sources contended, but which others would later suggest was not true. He also repeated what the LifeCare nurses had said about Mulderick, from the affidavit.
Baltz realized Mulderick would be upset and called her to offer his support. He had worked with her for decades, thought highly of her, and was close to her family, having long ago helped save one of her younger sisters from dying of a brain aneurysm. That sister’s gift of an Audubon print depicting waterfowl was one of his few possessions to survive Katrina’s destruction.
The tough nurse had bawled like a child after reading the article. She was a proud administrator, fiercely loyal to the hospital, and the accusations in the attorney general’s affidavit devastated her. Baltz consoled her as best he could.
Baltz met again with fellow Memorial Medical Center staff doctors planning for the possibility of the hospital’s reopening under new ownership. While the subject of what had happened after the storm remained off limits, one colleague detailed his efforts to ensure the attorney general’s defeat in the next election. Some of the doctors positioning themselves for leadership on the hospital staff were ones Baltz had overheard talking conspiratorially, he’d thought, about the need to “convince the nurses” on Thursday morning, September 1. Baltz opposed the idea of a cover-up. He felt that his value systems and ethics were no longer in step with those of his colleagues. There was a new aroma in the air, and he disliked it. On the back of a news story printout about Tenet’s fraud settlements, Baltz scribbled a note for medical staff president Reuben Chrestman. It was Baltz’s note of resignation from the medical staff of the hospital where he had worked more than forty years.
Baltz heard a rumor that there was an invitation-only memorial service and catered reception on the Katrina anniversary in one of Memorial’s garages. After briefly smarting over having been left out, he resolved to organize a simpler, more respectful way of memorializing the victims a few days later.
On September 1, the anniversary of the deaths, he laid two small wreaths at the corner of Napoleon and Clara Streets. He held hands with his sister/receptionist to pray for the dead. A few security guards came to join them.
The hospital was weeks from its partial reopening and Baltz caught sight of its new CEO, Curtis Dosch, the tall, reedy former CFO who had reminded Dr. John Thiele of Jed Clampett when they had rested together in the cancer center during the disaster. Baltz thought Dosch looked ill at ease as he raced past their small congregation.
IN THE DAYS leading up to the anniversary, lawyers filed petitions in the names of the Memorial and LifeCare dead. Medical malpractice claims and personal-injury actions typically had to be made within a year of an incident. Just weeks after the disaster, eager attorneys had begun soliciting potential clients. Advertisements ran in newspapers, on television, and on billboards as far away as Houston and Atlanta. One lawyer had even ridden around New Orleans on her scooter planting campaign-style lawn signs on street medians and near hospitals. “I know black people—I was raised by black women,” the attorney, Tammie Holley, a white woman, wrote in an e-mail to colleagues. The families, she wrote, “would drive by the hospital to see ‘where mama died’ in search of answers.” She also obtained a mailing list of displaced voters from the NAACP. “The rest is history.” She wrote that a fellow attorney came into her office and said, “I can smell the money.”
The law allowed family members to seek compensation not only for the damages caused to them by their loved one’s wrongful death, including loss of love and affection, but also for the pain and suffering the patient experienced before dying. The first suit related to Memorial had been filed just over a month after the storm. In January 2006, the plaintiffs’ lawyers amended the claim, seeking status as a class action on behalf of all patients who died or were injured by the allegedly poor design of Memorial’s backup electrical system, and the inadequacy of its evacuation plan and patient care during the disaster. A judge would determine whether to certify the class over any objections from the defendants. LifeCare, made a defendant alongside Memorial and Tenet, sought to have the case heard in federal instead of state court. Some attorneys viewed federal courts as more favorable to out-of-state corporations. In support of this move, the company’s lawyers argued that as New Orleans flooded, a federal official, Knox Andress, had advised LifeCare administrators that FEMA would rescue their patients. During the litigation Andress clarified that he was in fact a nurse in Shreveport who did regional disaster-preparedness work under a federal grant, but that FEMA had never employed him. The court ruled he did not qualify as a federal officer. The case was remanded to Louisiana district court.
Many families filed their own claims outside of the proposed class action. Merle Lagasse’s daughter Karen described in her suit how an unknown health-care worker, “Jane Doe,” had removed her mother’s oxygen mask before she was passed through the machine-room wall.
The clinical language of the petition only heightened its pathos. “At that time, decedent yelled out that she could not breathe,” it said. Both Merle Lagasse and her daughter pleaded for the mask to be replaced, “but Jane Doe refused such a directive.”
Karen Lagasse had made it out of Memorial by boat only to end up at the overcrowded New Orleans Convention Center where, in fear for her life, she slept outside on the street.
Someone told her there that her mother had died at the hospital, but she refused to believe it. She recruited friends to call emergency rooms from Louisiana to Texas, searching for ten frantic days before she finally received a call from a Tenet official who told her that her mother was on a list of people thought to have died during the evacuation. Months later, she was allowed to return to the hospital garage to sift through debris for her mother’s personal effects, surviving artifacts of the life they had shared in a Lakeview neighborhood now lost to flooding.
She buried her mother on Valentine’s Day, in a metal coffin the funeral home workers sealed with a rubber gasket to confine the odor of decomposition. Lagasse argued with them to remove the body bag before placing her in the coffin. They refused. The indignity of this upset her, as did the thought that her mother had not, at the very least, become the “beautiful corpse” of Ewing Cook’s morbid imagination.
A full year later, Karen Lagasse had still not been told what had happened to her mother after their traumatic separation. The interview the attorney general’s investigators had conducted with her mother’s doctor, Roy Culotta, was not shared with her. She believed her mother to have died from his negligence and that of the hospital that had failed to prepare properly for a disaster. She wondered how long her mother had suffered in the heat and whether she had continued to receive oxygen and pain medicines.
Karen Lagasse sued Culotta; the hospital; its CEO, René Goux; “Jane Doe”; and internal medicine department director Dr. Richard Deichmann, who her lawyer found had written and self-published a book, Code Blue: A Katrina Physician’s Memoir, revealing his key role in the evacuations. Deichmann was Karen Lagasse’s own internist and she was at first surprised to learn her attorney had sued him in her name.
The family of stroke patient Essie Cavalier also sued the hospital. Her daughter, who had worked as a medical malpractice attorney, became depressed after obtaining Cavalier’s toxicology results. She wondered aloud how someone could have decided for her mother that she wasn’t going to make it. Where were the checks and balances?
Families of three of the four LifeCare patients mentioned in the arrest affidavit—including Emmett Everett and Rose Savoie—filed civil suits not only against Memorial and LifeCare but also against Pou, Budo, and Landry and, in two cases, Susan Mulderick and Steven Harris, the LifeCare pharmacist. The suits variously alleged euthanasia, inadequate backup power supply, failed evacuation policies, and abandonment.
Emmett Everett’s wife, son, and daughter also named Pou’s employer, Louisiana State University. “He was awake, alert and oriented throughout the relevant time period,” the suit said.
“Who gave them the right to play God?” Carrie Everett asked on a CNN Katrina anniversary broadcast. “Who gave them the right?”
The Everetts had not learned of Emmett’s death until fifteen days after it occurred. They asked for a trial by jury. Kathryn Nelson’s mother, Elaine, was not one of the four patients whose deaths were attributed to the injections in the arrest affidavit. However, her family knew from interactions with the attorney general’s office, and from having viewed the toxicology reports, that the laboratory had found a large concentration of morphine in her tissues. They were outraged that after living an upstanding life and doing so much to help others, she had apparently died as if her remaining moments had no value. Kathryn’s brother Craig was an experienced white-collar and health-care attorney nearing retirement who had the knowhow, resources, time, and motivation to find out exactly what had happened to his mother—and make someone pay.
Angela McManus, Wilda’s daughter, felt differently. The prospect of having to talk to a lawyer on a regular basis about her experiences at Memorial was too upsetting, and she left it to a sibling to file a lawsuit. She needed to focus on getting well. She had little energy. Anhedonic, she found it difficult to escape the narcosis of her television screen.
Instead of suing, she had done what felt more important to her, though it nearly destroyed her—she spoke publicly about what had happened to her seventy-year-old mother, became again her mother’s voice. She was outraged at suggestions that the health workers were relieving suffering in the last moments of life—who told them it was the patients’ last moments, patients they had never even treated?
She felt her family and her mother had been violated even though her mother might not have had much time left. Family members had been deprived of the chance to be with her when she died, to see her body and sit vigil over it at a wake—it was so badly decayed, the family had decided to have it cremated. As a result, Wilda McManus could not have the kind of funeral she merited, at the church, St. Raymond’s Catholic on Paris Avenue, around the corner from their house, where she had sung in the choir and everybody knew her. It would have been, Angela knew, a standing-room-only crowd.
After the arrests, Angela believed that having listed her phone number made her the only LifeCare family member the media could readily find in Baton Rouge.
“I gotta tell this,” Angela said to herself, and took calls from radio reporters on the phone. She allowed television reporters to troop in and out and aim their bright lights on her framed family photographs. She posed, gazing off the patio balcony, for them to record their background B roll.
“I don’t believe that a person with a sane mind could make this decision,” she told an ABC reporter for Good Morning America.
“At least now I’ll be able to get some answers,” McManus said to an Associated Press reporter after the arrests. “For months, I haven’t known what happened to my mom. I need some answers just to be able to function.
“Euthanasia is something you do to a horse, or to an animal. When you do it to people, it’s called murder.”
Reporters engaged her from morning until night the day after the arrests, working her last nerve. They lined up in the parking lot of the Baton Rouge apartment where she was staying; the two-story New Orleans duplex where she had grown up was destroyed. The wind had blown the roof down into the bedrooms, and floodwaters had come up from below. She had stopped paying insurance on it after she left her job to become her ill mother’s caretaker.
She brooked no challenge, no skepticism or disrespect. She knew exactly what story she wanted to tell, the story she had lived with from the day she had been forced to leave her mother’s bedside, the story the world finally wanted to hear. “I’m going to play the devil’s advocate,” a male reporter said.
“No, you’re not,” McManus told him. She threw him out. “Neither the devil or his advocates are welcome here.”
The families’ suits stalled pending the outcome of a challenge to a similar lawsuit at another hospital, Pendleton Memorial Methodist in New Orleans East. The suit alleged that the hospital had been negligent in preparing for and responding to the storm, a premises liability claim that one uninvolved insurance attorney described as “a new theory of liability against health-care institutions—lack of emergency preparedness.” The hospital’s lawyers were arguing that the case should proceed instead as a medical malpractice claim. That would advantage the hospital: Louisiana medical malpractice law required a panel of three doctors to review each case before it could proceed, and it capped compensation at $500,000 per hospital or other health-care provider—most of which was typically covered by a patient compensation fund.
Patients and their families weren’t the only ones seeking legal recourse. While Louisiana workers’ compensation law protected employers from claims by their employees, some Memorial workers, including a group of neonatal ICU nurses, nevertheless sued, variously attempting to hold parent company Tenet responsible or to exploit the law’s exception for intentional tort. LifeCare staff and their families at the hospital also sued Memorial, as they were not its employees.
The ICU nurse who had previously written a critical letter to Tenet’s CEO, Dawn Marie Gieck, claimed in her suit that Memorial and Tenet had failed “to see to the care and safety of the people stranded at the Hospital” and failed to evacuate properly: “Since Katrina I have experienced emotional distress, which makes it impossible for me to work as an ICU nurse or [in] any other kind of nursing. I have been diagnosed with post-traumatic stress disorder. Although I have attempted to work nursing jobs, I could not stay on.”
However, some Memorial evacuees were grateful, not bitter. The premature neonate whom Dr. Juan Gershanik, earning the nickname “the Argentinian Kangaroo,” had held against his body and ventilated by hand in a rescue helicopter, had thrived over the year at his new home in Houston. Baby Boy S’s mother returned with him to New Orleans to reunite with the doctors and staff who had saved him, on the first anniversary of the storm, initiating a yearly tradition.
THE NBC TELEVISION news magazine Dateline carried an anniversary report about Memorial’s sister hospital, Tenet-owned Lindy Boggs Medical Center. The conditions had been similar to those at Memorial—no power, almost no communications, delayed rescue. Water had poured over the hospital’s floodgates with the drama and variegation of a natural waterfall.
With no helipad and no assurance of ambulances a boat ride away on dry ground, hospital staff at first ferried only able-bodied non-patients from Lindy Boggs. On Wednesday, firefighters arrived and began directing drivers of the small dinghies and pleasure boats to take patients to a berm by a nearby post office to be picked up by helicopters. The roughly 150 patients were divided into categories: A, B, and C. Some doctors and nurses thought the C’s, the most critical patients, should be rescued first. But the doctors and firefighters in charge decided to leave them for last. The concern might have been that there would not be medical care for them at the drop points. For the Dateline story, reporter Hoda Kotb asked firefighter Chris Shamburger the reason for the triage protocol. He offered little explanation: “That’s the way things are done.”
Dr. Glenn Johnson, acting chief of staff, described drawing letters on people’s foreheads with a permanent marker. “I’m just having horrible thoughts, like, ‘Is this what happened, like, at Auschwitz or something?’ You know, where people were just marked like cattle.”
Johnson took pity on a paralyzed patient whose husband offered to carry her—Johnson turned her C into an A, “my one act of mercy for the day.” Lindy Boggs staff helped carry patients down multiple flights of stairs in sheets. The firemen were instructed to retreat before sundown due to safety concerns. They left critically ill, hospice, and long-term acute care patients behind and never returned. A handful of medical staff and other rescuers came back on Thursday, September 1, and began taking survivors out on a small, stolen flatboat. Other patients went out on Friday.
The story focused on Dr. Johnson’s agony over the decision making, his outrage at the dearth of outside help, his ingenuity in replenishing medicines, and the intensity of his work in the deadly, sapping heat. When he flew out on Wednesday, August 31, rather than being delivered to safety, he was dropped off with his patients on the I-10 freeway cloverleaf.
Anna Pou thought the Dateline program was phenomenal. It gave the public a sense of what it felt like to be trapped as a doctor and face such difficult decisions. Many people, including one of her sisters, called her to say they had not appreciated what she had gone through until watching it. The report painted a sympathetic picture of the medical professionals. The flooding itself was the enemy.
The story mentioned that the attorney general’s office was looking into events at Lindy Boggs. Virginia Rider had originally helped out on the investigation, which uncovered an even more troubling story than what Dateline had portrayed.
The criminal inquiry centered on what had happened after nearly all of the 175 staff members escaped. At the fire officials’ suggestion, they had put on gowns and drawn the triage symbol “C” on themselves to look like patients so they could be evacuated by military helicopter. Some took pictures of one another grinning, patient gowns tied loosely over their scrubs, bright-red triage letters marking their chests, hands, and foreheads.
A respiratory therapist asked what would happen to the patients being left behind. She was told: “At some point, someone will have to euthanize them.” An anesthesiologist, James Riopelle, was approached about euthanizing patients and said the idea was crazy. This isn’t the Titanic, he thought, Lindy Boggs isn’t going down. We’re only a mile from dry ground, with plenty of drinking water. Rescue efforts had been slow, but he knew they would eventually gain traction, despite rumors that officials were turning away civilian volunteers and their boats at the border of the city out of security concerns.
Riopelle, a past president of the state humane society coalition, had quietly decided earlier in the day to disobey the authorities and stay. There was no way he was leaving behind the sixty or seventy pets at the hospital, including his own, just because some twenty-year-old fireman from Shreveport had ordered him to go. He’d made a pledge to himself years earlier, after touring the Holocaust concentration camp Dachau, to refuse to comply with misdirection. Two other hospital staff members with pets—a nurse director and a respiratory therapist—decided to stay behind with him.
It had never occurred to Riopelle that the rescuers wouldn’t take all the patients, but he and his two colleagues found themselves alone with the pets and roughly twenty-five patients who were extremely fragile, many with DNR orders. Riopelle saw some patients die, and he dragged three bodies to the hospital’s entrance to deter looters.
The first evening, Riopelle went to see a twenty-eight-year-old patient who was awaiting a liver transplant. Her mother was with her, having also disobeyed the order to leave, and she said her daughter was in pain. The pharmacy was locked, but another staff member had given Riopelle morphine to use in case any pets needed to be euthanized.
Having nothing else, he offered the woman, Elaine Bias, a 10 mg dose of morphine she could use on her daughter. He told her bluntly that the drug might kill her daughter, because she had liver failure and the liver was needed to break down the drug. He did not know what a safe dose would be, and he wanted Bias to be very cautious about giving her daughter the medicine, which he said would help her sleep.
Bias recalled, contradictorily, that Riopelle said she should put her daughter to sleep and demonstrated how to inject the morphine into her IV line. Bias refused. Her reaction was colored by an earlier conversation, she told investigators. She had learned from a staff member after an administrative meeting that certain patients were not going to be evacuated. The woman allegedly told her, “They will give them morphine to put them to sleep.”
Jessie Lynn LaSalle, the wife of another young patient, one who had just undergone a liver transplant, also recalled being offered morphine by Riopelle repeatedly, something Riopelle later said he did not recall. She said he had told her nobody was coming to rescue her husband and she should let Riopelle give him morphine so he could “go at ease.” Furious, she sent Riopelle out of the room. She said he told her if she changed her mind she could find him upstairs with the animals.
LaSalle’s husband was on a ventilator rigged to operate pneumatically on the hospital’s supply of oxygen now that the power was out. Because of this, Riopelle later pointed out, morphine—even if he had offered it—would not have depressed the man’s breathing or posed a danger to him.
Riopelle denied having euthanized any patients or given any morphine, and he told investigators that Bias and LaSalle might have misunderstood his intentions because they were feeling abandoned. Several of the patients who remained in the hospital were on life support, breathing with the help of ventilators powered by compressed gas. Bias alleged that she saw these being turned off and patients without accompanying family members being injected with what she believed was morphine, then dying.
Approximately twenty-seven bodies were recovered at Lindy Boggs, including many from a separately owned long-term acute care hospital, Genesis Specialty (a few patients had died before the storm). While the total number of deaths in the building was lower than at Memorial, the proportion was similar, as there were fewer patients overall. Toxicology tests revealed the presence of morphine in nearly a quarter of twenty-one bodies tested; however, only one had levels that appeared to be unusually high.
Both of the young transplant patients went out by boat the next day, but they died weeks later of infections that their families believed stemmed from the abandonment and lack of care. They filed medical malpractice claims against Riopelle and the transplant doctor—both of which were later dismissed—as well as the hospital and its owner, Tenet. The claims mentioned the “strong suggestion” that the patients be euthanized.
THE ATTORNEY GENERAL’S staff had also continued to look into the case of the patient who had been abandoned for dead and later found alive at Touro Infirmary. This was the patient mentioned in a letter to Touro’s CEO, copied to the attorney general’s office, predicting: “Someday the truth will be told.” The patient in question was Odun Arechaga, a seventy-year-old man with a regal face who had suffered a heart attack before the hurricane, falling unconscious and sustaining brain damage while awaiting rescuers who had difficulty finding his house. Neurologists had advised his daughter to “let him die.” She refused, and in the days before the storm, he regained the ability to breathe on his own and became somewhat more responsive.
In the 1960s Arechaga had founded the occult Sabaean Religious Order in Chicago. He imbued its practices with ancient philosophies and mysteries and referred to himself as a priest of the Am’n, the hidden and deep. In her book Drawing Down the Moon, NPR reporter Margot Adler compared a fantastic Sabaean marriage feast at his temple in 1975 with Fellini’s Satyricon, which, Arechaga playfully reminded her, was “merely a movie.” He had been a brilliant storyteller fascinated by disasters. He wrote and produced elaborate plays for holiday festivals where the children of his order would reenact cities being destroyed by Sumerian earthquakes and the eruption of Mt. Vesuvius.
Witnesses told investigators they had found Arechaga on a soiled gurney on Touro’s third floor on Friday, September 2, with small Styrofoam coffee cups inexplicably taped over his ears, and his medical record at his feet. National Guardsmen wheeled him out of Touro and summoned medical staff from a smaller hospital across the street, screaming that they had a patient who needed help. When rescuers examined him, they found his airway nearly completely blocked and the tracheotomy collar around his neck saturated with dried, crusted green-and-yellow sputum. His heart was beating slowly, his extremities were cold, and his oxygen level was low, his body failing.
The rescuers suctioned his airway, changed the collar, and removed his soiled clothing. Arechaga opened his eyes as he was loaded into an ambulance.
Touro Infirmary’s staff, not knowing how high the waters would rise, or how quickly, had carried eighteen critical patients like Arechaga in the heat from the ground floor, which still had backup power, to the third floor, which had lost power when the hospital’s generators—some of them decades-old—began failing. They had not been tested to work for such a long period, were running on possibly tainted fuel from the government, and were not configured in many areas to support the air-conditioning system (which also relied on the crippled city water system for its chillers). When the battery backups on ventilators were exhausted, patients were bagged by hand, but many didn’t tolerate being off the machines, and died.
Some staff later described a unique and horrifying triage system: those patients who could not say their names were not given IVs—an allegation that haunted the family members of a man with advanced Parkinson’s disease who could not speak and had died unexpectedly at the hospital. A number of patients were tagged “black”—too sick to move—and were not taken to the helipad.
Touro Infirmary had remained reachable by land after Katrina, unlike Memorial and Lindy Boggs, but its workers had been similarly frightened by reports that violence was breaking out in the city. Medical workers from Touro and a separately owned long-term acute care unit within it, Specialty Hospital of New Orleans, told the investigators that while many of their colleagues worked heroically and tirelessly to rescue patients, even returning to the hospital to do so, some units’ entire staff had driven out of the hospital garage, leaving their patients behind. After the storm, some nurses were fired and were reported to the nursing board for abandonment.
A Touro emergency room nurse who was put in charge of triage later said that members of the National Guard arrived at the end and commanded the last remaining staff to leave for their safety, reassuring them that soldiers would stay behind to protect the remaining two dozen or so patients. Cars lined up with snipers at the lead. “At some point you just have to save yourself,” the nurse, Brent Becnel said. Although the professionals were upset and didn’t want to leave, they resigned themselves to the situation. “If you get hurt, when the hospital can open again and you’re not there, what good are you?”
A Touro doctor, writing anonymously to the attorney general’s office, described being told by a military commander who had supervised Touro’s evacuation that Arechaga was among fourteen patients considered “too critical.” Medical workers “shot them full of morphine and left them behind.”
Toxicology tests on some of the bodies found at Touro and at Specialty Hospital of New Orleans revealed high levels of morphine and midazolam, the same drug combination used at Memorial.
THE STORIES from Memorial, Lindy Boggs, and Touro hospitals stood in contrast to the reaction of staff at New Orleans’s public Charity Hospital. Charity had flooded; lost power, functioning plumbing, computers, telephones, and elevators; lacked a helipad; and had no corporate overseers to assist, however belatedly. It had taken until Friday afternoon, September 2, to transfer all the patients from there, compared with Thursday, September 1, at Memorial. Approximately twice as many patients were present at the public hospital’s two campuses as compared with Memorial, with a lower ratio of staff to patients. However, fewer than ten patients died.
Doctors said that staff continued to provide medical care to patients in their rooms until the end, despite similar or even worse conditions of existential threat, including a gunman reported to be on a nearby roof, disrupting the evacuation, and the presence of more than a hundred psychiatric patients inside. People urinated on stair landings. Convoys attempting to reach the hospital over water were reportedly shot at and looted. News reports suggested the hospital had been evacuated when it hadn’t. Soldiers had brought additional ventilator-dependent patients to the hospital.
In articles and conversations, hospital workers chalked up their resilience to a number of factors, including morale-building—leaders held meetings every four hours in the lobby for everyone from doctors to janitorial staff. They put on a talent show by flashlight. They painted and laughed.
Hospital officials had drilled for a Category Three hurricane and levee failure and purchased, with the help of federal preparedness funds made available after the 9/11 attacks, several portable generators, oxygen-powered ventilators, and a ham radio system. Special disaster training had been provided to hospital security officers.
The Charity staff was populated by crusty characters accustomed to the comparatively Spartan, chaotic, and occasionally threatening conditions of an inner-city government hospital. Workers included Vietnam War–era ER doctors known for their bravado and machismo. Nearly everyone had experience getting creative with all-too-common resource limitations.
At Charity, workers siphoned gas from cars to fuel ten small portable generators. These were used to power ventilators and cardiac monitors in the ICUs, keeping critically ill people alive, including a very premature baby. This contrasted with Memorial, where patients were ventilated by hand with Ambu-bags after the power failed, as two similar generators were only later put to use for powering lights and fans in common areas and the helipad, not medical equipment.
Charity staff also kept up the hospital routine despite the bizarre conditions, continuing to provide services like physical and occupational therapy and encouraging workers to maintain shifts and a regular sleep schedule. This signaled that the situation was under some degree of control and kept panic to a minimum. There was an active effort to stem rumors. “You can only say it if you’ve seen it,” staff were told.
Perhaps most important, Charity’s leaders avoided categorizing a group of patients as too ill to rescue. The sickest were taken out first instead of last.
RICK SIMMONS’S EFFORTS to construct a defense for Anna Pou were unflagging but handicapped by a deficit of evidence from the prosecution. In mid-September he wrote Assistant District Attorney Michael Morales, asking for the umpteenth time for copies of the forensic test results performed on the bodies. Simmons referred to it as an exchange: in return for being given the laboratory and autopsy results, he would offer his own experts’ input on the case.
ADA Morales declined the offer, reminding Simmons that Pou had not yet been indicted. When and if she was, her attorney could move under Louisiana law to gain access to certain evidence that the DA had amassed. But they were not yet at this point in the process. Morales was happy to look at Simmons’s hand if he wanted to show it, but he wasn’t prepared to show his.
Simmons repeatedly reminded Morales that the DA’s office had “absolute discretion” in the case, could reject it out of hand, could simply send it back to the attorney general as a refusal. As Morales underwent a crash course in medical care under crisis, Simmons seemed always at the ready to supplement his information, sharing the defense’s concepts of the case.
Morales was learning so many new terms, he began to keep a glossary: Agonal Breathing; Double Effect; Euthanasia; Palliative Care; Triage. Special prosecutors, division chiefs, and the attorney general had the glossary at hand for reference whenever they met to discuss the evidence and what remained to be done. In a normal case, one charging conference would be held. The Memorial case was on its way to five.
As hard as Morales found it to apply civilian criminal law to a “war zone,” he was impressed at how well the medical ethical concept of the double effect tracked with the legal concept of specific criminal intent, which was required to prove murder in Louisiana. Were the injections intended to harm and kill, or to palliate? He began to view the case from this perspective.
Simmons continued to fight to ensure that what Pou said to the Tenet attorney and media relations chief after Katrina would not be revealed. At the end of September, a Louisiana appeals court sided with him. The information remained protected as Butch Schafer petitioned the state’s Supreme Court to hear the case again.
Simmons also guided Pou, who now harbored great enmity for the media, through an interview with the influential CBS television magazine show 60 Minutes. The camera crew and producer arrived to film Pou twice. Nervous, she changed her mind and refused to see them the first time.
Simmons arranged for an audio recording of her entire interview with Morley Safer so that nothing could later be taken out of context in court should 60 Minutes be served with a subpoena. As the broadcast date approached, he was confident the segment would show her in a good light, and he helped orchestrate a chorus of support from professional medical organizations to appear in the days after it aired. Befitting his role as mastermind of Pou’s defense, Simmons even took issue with a plan by the American Medical Association—an influential membership organization of doctors—to release a statement the day after Sunday night’s show, arguing that a much-anticipated Monday Night Football broadcast marking the return of the New Orleans Saints to the restored Superdome would draw local news attention away from it.
Meanwhile, Attorney General Foti’s public information director, Kris Wartelle, had also helped organize an interview with her boss, confident that the broadcast would be a hard-hitting investigative work that would fairly present his side of the story. She had been impressed by 60 Minutes reporter Ed Bradley’s work with her office on a story examining why police in the majority white suburb of Gretna prevented a largely black crowd of New Orleans residents from crossing a bridge to relative safety there after Katrina. It took Wartelle by surprise to learn that Morley Safer, not Bradley, would be reporting the Memorial story after what she believed to have been an internal fight. Safer’s young producer assured Wartelle the story would still portray Foti as a hero.
Safer arrived to conduct the interview. “Morley’s in a bad mood,” the producer warned Wartelle.
When Safer began questioning the attorney general under the klieg lights, it became apparent the story would be critical toward him. Foti was angry at Wartelle, who argued with Safer for about an hour after the interview and sent a scathing e-mail to a top CBS network official. She felt she had been lied to about the reporter’s intentions.
The segment aired Sunday night, September 24, 2006. Pou’s appearance was a sensation.
The camera closed in on her attractive face. Her lips trembled slightly, their corners turned down in a pained grimace as she stared intently at Safer. “I want everybody to know that I am not a murderer,” she told him, speaking slowly and nodding her head to emphasize her words, as if the American public were a child whom she needed to make understand something vital.
Safer’s face showed pity and sympathy. He asked what it was like going from being a respected surgeon to an accused criminal. “It completely ripped my heart out,” she said, on the verge of tears. “My entire life I have tried to do good.” She argued that she had done the best she could under dreadful conditions that resulted from being abandoned. She didn’t believe in euthanasia, she said, but in comfort care—ensuring that patients don’t suffer pain. Asked by Safer if she ever lost hope, Pou was indignant. As a cancer specialist, she said, “I am hope.”
The attorney general, meanwhile, appeared stiff and distant behind thick glasses, his face shiny and lit from the side, highlighting his wrinkles. Safer asked him, “Would you not think that in case of murder, the perpetrators would try to conceal their actions?”
“Maybe they just didn’t think that anybody would ever find out,” Foti replied, crooked teeth showing between chapped lips.
Doctors from around the country were incensed. “Your Attorney General, Mr. Foti, is a complete buffoon for prosecuting these professionals,” a doctor from Virginia, John M. Kellum, wrote to the webmaster of the attorney general’s website during the broadcast.
Spokeswoman Wartelle filed a complaint with Kellum’s medical school dean, describing his e-mail as “rude and unprofessional,” and she sent a message back to Kellum. “If you don’t want allegations of wrong doing investigated, then maybe you should contact the hundreds of eyewitnesses we interviewed […] We cannot comment on the evidence which puts us at a disadvantage when viewers lash out without one inkling of the evidence in this case.”
As Simmons had helped orchestrate (albeit on the Monday) the American Medical Association released a statement describing Pou as a member in good standing and the case against her as complex and sharply contested. One of the organization’s top executives was a head and neck surgeon like Pou and worked on her behalf behind the scenes. “The AMA is very proud of the many heroic physicians and other health care professionals who sacrificed and distinguished themselves in the aftermath of Hurricane Katrina,” the statement said.
Meanwhile, a doctor on the board of the Louisiana State Medical Society who had known Pou since childhood lobbied for her within that organization. Members pressured the group to donate to Pou’s support fund, and when legal strictures precluded that, employees posted information about Pou’s defense fund on the organization’s website, which carried a statement suggesting that the strength of Pou’s television performance be used to gauge her innocence.
Following the airing of the 60 Minutes interview with Dr. Anna Pou, the Louisiana State Medical Society (LSMS) is confident that Dr. Pou performed courageously under the most challenging and horrific conditions and made decisions in the best interest of her patients. Her recent statements regarding the events clearly show her dedication to providing care and hope to her patients when all hope seemed abandoned.
It concluded by commending her “valiant efforts” during and after Katrina.
WAS IT HER trembling lips? Her appealing eyes? The fact that the entire medical community to which coroner Frank Minyard belonged appeared to support her? Something about the 60 Minutes broadcast gave Minyard the urge to meet this lady, to chat over a cup of coffee and try to get a handle on her. He had done this before with people accused of crimes he was investigating.
At some point in a case he felt he had to go beyond science, go instead by his gut, which sometimes aligned conveniently with political interests and the interests of his buddies. Once, in 1990, he had suggested that a criminal who had died after being badly beaten while in the custody of Minyard’s policeman friend, could have sustained his injuries because he “slipped on the floor.” After Katrina, CNN and the Times-Picayune had sued him for refusing to release autopsy records related to the controversial Danziger Bridge police shootings.
Minyard was now seventy-six years old, had served as elected coroner for thirty-one years, and had recently garnered another term (after going to court to get his sole challenger disqualified), but community opinion and his image still mattered greatly to him. An obstetrician-gynecologist by training, Minyard was inspired by a Catholic nun to devote his life to what he called “the business of serving suffering humanity.” He gave up his private doctor salary and gained a measure of public adulation. For decades, he peered into bodies in the basement office of the colonnaded criminal courthouse, emerging in cowboy boots to play jazz trumpet at city charity events. He kept posters of his younger self in a white suit playing trumpet on a levee and would sign them for visiting reporters.
Minyard was proud of his office and its history and liked to tell people that “coroner” meant “keeper of the crown,” the person who collected money for the king when someone died. “It’s in the Magna Carta,” he’d say. He considered his job to be different from that of medical examiners or pathologists who use “pure science with blinkers” to draw conclusions about the causes and manner of suspicious deaths. He, being elected, was a man of the people. He felt it was his duty to take into consideration the potential effect of his rulings on the community.
Minyard received calls after the 60 Minutes piece asking why he was even investigating and why the attorney general was doing what he was doing to “that good woman.” Minyard had watched his close friend Dr. John Kokemor, a former member of his staff, appear on 60 Minutes and in other media to defend Pou and the honor of the hospital.
Minyard invited Pou’s lawyer to bring her to his office for a visit.
Pou sat across from Minyard. On his desk was a Bible, on his wall a crucifix. All around them were framed pictures of life in their native city. Soon it was Old Home Week as they discovered mutual friends and chatted about several members of Pou’s large Catholic family with whom Minyard was close. They reminisced about Pou’s deceased father, the family doctor, who had been especially kind to Minyard and had referred patients to him when Minyard opened his ob-gyn practice.
They talked for about an hour and Pou enchanted him. He considered her a “very ladylike lady, a real, real Southern charming lady.” She told him that she had been trying to alleviate pain and suffering. Pou’s lawyer was there, and Minyard was careful not to put her on the spot with direct questions about what she had done. The conditions she described at Memorial took Minyard back to the days he spent trapped in the criminal courthouse after Katrina. The city had flooded as he was driving back to work. He got out of his car and made it there by wading, swimming, and hitching a ride on a boat. He was stuck for four days. How precious food and water had seemed. How impossible it was to sleep at night with gunshots echoing all around him.
Minyard’s feelings were less sympathetic than he let Pou know. He believed he would have at least tried to save Emmett Everett. There must have been a way to get the 380-pound man downstairs. It also bothered Minyard that few of the elderly patients who died had been receiving or seemed to have required pain medication before they were injected.
The first week of October, the expert consultants submitted their reports on the Memorial and LifeCare deaths. In their letters, forensic pathologists Wecht and Baden formalized the strong opinions they had expressed in Minyard’s office in August. The LifeCare deaths were the result of drug injections. Minyard, seeking additional information to help him make his decision, had also sent the patients’ medical, autopsy, and toxicology records to three other experts for an independent review.
“Homicide,” Dr. Frank Brescia, an oncologist and specialist in palliative care, concluded in each of the nine cases. “Homicide,” wrote Dr. James Young, the former chief coroner of Ontario, Canada, who was then president of the American Academy of Forensic Sciences. “All these patients survived the adverse events of the previous days, and for every patient on a floor to have died in one three-and-a-half-hour period with drug toxicity is beyond coincidence.”
A local internist concluded that while medical records and autopsies for several of the patients revealed medical issues that could reasonably have led to their deaths, most of the patients’ records did not. In his report to Minyard, he wrote that it was “evident” that Emmett Everett was “in stable medical status with no clear evidence that death was imminent or impending.” (Pou’s lawyer said that Everett almost certainly died of an enlarged heart, not an overdose of medication.)
The day after the last of the forensic reports was received in late October, Pou’s attorney, Rick Simmons, documented spending close to two and a half hours and $360 in expenses at Minyard’s office. Perhaps the sympathetic coroner had allowed him to make photocopies of the lab results that Simmons had been trying to get from the assistant district attorney. Two weeks later, Pou’s brother Michael, a trustee of her defense fund, which had been moved after LSU had warned it could not legally be operated from the public university, wrote a $3,300 check from her fund to William J. George, PhD, a toxicologist brought on to analyze the evidence.
Simmons’s dogged efforts to protect Pou met with more success in early November. The Louisiana Supreme Court denied the attorney general’s appeal of the lower court’s decision protecting Pou’s initial post-storm discussions with Tenet’s attorney and media relations chief. That case was finished. Whatever Pou had told the Tenet employees at a point less clouded by the passage of time and the pressures of prosecution—perhaps an honest accounting of her decisions and actions—would, it seemed, remain forever hidden.
ANOTHER VISITOR to coroner Minyard’s office was Dr. Horace Baltz. He came in mid-November after Minyard called him one day and asked if they could meet. Minyard had seen a copy of a letter Baltz had sent to the attorney general’s investigators encouraging them to continue looking into potential mercy killings at the hospital.
The men shared that they were having sleepless nights. Baltz, too, had known Pou’s father. As a high school delivery boy, Baltz had fetched prescriptions for him. Minyard felt obligated to him, Baltz gathered, but was swayed by the fact that five independent forensic experts had agreed that the deaths Pou was accused of were homicides. The case would be going to a grand jury and then, presumably, to trial, which, judging by the calls Minyard was getting every day from around the world about the case, would attract the media in droves. “It would be the biggest thing since the Super Bowl in New Orleans.” To Baltz, the coroner appeared to be juggling a hot potato. Emotionally, Minyard felt bound to Pou’s father. Politically, Minyard was loath to court controversy. Intellectually, like Baltz, he seemed to think the deaths were homicides. It was odd that the coroner shared so many details about the case with a stranger. The next day Baltz sent Minyard an article about Memorial and a letter of thanks:
For months—like a voice in the wilderness—I have felt out of synch with my professional peers, as relates to the Memorial situation. Like the lyrics of the popular Christmas song […] I asked, “do you hear what I hear; do you see what I see?” I began to question my moral values and ethics. However, yesterday’s visit was most therapeutic, has restored confidence in my judgement, and strengthened my resolve. Thank you. Last night was my first full night’s REM sleep.
Baltz, like Minyard, cared deeply about his city and his place in it. He expressed that by clinging to high moral virtue, even if that necessitated an occasional confrontation. As a local nonprofit hospital chain, Ochsner Health System, completed its purchase of Memorial and partially reopened it under the Baptist name, Richard Deichmann sent a letter of appreciation to Memorial’s medical staff. This incensed Baltz, particularly given that he himself had not received an invitation to the anniversary memorial ceremony. His pointed, two-page reply to Deichmann began by calling his compliments “kind, but inappropriate.” Baltz had worked at Baptist for every hurricane except Betsy, when he had volunteered at a high school medical station. To him, service in a disaster was pro forma, not “valorous or uncommon.”
True valor would have been to oppose euthanasia; to lock all narcotics and sedatives securely; to erase all orders “DNR”; to dissuade naive nurses enlisted to execute orders that ordinarily would have been rejected; to assure that evacuees have secure destinations before being dispatched; to adhere to professional ethics at all times; to guard against aberrant behavior of staff members; to demand the Chief Executive Officer and staff be held responsible and visible; and to pray that Devine guidance grace us with sound judgement, serenity, and composure.
The scenario at Memorial, he wrote, was a horror, but an instance of the horror others faced throughout the Central Gulf Coast region. “Our situation was not unique, but somehow our reactions and responses regrettably were,” he wrote. “Other hospitals with similar stress had more success than we. Was there some inherent flaw in our leadership? Look to ourselves and our behavior. Don’t indict government abandonment, while ignoring corporate neglect. Don’t cite the dread of lawlessness surrounding the hospital, when internally dreadful disregard for law and ethics may have become endorsed policy.”
On New Year’s Eve at a local restaurant, Baltz spotted ICU nurse Cathy Green and her sister, whom he also knew, at an adjoining table. He shared how disturbed he was over what her nurse colleagues had been accused of doing, and Green turned kinetic. Oh no, she blasted back, they did the right thing. She was helping rally support for them. He saw she was a true believer.
AROUND THE TURN of the New Year, New Orleans was rocked by two widely publicized killings. Dinerral Shavers was a well-known jazz musician, teacher, and father in his twenties who spoke out against gun violence and was starting a high school marching band to help disadvantaged teenagers. He was shot when picking up his stepson who had called for help. Helen Hill was a Harvard-educated independent filmmaker who had returned to New Orleans after losing her home to Katrina. She was shot by an intruder just feet away from her toddler son and doctor husband, who was also shot but survived. Hill’s murder was the sixth in the city in twenty-four hours. Both her and Shavers’s killers escaped justice. After some witnesses refused to testify against the suspect in the Shavers case, he was found not guilty and released.
The two deaths drew public attention to extreme dysfunction in the district attorney’s office and police department and led to calls for reform. In 2006 the city had the highest murder rate in the nation at 72.6 per 100,000. Gary, Indiana, was a distant number two, with only 48.3 per 100,000. Of the 162 willful killings that year, only a third were followed by arrests, which had thus far led to very few convictions. Nearly 3,000 suspected felons were released automatically by state law simply because the district attorney and his overburdened assistants had not charged them within the allotted sixty days, sometimes for lack of evidence from the police. Serving two months in prison for allegedly committing a serious offense in New Orleans was common: “Sixty days and I’m out,” the saying went. There was even the very occasional “misdemeanor murder.”
District Attorney Jordan had reportedly never tried a criminal case before taking office. His homicide unit was struggling to get a handle on the murder problem as its staff left in droves for better-paying work.
Signs along the avenues posted by a pastor read:
THOU
SHALT
NOT
KILL
It frustrated the chief prosecutor in the Memorial case, Michael Morales, to think about how much effort and attention were going into prosecuting the doctor and nurses from Memorial when so many violent criminals were menacing the public.
ON A FOGGY day in late December, Anna Pou hit traffic on her way to a hospital in New Orleans. She called Brenda O’Bryant. “I don’t know if I’ll get there before they take him to surgery.”
James O’Bryant had another major operation planned for his facial cancer. It was nearly six months after Pou’s arrest, and there appeared to be no movement on her case, but Pou had not ventured back to practicing medicine and performing surgery. Her days were occupied instead with teaching and administrative duties in Baton Rouge, part of helping revamp the Louisiana State University training program for head and neck surgery now that the major teaching hospitals in New Orleans were closed.
Pou reached the hospital and raced to where she thought the O’Bryants would be waiting. She rounded a corner to see James on a transport gurney being wheeled down the hallway toward the operating room. “She’s here!” he shouted, and sat up to greet her. She hugged him.
“I’m going to be right here when you come out,” she said. She sat in the waiting room with Brenda and the family. Hours later, they rejoiced when James made it through all right.
This couple whose problems were so much greater than her own treated Pou with awe, gratitude, and reverence. They didn’t seem to mind that Pou had never told them what happened at Memorial. “My lawyer won’t let me get into conversations about this, but I can tell you this,” Pou had said to them: “I loved all my patients. I would never do anything to hurt any one of them.”
The O’Bryants believed her and not the allegations. The attorney general had punished them, too, by taking away the doctor they trusted in their hour of need. Brenda O’Bryant—a bright, well-spoken woman convinced that she was neither—told coworkers at the lace factory where she worked that she would not believe that Pou had killed her patients even if Pou herself confessed she had done it; she knew Pou as a Christian who looked to God for guidance, and someone like that did not take other people’s lives.
If being arrested like a criminal had completely ripped Pou’s heart out, the O’Bryants and her other friends, coworkers, and family members were helping to restore it.
Pou needed support in this winter of uncertainty. Not knowing what would happen was, she would later tell reporter Julie Scelfo, “the most effective form of torture.” The first days of 2007 brought a new drama. A “spoiler blog” predicted that an upcoming episode of the popular television series Boston Legal would feature a doctor accused of killing patients after Hurricane Katrina in New Orleans. Pou was about to be tried by a jury of television writers.
Rick Simmons badgered the producers before the broadcast. Believing he could not influence the script, he argued instead that the very idea of the program was insensitive, not only to Dr. Pou but also to the family members of the dead. The timing was inappropriate, airing only a little over a year after the alleged events, with a grand jury investigation about to get under way.
The producer refused to disclose the verdict, saying only that the show’s attorneys rarely lost a case. Simmons asked for a disclaimer to be broadcast in the local area to help blunt any negative effect on potential jurors.
A last-minute campaign to stop the network from airing the episode was launched by Pou supporters including Dr. Michael Ellis, an influential fellow otolaryngologist and the former president of the state medical society. Ellis attempted to rally colleagues in an interview for a Louisiana medical newsletter. He noted that public pressure had recently resulted in the cancellation of a book and a two-part television special, O.J. Simpson: If I Did It, Here’s How It Happened. Simpson had been arrested for the murder of his wife and her friend and acquitted in a criminal trial, but was viewed by many members of the public as responsible for the deaths.
“It’s abhorrent to all of us in the medical family that some of our most respected colleagues, well known personally to so many of us, could be so horribly and unjustly attacked in such a vicious and inappropriate manner,” Ellis said to the Louisiana Medical News reporter. He had taught Pou and known her since she was a child, although the article did not mention this. “Shame on our entire legal community for allowing such a travesty to occur.”
The day before the Boston Legal episode was set to air, Simmons spent hours making calls and writing e-mails. On show day, he went to the local ABC station for an interview. It wasn’t until he saw the program that he learned its conclusion.
The doctor on the show—Donna, not Anna, a middle-aged white woman with the same haircut as Pou—“had five patients faced with very painful deaths if she didn’t do something,” one of her television lawyers said. “I need somebody to first establish my client as an underdog—not easy, because she’s a doctor—and then, keep her out of prison.” Just what Simmons was trying to do.
Looters had stolen drugs. Corpses were rotting. “The hospital was like a death camp.” In his closing argument, TV attorney Alan Shore claimed that New Orleans was not part of America after Katrina. Different norms applied. “During that horrendous week, the United States of America was nowhere to be found.” Only the doctor, by helping the patients go peacefully, retained her “innate sense of humanity.”
When Simmons saw the program he ripped up his copy of the unused version of the show’s ending. The jury in the television case found the doctor not guilty of first-degree murder.
After the broadcast, medical professional organizations released more statements of support for Pou and the two nurses, as if the fictional show proved their innocence. “Their acts were those of heroism,” said the American College of Surgeons. The chairman of the department where Pou had trained, a grandfatherly man who was deeply fond of her, had written the statement. It went so far as to assert that Pou, who had voluntarily stopped performing surgery, had been denied her constitutional right to due process because she was “forbidden to practice—a situation that gives the impression that she has been deemed guilty without review of the records.”
DR. EWING COOK was elated by the Boston Legal episode. “Boy, that’s good for her,” he said aloud when he watched it. “I hope that’s what goes on in the grand jury in New Orleans.” The writers had captured what he felt. Nobody who was not there at Baptist could judge.
Cook was still feeling the effects of his time there. He’d had surgery, for kidney stones that he attributed to dehydration. He had tried not to drink much while at the sweltering hospital to avoid having to go to the bathroom.
Cook’s lawyer had managed to keep him out of trouble. After the subpoena, he had never been called in for an interview. Cook worked a couple of hours a day now at two rural hospitals. He and his wife had moved far west of New Orleans and 110 feet above sea level, out of range of any storm surge a hurricane might cast against the earth again.
WHILE FRANK MINYARD had commissioned many forensic reports on the Memorial dead, he lacked the views of an ethicist, someone who could situate the alleged acts of the health professionals in a panorama of history, philosophy, law, and ever-changing societal norms. This was a perspective Minyard wanted, even though his job by law was merely to decide whether the deaths were technically homicides—caused by human intervention. In advance of a grand jury, he was doing his own unnecessary, unbidden—but, he felt, vital—investigation.
Minyard reached out to the noted bioethicist Arthur Caplan, who had appeared on CNN soon after the allegations emerged and opined that a jury might consider “very, very extenuating circumstances” a defense for mercy killing. Now Caplan reviewed the records of the nine LifeCare patients on the seventh floor and concluded that all were euthanized, and that the way the drugs were given was “not consistent with the ethical standards of palliative care that prevail in the United States.” Those standards make clear, Caplan wrote, that the death of a patient cannot be the goal of a doctor’s treatment.
Caplan knew that the history of thought, law, and policy on aid in dying could be arrayed along two axes. One was whether or not the patient had requested to die, making him or her either a voluntary or involuntary participant. The other was whether the aid in dying came in an active form, such as the giving of drugs, versus what was referred to as “passive” withdrawal or non-initiation of life-sustaining treatment. The poles of these two axes were known as voluntary, involuntary, active, and passive euthanasia.
Whether killing someone who wishes to be killed is an act of mercy or an act of murder was a question that had divided humanity from ancient times, millennia before the advent of critical care medicine focused the modern mind on it. In a story related in the Bible, King Saul, injured in battle, asked his armor bearer to finish him off. He refused, “for he was sore afraid.” Saul then fell on his own sword and called out to a passing young man, “Stand over me and kill me! I am in the throes of death, but I’m still alive.” The young man did so and later told the story to King David, saying, “I knew that after he had fallen he could not survive.” David condemned the young man to death for his actions.
Physician involvement in killing had also long divided opinion, back to the time of ancient Greece and Rome. Hippocrates’s thoughts eventually held sway, and many medical schools still honor his tradition by having graduating doctors swear an oath descended from the one attributed to him: “I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan.…”
This marked an important transition in medicine. “For the first time in our tradition there was a complete separation between killing and curing,” anthropologist Margaret Mead told the eminent psychiatrist Maurice Levine, who recounted their conversation in a widely quoted 1961 lecture reprinted in his book Psychiatry & Ethics. “Throughout the primitive world, the doctor and the sorcerer tended to be the same person. He with the power to kill had power to cure, including specially the undoing of his own killing activities. He who had the power to cure would necessarily also be able to kill [….] With the Greeks the distinction was made clear. One profession, the followers of Asclepius, were to be dedicated completely to life under all circumstances, regardless of rank, age or intellect—the life of a slave, the life of the Emperor, the life of a foreign man, the life of a defective child.”
Mead added: “This is a priceless possession which we cannot afford to tarnish, but society always is attempting to make the physician into a killer—to kill the defective child at birth, to leave the sleeping pills beside the bed of the cancer patient.” Mead was convinced, Levine said, that “it is the duty of society to protect the physician from such requests.”
The Christian acceptance of mortal suffering as redemptive only solidified the Hippocratic stance. In notable historical cases even the exigencies of the battlefield could not shake doctors’ exclusive commitment to preserve life. After Napoleon Bonaparte’s troops were struck by plague in Jaffa, in May of 1799 he told his army’s chief medical officer, René-Nicolas Dufriche Desgenettes, that if he were a doctor, he’d put an end to the sufferings of the plague patients and the danger they represented to the army. He would give them an overdose of opium, a product of poppies that contains the opiate painkiller morphine. Bonaparte would, he said, want the same done for him. The doctor recalled later in his memoirs that he disagreed, in part on principle and in part because some patients survived the disease. “My duty is to preserve life,” he wrote.
Less than two weeks later, Turkish troops closed in on their position. Bonaparte ordered that those in the hospital not strong enough to join the retreat be poisoned with laudanum, a tincture of opium. Dr. Desgenettes refused. The fifty or so patients left in the hospital, seemingly close to death, were poisoned instead by the chief pharmacist, but apparently he gave an insufficient dose. The Turks found several alive in the hospital and protected them.
Although stories of wartime mercy killings of injured soldiers frequently appear in fictional novels and movies, it is extremely difficult to find a real, documented case of physician involvement. In the nineteenth century, however, a movement arose to challenge the physicians’ absolutist views on preserving life. In the United States and Europe, some non-physicians criticized doctors’ penchant for prolonging lives at all costs. They advocated using anesthetic drugs developed in the 1800s not only to ease the pain of dying but also to help it along. Known as “euthanasiasts,” these advocates called their proposal “euthanasia”—a Greek-derived term (eu = “good,” thanatos = “death”) that English-language writers had for centuries used to mean “a soft quiet death, or an easy passage out of this world.”
Many doctors argued against the proposed use of their skills to bring about dying, fearing the public would lose trust in the profession. Allowing death to claim patients naturally struck them as far different from causing patients’ deaths. “To surrender to superior forces is not the same thing as to lead an attack of the enemy upon one’s own friends,” editors of the Boston Medical and Surgical Journal opined in 1884.
Still, the movement for euthanasia grew in the United States and Europe, and it morphed. Some advocates noted the great burdens the sick, mentally ill, and dying placed on their families and society. Helping them die would be both merciful and a contribution to the greater collectivist good. Why not, some asked, extend to terminally ill people what few would deny their sick animals, regardless of whether they were capable of expressing the wish to die? These were lives not worthy of living.
These ideas found particular resonance at a time of widespread economic privation, suffering, and hunger in post–World War I Germany. Attention focused on the costs of caring for the elderly, disabled, mentally ill, and other dependent individuals, many warehoused in church-run asylums. (Also couched in terms of public health was the growing international support for eugenics—improving the gene pool of the society—and these individuals were seen as a threat to the purity and superiority of the German race.)
In an effort to save money and resources during wartime in the early 1940s, the Nazis took the ideas to their logical extreme and implemented programs of involuntary euthanasia of these populations. By some counts up to 200,000 people with mental illnesses or physical disabilities were executed, the Darwinian notion of survival of the fittest employed to justify the murders. After these programs were shut down, their administrators were sent to orchestrate mass killings of Jews and others in extermination camps in Poland.
Doctor and nurse mass murderers of more recent ilk, some who have killed many dozens of patients before being stopped—Howard Shipman, Michael Swango, and Arnfinn Nesset among them—have similarly targeted the very sick and elderly, as well as those unable to communicate and neglected by their families. On arrest, some have invoked similar justifications, claiming to have euthanized suffering patients to put them out of their misery.
Psychiatrists have profiled these killers, identifying them as grandiose narcissists who tend to bristle at criticism, or to see themselves as saviors or gods unable to do wrong, or who get a thrill out of ending suffering and deciding when somebody should die.
Decades after World War II, arguments for legalizing voluntary euthanasia again gained traction in several European countries. In 1973, a Dutch court ruled that euthanasia and physician-assisted suicide (whereby a doctor provides medicine that a person can take to commit suicide) were not punishable under certain circumstances, and imposed only a symbolic, suspended sentence. These acts were decriminalized in the 1980s and formally legalized by a vote of the Dutch parliament in 2001. Similar laws passed in Belgium in 2002 and Luxembourg in 2009. In Belgium, one pharmacy chain made home euthanasia kits available for about €45, complete with the sedative drug used at Memorial, midazolam; along with the anesthetic drug sodium thiopental (Pentothal), which Dr. Ewing Cook used at Memorial to euthanize pets; and a paralyzing agent that stops breathing. The kits were intended for use by doctors in patients’ homes. Doctors could prescribe them for specific patients who had signed a request for euthanasia at least a month in advance, after having discussed it with two independent doctors. The Dutch and Belgian laws did not require a terminal medical condition for a euthanasia request to be granted.
In each country, legality rested on different guidelines, which at first appeared to offer important safeguards. For example, in the Netherlands, euthanasia was supposed to be limited to people who made repeated requests to die and were experiencing, as certified by two doctors, unbearable suffering without the possibility of improvement. However, a study of the program showed these rules were not always followed, and a small proportion of people were killed each year without having made an explicit request. There were few prosecutions in these cases. Were the Dutch merely more honest about their practices? Or did the legalization of one form of euthanasia bleed, inexorably, into the other, darker kind?
While it was a problem that some ill or injured people had no option of participating in the program because they could not speak for themselves and had not let their wishes be known, involuntary, active euthanasia was, at the time Caplan made his review of the LifeCare deaths, not legal anywhere. Taking the life of someone who had not expressed the wish to die would contravene the principle that people have a right to decide what doctors can do to their bodies. It would also put the physician or other decision maker in the position of judging what quality of life is acceptable to another human being. The possibility of abuse (for example, insurance payouts for family members) was too great.
However, while not legal, in practice what was considered acceptable in the Netherlands had expanded to include this type of active euthanasia. The 2002 Groningen Protocol for Euthanasia in Newborns, devised by leading Dutch medical authorities, outlined conditions for taking the lives of very ill or brain-damaged babies with the substituted consent of their parents. While this was not explicitly legal, doctors who followed the guidelines were not prosecuted. Babies—albeit sick, disabled babies, but babies nonetheless—were being euthanized openly again in Europe.
The Netherlands’s premier advocacy and counseling organization for euthanasia and choice in dying, the NVVE, promoted social acceptance of euthanasia under conditions that were not yet legal in the hopes that they someday would be. People, particularly the elderly, who were reasonably healthy, but who were becoming an increasingly dependent burden on their families, had a profoundly diminished “quality of life,” and felt “after many years on this earth, life has been completed,” should be entitled to aid in dying, according to the group. So, too, should people with dementia and difficult-to-treat chronic psychiatric illnesses. A Dutch court approved of euthanasia for a woman with advanced dementia who repeatedly communicated her wish to die.
In contrast with the European countries that formally legalized euthanasia in the first decade of the twenty-first century, in the United States, intentionally ending a life to relieve suffering remained illegal. The American Medical Association’s influential Code of Medical Ethics continued to prohibit active euthanasia.
The debate in the United States focused instead on what some call passive euthanasia, the withdrawal of life support and withholding of medical treatment. In 1975, not long after the widespread adoption of high-tech intensive care medicine and only a decade and a half after the trial of Nazi leader Adolf Eichmann in Jerusalem had focused attention on the horrors of mass euthanasia, the parents of a comatose young woman, Karen Ann Quinlan, asked doctors in New Jersey to remove her from a ventilator. She had stopped breathing and suffered brain damage after taking the sedative Valium and drinking several gin and tonics with friends. She was not expected ever to recover, and friends and family recalled her having said she would never want to be kept alive that way. Doctors refused to discontinue life support, but the New Jersey Supreme Court ruled that this could be done on the basis of Quinlan’s constitutional rights to privacy and liberty, as exercised by her father. The respirator was turned off.
Quinlan breathed on her own and survived nine more years, but her case proved a landmark. Subsequently, state courts ruled in other cases that the right to refuse treatment flowed from established rights to privacy, liberty, self-determination, and informed consent. The right to refuse treatment had already been established, in the case of some Jehovah’s Witnesses, on the basis of freedom of religion.
The climate of American medicine had changed since the Clarence Herbert case Dr. Baltz and his colleagues had discussed at Memorial in the 1980s. Doctors treating the comatose Mr. Herbert had been charged with murder for withdrawing life support and intravenous fluids, even as they contended that this accorded with his prior wishes and the requests of his family members, who did not want him on “machines.” A California appeals court decided the case should be dismissed because the burdens to Mr. Herbert of continued treatment, although minimal, outweighed its benefits to him, as his prognosis was “virtually hopeless for any significant improvement in condition.” Stopping treatment, the court ruled, taking its lead from a presidential ethics commission, was indistinct from never having started it and was not in this case equivalent to active euthanasia. Shutting off an ordinary IV, the court likewise decided, was no different from shutting off a ventilator, as long as the treatment was legitimately refused by a patient or surrogate decision maker.
The case set a binding precedent only in part of California, but these concepts had gained wide acceptance by the time of Katrina. The US Supreme Court in 1990 considered the case of thirty-three-year-old Nancy Cruzan, severely brain damaged in a Missouri car accident years earlier, whose parents sought to remove the feeding tube that nourished her. The Court agreed by a five-to-four margin that the right to liberty included the right to refuse life-sustaining medical care and die. However, the ruling allowed states to require clear and convincing proof of the patient’s wishes to discontinue care, not just what was believed to be in the patient’s best interest. A Missouri judge allowed Cruzan’s nutrition to be discontinued after acquaintances gave evidence this would have been her wish. The case led to increased adoption of living wills and advance directives that documented treatment preferences prior to a catastrophe.
The next battleground was assisted suicide: whether it should be legal for doctors to prescribe drugs certain patients could take to end their lives. Having the option of a painless death at a time of one’s choosing could ease the senses of terror, loss of control, and suffering experienced by people with grave progressive diseases such as metastatic cancer, advocates argued. They questioned why only people who relied on life support or medical treatments that could be withdrawn should have the freedom to choose a dignified death with medical assistance.
Opponents countered that removing life support allows nature to take its course whereas assisting suicide is intended to shorten life, long considered unethical and akin to active euthanasia. Hundreds of years after sorcery’s amputation from medicine, did Americans want doctors again to conjure death? Could the societal embrace of suicide for terminally ill or disabled people lead members of those groups to feel more worthless, devalued, and abandoned? Would it discount the meaning to be had from family reconnections, insights, and various forms of spiritual enrichment and personal growth that may accompany death’s approach?
Physician-assisted suicide became legal in Oregon in the 1990s (and later in Washington and Vermont, and was deemed by Montana’s state supreme court as not legally forbidden there), but at the time of Caplan’s review, most American doctors continued to reject the practice as unethical. To address the very real issues of pain and suffering in the last stages of deadly illnesses, hospitals and doctors increasingly offered palliative and hospice care programs. These employed an array of medical treatments, counseling, and support to address symptoms and keep patients comfortable rather than to attempt to cure them. Hospice was considered a philosophy and a movement to care for the terminally ill and their families, which took root in the United States in the 1970s after being developed in Britain. Because patients had to agree to forgo treatments aimed at extending their lives, caring for them was thought to be cheaper, too, and Medicare covered hospice care beginning in 1982.
For the minority of patients whose suffering failed to yield even to the most determined efforts to treat it, another strategy had emerged: terminal sedation. The idea was to render patients unconscious until death. A proposal that would have explicitly legalized the practice upon request of “mortally injured and diseased persons” had been made and voted down by the Ohio legislature in the first decade of the 1900s, but interest in it surged again in the 1990s.
Terminal sedation seemingly fulfilled the goal of relieving terminally ill patients’ discomfort without intending to kill them, but it did not do away with all ethical bugbears. A sedated person was unable to eat and drink, which would eventually lead to death, and unless the drugs were withdrawn and the patient awakened, it would be impossible to know whether the symptoms had abated. Still, in a 1997 decision that there was no constitutional right to physician-assisted suicide, the US Supreme Court supported the legality of terminal sedation. While Dr. Minyard deliberated about Memorial, the American Medical Association’s top ethics body was considering a proposal to endorse terminal sedation as a last resort under the more palatable term “palliative sedation.” (It later backed the practice in 2008.)
Some observers suggested the Memorial health professionals, if indicted, could claim palliative sedation as their defense. However, Pou’s attorney, Rick Simmons, had for the time being decided not to have Pou publicly wade into a discussion of end-of-life care issues. Louisiana, he felt, was too fundamentally Christian for the kind of discussion that would entail. It was too risky, too hot a topic.
Simmons had been frustrated to find no useful guidelines for comfort care in disasters from the American Medical Association. “I’m defending a doctor here,” he’d told leaders of the organization. “I don’t see any standards. There’s nothing there for me to go to a courtroom and say she followed these standards.” The AMA did have guidelines on palliative care, but they called for consultation with family members and documentation of the medications given, neither of which Pou had done. “Why is it that you can’t do something,” Simmons asked, “that addresses the situation when you cannot document the file, when you cannot talk with the relatives?”
Ethicist Arthur Caplan concluded that what had happened at Memorial did not fit within the purview of palliative sedation precisely because of these guidelines. If the women had intended solely to ease pain and discomfort on Thursday, September 1, then he would expect at least some documentation that the medicines were given gradually and with care. The fact that doctors, including Pou, had recorded some medication orders by hand throughout the disaster before midday on Thursday meant that, while difficult, this was not impossible. Even war hospitals kept records. The apparently rapid introduction of large amounts of drugs known to be lethal, without any prior use in these patients, concerned him. It also disturbed him that at least some of the patients did not appear to have been terminally ill. No effort seemed to have been made to consult with the family members who were present at Memorial.
He was unconvinced that the sole option to relieve any pain or suffering was to kill.
Caplan had told CNN viewers that judges and juries rarely convicted physicians and non-physicians for murder when they believed the motive for hastening a death was compassionate. Studies in 1973 and in 1987 of twenty cases of alleged euthanasia found that only three resulted in prison sentences, and those were marked by unusual circumstances including that the victim may not have been terminally ill and suffering. Similarly, juries have acquitted—sometimes on technicalities—physicians who have intentionally killed patients with air emboli, potassium chloride lethal injections, and expired Amytal Sodium sedatives. One of the few doctors to see jail time was Jack Kevorkian. He escaped conviction for first-degree murder several times in the 1990s, even as he hooked up more than 100 suicidal patients to his death machines. Kevorkian finally goaded a judge to send him to prison for second-degree murder after he videotaped himself injecting drugs into Lou Gehrig’s disease patient Thomas Youk in 1998 to put him to sleep, paralyze his muscles, and stop his heart, killing him. Previously the patients themselves, not Kevorkian, would press a button or handle on his machines to release a sequence of deadly drugs or carbon monoxide gas. Kevorkian later said he wanted to go to jail to make a point and shift public debate from assisted suicide to euthanasia.
THE HEADLINE of the February 1, 2007, New Orleans daily newspaper the Times-Picayune reported that coroner Frank Minyard had made his decision on the Memorial cases: “N.O. coroner finds no evidence of homicide.”
Virginia Rider heard the news on the radio on her way to work and couldn’t believe it. She stopped to buy the paper. What she read made her cry. A successful murder prosecution in Orleans Parish typically required a coroner’s medical determination of homicide—simply that a death was caused by the actions of another human being—without regard to fault or legal responsibility. It was a step toward a criminal finding of homicide, in which a Louisiana court assigns fault for a killing. The DA’s people had told Rider more than once that they wouldn’t pursue this case without a homicide ruling from the coroner.
At the office Rider handed the article to her colleague Butch Schafer, shaking. “Get your purse,” he said. “We’re going to New Orleans.”
Rider slapped the paper on Minyard’s desk. She sat down before him in tears. She was convinced by everything he’d told her that he believed the deaths were homicides. “How could you do this?” she asked. “How could you say this?”
There was so much local support for Pou, Minyard explained. A public homicide declaration would stir the media into a frenzy. That would look bad for the city.
What will it look like for New Orleans when this all comes out, Rider asked, when the world knows that the truth was swept under the rug? A coroner’s job was to discover and report the truth!
Minyard told her he had to consider what was best for his city, whose reputation had already suffered so much damage.
But did his own reputation concern him more?
Rider had never witnessed the level of politics that she had seen in this case. At the most, when Rider would investigate a well-connected doctor, a legislator might call on his or her behalf.
After the arrests, she had participated in a meeting with Attorney General Foti and District Attorney Jordan that Minyard had organized. One of the men suggested that if the deaths were proven to have resulted from the intentional acts of individual health professionals, this might hurt the survivors’ chances of collecting compensation from corporate defendants like Tenet in civil suits.
Rider had interviewed the family members and believed that people like Mrs. Everett weren’t motivated by money. She wanted justice for her husband. “Would you like to meet her?” Rider asked. “I’ll go get her and bring her here so y’all can meet her.” Almost before she had asked the question, the officials in the room said, “No!” That would have made the victim real. It was easier to avoid doing the just thing if the victim was only a name.
Rider was taking the case personally, while she knew she shouldn’t. A foundation of her life was crumbling. Growing up in a state where politicians exploited every opportunity for corruption, she had deposited her faith in the burnished version of the American justice system her teachers had described in school. She believed in it. She believed, even to her ripe old early forties, that good would prevail over evil. She had given so much of herself to this ideal.
This case was not the usual Medicaid fraud case involving graft with public monies; it had to do with people’s lives and seeking justice for victims. Shouldn’t that be the motivation? Shouldn’t that trump politics?
In one of their bull sessions in the smoking area outside of the office, Schafer called her a “naïve little girl.” The way he saw it, she was used to going into a nursing home, finding someone stealing out of purses, and arresting that person. This wasn’t a case of investigate, arrest, and you’re done. Look at the overall picture here, he’d tell her: a city underwater, politics in the background, multimillion-dollar corporate interests, the medical profession on trial. She wanted two plus two to equal four. She had never thought two plus two could equal five. But that’s what she got. She would not accept it. She would keep digging to find that extra “one.” He had tried to warn her not to get emotionally involved, that the case would tear her heart out. And now it had.
The truth was that he greatly respected her. He watched her cry, a woman who’d been to the police academy, who toted two pistols, who had many years of experience as an investigator, whose quality of work on this case had been peerless all the way.
She had collected overwhelming evidence of homicides. She had earned the right to be disappointed, to be devastated.
Rider began applying for new jobs, a dozen in one week. On Valentine’s Day she had a promising meeting that evolved into an offer. Schafer didn’t see the emotion behind her departure as much as he saw that it would make her more money and give her the chance to become a CPA. She had ambition. He thought the move made good sense for her career. She shouldn’t stay pigeonholed in state government. In the end Schafer wasn’t Cary Grant, fighting to rekindle the passion of his jaded girl Friday for the work she clearly still loved. He let her go.
She accepted the job and left her position.
CORONER MINYARD took several phone calls from upset colleagues after the article appeared. When a New York Times reporter interviewed him about his determinations, he was coyer. He said he had not yet found evidence that the cases were homicides, but suggested he was awaiting more evidence and expert reports before he classified them. In fact, he could still make a determination of homicide when he went before the grand jury. Their proceedings were secret; what he said there would make fewer waves. Locally, though, the original Times-Picayune version of the story held sway. Pou’s attorney and members of her public relations juggernaut repeated over and over again that the coroner had found no evidence of homicide.
Minyard was, even still, struggling with what to tell the grand jury. He consulted one more expert, Dr. Steven B. Karch.
Karch had staked his career on advancing the argument that the level of drugs found in a cadaver may have no relationship to the levels just before death. Minyard had come across Karch’s name as the author of a well-known textbook on the signs of drug-induced deaths. He also came recommended by one of Pou’s most vocal supporters, Dr. John Kokemor, Minyard’s former coroner assistant and Dr. John Thiele’s “brown leaf brother” in smoking cigars on the ER ramp at Memorial. Kokemor had recently helped reopen the hospital.
Karch flew to New Orleans, where he had studied medicine and had once as a student attended a party at Minyard’s house. He examined the evidence and concluded that it was absurd to try to determine causes of death in bodies that had sat at 100 degrees for ten days. In all of the cases, he advised, the medical cause of death should remain undetermined.
To Karch, Minyard appeared convinced by his argument, which undermined those of the other experts. He seemed to agree with Karch in all cases except perhaps one.
Indeed, Minyard put great weight in Karch’s opinion, which was shared by the prominent local toxicologist retained by Pou’s attorney. However, forensic pathologist Michael Baden considered their main point moot. Whether or not it was possible to deduce the dose of drugs given to the patients, there was no arguing with the fact that the drugs were present. “These people were given Versed and morphine shortly before they died,” he explained to Minyard, “and there’s no other competing cause of death.”
Pathologist Cyril Wecht went even further in rebutting Karch. The levels detected in some of the bodies in question weren’t borderline high, he told Minyard, they were huge. He put Karch’s theory that drug levels change in decomposed tissue to the test, subjecting samples from patients who had died of drug overdoses to days of hot, humid conditions. Wecht compared the drug levels in these samples with others that had been refrigerated and found no significant differences. It was a small study, far from definitive and never vetted by other scientists or published, but it produced one more shard of evidence to consider.
Minyard imagined the case going to trial, provoking a battle royal of these forensic experts. The parish would lose the case over reasonable doubt. This, in his estimation, would not be good for the city, for the recovery. This was the bigger picture that he felt he had to consider beyond what pure basic science suggested about the deaths.
Minyard agonized. He was a man whose Catholic faith guided him. Willfully taking a life was a very bad thing. “Only God knows when you’re going to die,” he would tell his students.
The case occupied Minyard’s life, his thoughts, and the dreams that awoke him at night. He called his experts again and again for support and advice.