Comfort Care Or Mercy Killing?
Soon after sunrise on Thursday, Sept. 1 - more than 72 hours into the crisis - Memorial's chief financial officer, Curtis Dosch, delivered good news to hospital staff gathered on the emergency-room ramp. He had reached a Tenet representative in Dallas and was told that Tenet was dispatching a fleet of privately hired helicopters that day. Dosch later said that the dejected staff was skeptical. But soon the hospital's voice chain began echoing with shouts for women and children to evacuate. Boats were arriving, including fishing vessels that had been parked on trailers in the neighborhood and were now commandeered by hospital workers. Helicopters at last converged on the hospital within a couple of hours of daylight, according to a Memorial nurse from the Air Force Reserve who oversaw helipad operations. The Tenet spokesman and testimony by Mulderick in a 2008 deposition also confirm this. The hospital filled with the cacophony of military and private crafts hovering and landing. Down on the emergency-room ramp that morning, stone-faced State Police officers wielding shotguns barked that everyone had to be out of the hospital by 5 p.m. because of civil unrest in New Orleans; they would not stay later to protect the hospital.
Meanwhile, Cook strapped on his gun again and prepared to leave the hospital by boat to rescue his son, who had been trapped at his house since Tuesday's flooding. He told me that Mulderick asked him before he left to talk to Pou.
On the second floor, Cook says, he and Pou, both weary, discussed the Category 3 patients, including nine who had never been brought down from the seventh floor. According to Cook, Pou was worried that they wouldn't be able to get them out. Cook hadn't been on the seventh floor since Katrina struck, but he told me that he thought LifeCare patients were ‘‘chronically deathbound'' at the best of times and would have been horribly affected by the heat. Cook couldn't imagine how the exhausted Memorial staff would carry nine patients down five flights of stairs before the end of the day. Nobody from outside had arrived to help with that task. If there were other ways to evacuate these patients, he didn't see them.
Cook said he told Pou how to administer a combination of morphine and a benzodiazepine sedative. The effect, he told me, was that patients would ‘‘go to sleep and die.'' He explained that it ‘‘cuts down your respiration so you gradually stop breathing and go out.'' He said he believed that Pou understood that he was telling her how to achieve this. He said that he viewed it as a way to ease the patients out of a terrible situation.
In an interview with Newsweek in 2007, Pou acknowledged that after discussions with other doctors, she did inject some Category 3 patients. But she said her intention was only to ‘‘help the patients that were having pain and sedate the patients who were anxious'' because ‘‘we knew they were going to be there another day, that they would go through at least another day of hell.'' Beyond that, Pou has not talked about the details of what happened on that Thursday, citing the pending legal cases and sensitivity to patients and their families. What follows is based on the recollections of others, some of which were recounted in interviews with Louisiana Justice Department investigators, as well as in interviews with me.
Therese Mendez, a LifeCare nurse executive, had worked overnight on the first floor, she later told investigators. (She declined to speak with me.) After daybreak, she heard the sound of helicopters and watched the evacuation line begin to move. According to Mendez, she returned at around 8 or 9 a.m. to the seventh floor and walked along a corridor. The patients she saw looked bad. Several were unconscious, frothing at the mouth and breathing in an irregular way that often heralds death. Still, while two patients died on the LifeCare's seventh floor on Wednesday, the others had lived through the night, with only a few given small doses of morphine or the sedative lorazepam for comfort.
Mendez heard that Pou was looking for her. They sat down in an office with an open window. Pou looked distraught and told her that the LifeCare patients probably were not going to survive. Mendez told investigators that she responded, ‘‘I think you're right.''
Mendez said she watched Pou struggle with what she was saying, telling investigators that Pou told her that ‘‘the decision had been made to administer lethal doses'' of morphine and other drugs. (Pou, through her lawyer, Richard Simmons Jr., denied mentioning ‘‘lethal doses.'') Were the LifeCare patients being singled out? Mendez asked. She knew there were other sick patients at Memorial. Mendez recalled that Pou said ‘‘no'' and that there was ‘‘no telling how far'' it would go.
According to Mendez, Pou told her that she and other Memorial staff members were assuming responsibility for the patients on the seventh floor; the LifeCare nursing staff wasn't involved and should leave. (Pou, through her lawyer, disputes Mendez's account.) Mendez later said she had assumed that the hospital was under martial law, which was not the case, and that Pou was acting under military orders. Mendez left to dismiss her employees, she said, because she feared they would be forced downstairs by authorities.
Diane Robichaux, the senior leader on the LifeCare floor, later walked into the office, she recalled in interviews with investigators. (She declined to talk to me.) She and other LifeCare workers had gone downstairs at around 9:30 a.m. to ask Susan Mulderick when the LifeCare patients on the seventh floor would be evacuated. According to Robichaux, Mulderick said, ‘‘The plan is not to leave any living patients behind,'' and told her to see Pou.
In Robichaux's interview with investigators, she could not recall exactly what Pou told her, but she said that she understood that patients ‘‘were not going to be making it out of there.'' She said that Pou did not use the word ‘‘euthanize.'' Prompted by investigators, she said she thought Pou might have used the word ‘‘comfortable'' in describing what she was trying to do for the patients.
Robichaux remembered Pou saying that the LifeCare patients were ‘‘not aware or not alert or something along those lines.'' Robichaux recounted to investigators that she told Pou that that wasn't true and said that one of LifeCare's patients - Emmett Everett, a 380-pound man - was ‘‘very aware'' of his surroundings. He had fed himself breakfast that morning and asked Robichaux, ‘‘So are we ready to rock and roll?''
The 61-year-old Honduran-born manual laborer was at LifeCare awaiting colostomy surgery to ease chronic bowel obstruction, according to his medical records. Despite a freakish spinal-cord stroke that left him a paraplegic at age 50, his wife and nurses who worked with him say he maintained a good sense of humor and a rich family life, and he rarely complained. He, along with three of the other LifeCare patients on the floor, had no D.N.R. order.
Everett's roommates had already been taken downstairs on their way to the helicopters, whose loud propellers sent a breeze through the windows on his side of the LifeCare floor. Several times he appealed to his nurse, ‘‘Don't let them leave me behind.'' His only complaint that morning was dizziness, a LifeCare worker told Pou.
‘‘Oh, my goodness,'' a LifeCare employee recalled Pou replying.
Two Memorial nurses - identified as Cheri Landry and Lori Budo from the I.C.U. to investigators by a LifeCare pharmacist, Steven Harris - joined the discussion along with other LifeCare workers. (Through their lawyers, Landry and Budo declined to be interviewed. Harris never returned my calls.) They talked about how Everett was paralyzed and had complex medical problems and had been designated a ‘‘3'' on the triage scale. According to Robichaux, the group concluded that Everett was too heavy to be maneuvered down the stairs, through the machine-room wall and onto a helicopter. Several medical staff members who helped lead boat and helicopter transport that day say they would certainly have found a way to evacuate Everett. They say they were never made aware of his presence.
In his interviews with investigators, Andre Gremillion, a LifeCare nurse, said that the female physician in the office (he didn't know Pou's name) asked if someone who knew Everett could explain to him that because he was so big they did not think they would be able to evacuate him. They asked Gremillion whether he could ‘‘give him something to help him relax and explain the situation.'' Gremillion told investigators that he didn't want to be the one who told Everett that ‘‘we would probably be leaving and he would be staying.'' At that point, Gremillion said, he lost his composure.
Gremillion's supervisor and friend, a LifeCare nursing director, Gina Isbell, told me she walked into the room around 11 a.m. and saw Gremillion crying and shaking his head. He brushed past her into the hallway, and Isbell followed, grabbing his arm and guiding him to an empty room. ‘‘I can't do this,'' he kept saying.
‘‘Do what?'' Isbell asked. When Gremillion wouldn't answer, Isbell tried to comfort him. ‘‘It's going to be O.K.,'' she said. ‘‘Everything's going to be all right.''
Isbell searched for Robichaux, her boss. ‘‘What is going on?'' she asked, frantic. ‘‘Are they going to do something to our patients?''
‘‘Yes, they are,'' Isbell remembers Robichaux, in tears, saying. ‘‘Our patients aren't going to be evacuated. They aren't going to leave.'' As the LifeCare administrators cleared the floor of all but a few senior staff members, Robichaux sent Isbell to the back staircase to make sure nobody re-entered. It was quiet there, and Isbell sat alone, drained and upset. Isbell said she thought about her patients, remembering with guilt a promise she made to the daughter of one of her favorites, Alice Hutzler, a 90-year-old woman who came to LifeCare for treatment of bedsores and pneumonia. Isbell fondly called her Miss Alice and had told Hutzler's daughter that she would take good care of her mother. Now Isbell prayed that help would come before Hutzler and her other patients died.
According to statements made to investigators by Steven Harris, the LifeCare pharmacist, Pou brought numerous vials of morphine to the seventh floor. According to investigators, a proffer from Harris's lawyer said that Harris gave her additional morphine and midazolam - a fast-acting drug used to induce anesthesia before surgery or to sedate patients for medical procedures. Like morphine, midazolam depresses breathing; doctors are warned to be extremely careful when combining the two drugs.
Kristy Johnson, LifeCare's director of physical medicine, said she saw what happened next. She told Justice Department investigators that she watched Pou and two nurses draw fluid from vials into syringes. Then Johnson guided them to Emmett Everett in Room 7307. Johnson said she had never seen a physician look as nervous as Pou did. As they walked, she told investigators, she heard Pou say that she was going to give him something ‘‘to help him with his dizziness.'' Pou disappeared into Everett's room and shut the door.
As they worked their way down the seventh-floor hallway, Johnson held some of the patients' hands and said a prayer as Pou or a Memorial nurse gave injections. Wilda McManus, whose daughter Angela had tried in vain to rescind her mother's D.N.R. order, had a serious blood infection. (Earlier, Angela was ordered to leave her mother and go downstairs to evacuate.) ‘‘I am going to give you something to make you feel better,'' Pou told Wilda, according to Johnson.
Johnson took one of the Memorial nurses into Room 7305. ‘‘This is Ms. Hutzler,'' Johnson said, touching the woman's hand and saying a ‘‘little prayer.'' Johnson tried not to look down at what the nurse was doing, but she saw the nurse inject Hutzler's roommate, Rose Savoie, a 90-year-old woman with acute bronchitis and a history of kidney problems. A LifeCare nurse later told investigators that both women were alert and stable as of late that morning. ‘‘That burns,'' Savoie murmured.
According to Memorial workers on the second floor, about a dozen patients who were designated as ‘‘3's'' remained in the lobby by the A.T.M. Other Memorial patients were being evacuated with help from volunteers and medical staff, including Bryant King. Around noon, King told me, he saw Anna Pou holding a handful of syringes and telling a patient near the A.T.M., ‘‘I'm going to give you something to make you feel better.'' King remembered an earlier conversation with a colleague who, after speaking with Mulderick and Pou, asked him what he thought of hastening patients' deaths. That was not a doctor's job, he replied. Patients were hot and uncomfortable, and a few might be terminally ill, but he didn't think they were in the kind of pain that calls for sedation, let alone mercy killing. When he saw Pou with the syringes, he assumed she was doing just that and said to anyone within earshot: ‘‘I'm getting out of here. This is crazy!'' King grabbed his bag and stormed downstairs to get on a boat.
Bill Armington, the neuroradiologist, watched King go and was upset at him for leaving. Armington suspected that euthanasia might occur, in part, he told me, because Cook told him earlier that there had been a discussion of ‘‘things that only doctors talk about.'' Armington headed for the helipad, "stirred up,'' as he recalls, ‘‘to intensify my efforts to get people off the roof.'' Neither Armington nor King intervened directly, though King had earlier sent out text messages to friends and family asking them to tell the media that doctors were discussing giving medication to dying patients to help accelerate their deaths. King told me that he didn't think his opinion, which hadn't mattered when he argued against turning away the hospital's neighbors, would have mattered.
Only a few nurses and three doctors remained on the second floor: Pou; a young internist named Kathleen Fournier; and John Thiele, a 53-year-old pulmonologist, who had never before spoken publicly about his Katrina experiences until we had two lengthy interviews in the last year. Thiele told me that on Thursday morning, he saw Susan Mulderick walking out of the emergency room. ‘‘John, everybody has to be out of here tonight,'' he said she told him. He said René Goux told him the same thing. Mulderick, through her lawyer, and Goux both say that they were not given a deadline to empty the hospital and that their goal was to focus their exhausted colleagues on the evacuation. ‘‘We'd experienced the helicopters' stopping flying to us,'' Goux told me, ‘‘and I didn't want that to occur again.''
Around a corner from where the patients lay on the second floor, Thiele and Fournier struggled to euthanize two cats whose owners brought them to the hospital and were forced to leave them behind. Thiele trained a needle toward the heart of a clawing cat held by Fournier, he told me later. While they were working, Thiele recalls Fournier telling him that Mulderick had spoken with her about something to the effect of putting patients ‘‘out of their misery'' and that she did not want to participate. (Fournier declined to talk with me.) Thiele told her that he understood, and that he and others would handle it. Mulderick's lawyer says that Mulderick did ask a physician about giving something to patients to ‘‘make them more comfortable,'' but that, however, was not ‘‘code for euthanasia.''
Thiele didn't know Pou by name, but she looked to him like the physician in charge on the second floor. He told me that Pou told him that the Category 3 patients were not going to be moved. He said he thought they appeared close to death and would not have survived an evacuation. He was terrified, he said, of what would happen to them if they were left behind. He expected that the people firing guns into the chaos of New Orleans - ‘‘the animals,'' he called them - would storm the hospital, looking for drugs after everyone else was gone. ‘‘I figured, What would they do, these crazy black people who think they've been oppressed for all these years by white people? I mean if they're capable of shooting at somebody, why are they not capable of raping them or, or, you know, dismembering them? What's to prevent them from doing things like that?''
The laws of man had broken down, Thiele concluded, and only the laws of God applied.
‘‘Can I help you?'' he says he asked Pou several times.
‘‘No,'' she said, according to Thiele. ‘‘You don't have to be here.''
‘‘I want to be here,'' Thiele insisted. ‘‘I want to help you.''
Thiele practiced palliative-care medicine and was certified to teach it. He told me that he knew that what they were about to do, though it seemed right to him, was technically ‘‘a crime.'' He said that ‘‘the goal was death; our goal was to let these people die.''
Thiele saw that morphine, midazolam and syringes had been set up on a table near the A.T.M. There were about a dozen patients, and he took charge of the four closest to the windows - three elderly white women and a heavyset African-American man - starting IVs on those who didn't have one. Apart from their breathing and the soft moans of one, the patients appeared ‘‘lifeless'' and did not respond to him. Thiele saw Pou and several nurses working on patients lying near the hallway.
Thiele wavered for a moment. He turned to Karen Wynn, the I.C.U. nurse manager at Memorial who led the hospital's ethics committee. ‘‘Can we do this?'' he remembers asking the highly respected nurse.
Wynn felt that they needed to medicate the patients, she said when she described her experiences publicly for the first time in interviews with me over the past year. She acknowledged having heard rumors that patients were being euthanized, but she said no one had told her that that was what was happening to these patients and that her only aim was to make patients comfortable by sedating them. Wynn said she did not fear staying in the hospital after the 5 p.m. curfew announced by the State Police - she had already decided to ignore the evacuation deadline and stay at the hospital until everyone alive had been taken out. Instead, she said, she was motivated by how bad the patients looked.
Wynn described turning to an elderly woman who was unconscious with labored breathing. She then prepared a syringe with morphine and midazolam, pushed it slowly into the woman's IV line and watched her breathing ease. The woman died a short time later, which didn't disturb Wynn because she had appeared to be close to death. Wynn told me that at that point all the staff could offer was ‘‘comfort, peace and dignity.'' She said: ‘‘We did the best we could do. It was the right thing to do under the circumstances.''
She added: "But even if it had been euthanasia, it's not something we don't really do every day - it just goes under a different name.''
Thiele gave other patients a shot of morphine and midazolam at doses he said were higher than what he normally used in the I.C.U. He held their hands and reassured them, ‘‘It's all right to go.'' Most patients, Thiele told me, died within minutes of being medicated. But the heavyset African-American man didn't.
His mouth was open, his breathing was labored and everyone could hear his awful death rattle. Thiele tried more morphine. He tried prayer. He put his hand on the man's forehead; Wynn and another nurse manager took the man's hands in theirs. Together they chanted: ‘‘Hail Mary, full of grace. The Lord is with thee.'' They recited the Lord's Prayer. They prayed for the man to die.
The man kept breathing, and Wynn says she and her colleagues took that as a sign. ‘‘God said, ‘O.K., but I'm not ready for him.' Or he wasn't ready.'' She remembers passing him through the hole in the machine-room wall on his way to the evacuation helicopters.
Thiele has a different memory of what happened. ‘‘We covered his face with a towel'' until he stopped breathing, Thiele told me.
He says that it took less than a minute for the man to die and that he didn't suffer. ‘‘This was totally against every fiber in my body,'' Thiele told me, but he also said he knew what he did was right. ‘‘We were abandoned by the government, we were abandoned by Tenet, and clearly nobody was going to take care of these people in their dying moments.'' He added, ‘‘I did what I would have wanted done to me if the roles were reversed.''
Both Thiele and Wynn recall that they, Pou and the other nurses covered the bodies of the dead and carried them into the chapel, filling it. Thiele said the remaining bodies were wrapped in sheets and placed on the floor in the corridor and in a nearby room.
‘‘It was very respectful,'' Thiele told me. ‘‘It's not like you would think.''
That afternoon, Memorial's pathologist and laboratory director walked though the hospital, floor by floor, to record the locations of the dead and make sure that nobody alive was left behind. They found Pou on the seventh floor with a nurse. Pou was working on the IV of a patient who seemed barely alive. The laboratory director told investigators that Pou asked for help moving the patient; the pathologist remembered it differently and said in a deposition that he offered Pou help with evacuating the patient, but Pou did not respond, and later, when he asked her again, she said she needed to speak with an anesthesiologist first.
Dr. John Walsh, a surgeon, told me that he was sitting on a bench, too tired to move, when Pou and the pathologist came downstairs. Pou looked upset. She sat down beside him. ‘‘What's wrong?'' he asked. He said she mentioned something about a patient, or patients, dying and about someone, or some people, questioning her.
Walsh had known Pou for about only a year, but he knew, he told me, that she was compassionate and dedicated to her patients. ‘‘I'm sure you did the right thing,'' he remembers telling her. ‘‘It'll work itself out. It'll all turn out O.K.''
Throughout the day, boats and helicopters drained the hospital of nearly all of its patients and visitors. At around 9 p.m., Rodney Scott, the obese I.C.U. patient who was recovering from surgery and heart trouble, at last felt himself being hoisted up the open metal steps to the helipad. Weighing more than 300 pounds and unable to walk, Scott was the last living patient to leave the hospital grounds. He felt relief. The four men surrounding him shouted, ‘‘Push! Push!'' and rolled his heavy wheelchair into a Coast Guard helicopter. Evacuating someone as large as Scott had a cost - a nurse was briefly pinned against the helicopter, bruising his ribs and spleen - but it had been done.
Scott, Thiele and Wynn were flown separately to Louis Armstrong New Orleans International Airport, where their ordeals continued. Hundreds of hospital and nursing-home patients had been dropped there from across the disaster zone; they were met by federal disaster-management teams that were so understaffed and undersupplied that they couldn't provide even basic nursing care to many patients. Reflecting on the scene at the airport, Thiele told me that if the patients he injected with drugs had made it there, ‘‘They wouldn't have survived.''
The Coroner's Dilemma
On Sunday, Sept. 11, 2005, 13 days after the storm hit, mortuary workers recovered 45 decomposing bodies from Memorial Medical Center. The next day the Louisiana attorney general, Charles Foti Jr., opened investigations into hospital and nursing-home deaths during Hurricane Katrina. The Justice Department's phones were soon ringing with allegations of patient abandonment and euthanasia.
One of the people who called was a LifeCare lawyer who relayed a report that nine of the company's patients may have been given lethal doses of medicines by a Memorial doctor and nurses. State and federal investigators interviewed LifeCare witnesses and descended on the mold-ridden hospital to search for evidence. Separately, Foti's staff asked the Orleans Parish coroner, Dr. Frank Minyard, to perform autopsies and drug tests on approximately 100 bodies that were recovered from more than a half-dozen hospitals and nursing homes in New Orleans.
The burden was unwelcome for Minyard, a 76-year-old obstetrician-gynecologist who was already struggling to oversee the autopsies and identification of hundreds of hurricane victims. Minyard was inspired by a Catholic nun to devote his life to public service. For 31 years as the city's elected coroner, he peered into bodies in the basement office of the colonnaded criminal courthouse, emerging in cowboy boots and white suits to play jazz trumpet at city charity events. As New Orleans flooded, Minyard says, he got out of his car and swam to work. He was trapped there for four days.
After autopsies were done and specimens removed, workers at National Medical Services, a private laboratory in Pennsylvania, quickly detected morphine in nine bodies - the same nine patients LifeCare staff identified as potential victims.
The attorney general's office hired a forensic pathologist, Cyril Wecht, who worked on the John F. Kennedy assassination case and the O. J. Simpson murder trial, to review evidence in the deaths of four patients whose full toxicology reports and medical records they obtained first: Emmett Everett, Rose Savoie and two other LifeCare patients. Wecht concluded that all four deaths were homicides, caused by human intervention.
After months of conducting interviews and collecting documents, investigators came to believe, they said, that doctors and nurses euthanized as many as two dozen patients at Memorial. But medical records were needed to substantiate the findings, and according to investigators, Tenet's lawyers said that many of those belonging to Memorial patients were unavailable. (The Tenet spokesman said via e-mail that Tenet produced all records in its possession.) Armed with the testimony of LifeCare workers and the medical records of the four patients on the seventh floor, state prosecutors decided their strongest case was against Anna Pou, Cheri Landry and Lori Budo for those deaths.
At about 9 p.m. on July 17, 2006 - nearly a year after floodwaters from Katrina swamped Memorial hospital - Pou opened the door of her home to find state and federal agents, clad in body armor and carrying weapons. They told her they had a warrant for her arrest on four counts of principal to second-degree murder.
Pou was wearing rumpled surgical scrubs from several hours of surgery she performed earlier in the day. She knew she was a target of the investigation, but her lawyer thought he had assurance that she could surrender voluntarily. ‘‘What about my patients?'' she asked reflexively. An agent suggested that Pou call a colleague to take over their care. She was allowed to freshen up and then was read her rights, handcuffed and ultimately driven to the Orleans Parish jail. On the way, she prayed silently. (Landry and Budo were arrested the same night.)
Pou was booked and released after midnight. The next day the attorney general, Foti, held a news conference carried on CNN, which had broken some of the initial reports of the investigation and the possible euthanasia at Memorial. ‘‘This is not euthanasia,'' Foti said emphatically. ‘‘This is plain and simple homicide.''
At a news conference later that day, Pou's lawyer blamed the storm - not Pou - for the deaths. He said his client was innocent and accused Foti, who was about to run for re-election, of orchestrating a media event with the arrests. He announced his intention to bring the results of his own investigation to the Orleans Parish district attorney, whose office had jurisdiction over the case after the arrests and would bring it before a grand jury.
As the government investigation progressed, Carrie Everett, Emmett Everett's widow, spoke out on CNN. After Katrina she searched for her husband for two weeks before learning that he was dead. She filed wrongful death lawsuits against Tenet, LifeCare, Pou, Landry and Budo.
‘‘Who gave them the right to play God?'' Mrs. Everett demanded. ‘‘Who gave them the right?''
A successful murder prosecution in Orleans Parish typically requires a coroner's medical determination of homicide - that a death was caused by the actions of another human being - without regard to fault or legal responsibility. It is a step toward a criminal finding of homicide, in which a Louisiana court assigns fault for a killing.
Minyard, the coroner, brought together Cyril Wecht, Michael Baden - another well-known forensic pathologist - and Robert Middleberg, the director of the toxicology laboratory where the autopsy samples were tested, to discuss the toxicology findings. Minyard's flood-ravaged offices still hadn't been repaired, so they met for three days in his temporary quarters in a vacant funeral home.
Records showed that more than half of the 41 bodies from Memorial that were analyzed by Middleberg's lab tested positive for morphine or midazolam, or both. Middleberg had handled thousands of cases in his career, and the high drug concentrations found in many of the patients stuck out ‘‘like a sore thumb,'' he told me.
The group considered the 90-year-old pneumonia patient Alice Hutzler, whom the LifeCare nurse Gina Isbell had promised to care for during the hurricane. Morphine and midazolam were found in her liver, brain and muscle tissue, but neither drug had been prescribed, according to her chart, which contained notes until the night before her death on Sept. 1. That chart showed that she was ‘‘resting calmly'' the previous afternoon, and during the evening her nurses did not document any complaints of pain or distress that indicated she needed 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 Sept. 1, and all were listed as dead by Memorial's pathologist that afternoon.
‘‘Homicide,'' Wecht wrote on a sheet of paper with Hutzler's name on top, 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, whose records indicated she was close to death, he marked as undetermined. Baden said he thought all nine were homicides.
The group considered one death on the eighth floor in the I.C.U.: Jannie Burgess was the comatose patient who was found by Ewing Cook when he climbed the stairs in the heat on Wednesday, Aug. 31. Burgess's medical chart showed that she was given 15 milligrams of morphine seven times on Wednesday between 2:10 p.m. and 3:35 p.m. on spoken orders from Cook. This was more than seven times the maximum dose she was receiving for comfort care. But because she had already been receiving 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.
Besides the nine patients who remained on the LifeCare floor and Burgess, the group also reviewed 13 Memorial and LifeCare patients whose deaths were recorded by Memorial's pathologist on the second-floor lobby near the A.T.M. and elsewhere. (Other deaths struck investigators as suspicious, but because not all bodies were tested for drugs after autopsy, they were not considered.) Of those 13, 9 tested positive for midazolam and 4 for morphine, too. Investigators searching the hospital found prescriptions for large amounts of morphine for three of them, including Carrie Hall, the woman who fought hard to survive on Wednesday night. The prescriptions were dated Thursday, Sept. 1, and were signed by Dr. Anna Pou.
Despite Wecht and Baden's strong opinions that the LifeCare deaths were the result of drug injections, Minyard wanted additional information to help him make his decision. He 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 internal-medicine specialist 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 says that Everett almost certainly died of an enlarged heart, not an overdose of medication.)
As Minyard deliberated, he continued his own inquiry, inviting several LifeCare administrators to his office for interviews. Their stories focused on Anna Pou. Minyard had never met Pou, but two months after her arrest he watched her defend herself and her nurse colleagues with passion on "60 Minutes." "I want everybody to know that I am not a murderer," she told Morley Safer. "I do not believe in euthanasia."
After the "60 Minutes" story, some of Minyard's longtime colleagues questioned why he was even investigating the case. The day after the CBS broadcast, the American Medical Association released a statement: "The A.M.A. is very proud of the many heroic physicians and other health care professionals who sacrificed and distinguished themselves in the aftermath of Hurricane Katrina."
Minyard told me that after Pou appeared on national television, he had an urge to meet her, 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. ‘‘Science is great, but there is a point where you have to go beyond science; you have to go by your gut feeling, whatever you do.'' He invited Pou's lawyer to bring her to his office for a visit.
Pou sat across from Minyard, ‘‘a very ladylike lady, real Southern charming lady.'' On his desk was a Bible, on his wall a crucifix, and all around them were framed pictures of life in their native city. Soon they were discovering mutual friends and chatting about several members of Pou's large Catholic family with whom Minyard was close. They reminisced about Pou's deceased father, a 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. She told him that she had been trying to alleviate pain and suffering. Given that Pou's lawyer was there, 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 him back to the days he spent trapped in the courthouse after Katrina. How precious food and water had seemed. How impossible it was to sleep at night with gunshots echoing all around.
Minyard told me that his 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, he said he thought. It also bothered Minyard that documentation suggested that few of the elderly patients who died were being treated for pain.
Minyard reached out to the noted University of Pennsylvania bioethicist Arthur Caplan for more advice. Caplan reviewed the records and concluded that all nine LifeCare patients on the seventh floor 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 are clear, Caplan wrote, in that the death of a patient cannot be the goal of a doctor's treatment.
Despite all the expert determinations of homicide, Minyard was still struggling with what to tell the grand jury. He consulted one more pathologist, Dr. Steven 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.
Karch flew to New Orleans, 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 10 days. In all of the cases, he advised, the medical cause of death should remain undetermined.
The coroner said he believed that if the case went to trial, the defense would bring in someone like Karch to provide reasonable doubt. ‘‘We'd lose the case,'' Minyard told me. ‘‘It would not be good for the city, for the recovery. It's just a bigger picture that I had to consider than just that pure basic scientific thing.''
Minyard agonized. Willfully taking a life was ‘‘a very bad, bad thing,'' he thought. ‘‘Only God knows when you're going to die.'' The case occupied Minyard's life, his thoughts and the dreams that awoke him in the middle of the night. He called his experts again and again for support and advice.
The Grand Jury's Decision
In March 2007, the grand jurors who would consider Anna Pou's fate were sworn in. That spring, they began meeting about once a week at a secret location. Normally prosecutors are advocates for indictment, calling their strongest witnesses to testify and granting immunity in exchange for critical information. But the assistant district attorney, Michael Morales, whose office received condemnatory letters every day for bringing a case against Pou, told me that he and the Orleans Parish district attorney, Eddie Jordan, ‘‘weren't gung-ho'' about prosecuting the case. ‘‘We were going to give some deference to the defendant,'' he said, because Pou wasn't the usual career criminal accused of murder. At the same time, because a judge had signed a warrant to arrest Pou and multiple witnesses were willing to testify, ‘‘we weren't going to shirk our duties and tank it.'' He said that he personally ‘‘didn't care one way or the other'' about the outcome.
Rather than presenting the evidence to the jurors and seeking an indictment, as he typically did, he said he invited the jurors, in conjunction with the district attorney's office, to act as investigators and decide what evidence they wanted to consider. This didn't sit well with the attorney general and his staff. Foti told me that he repeatedly asked the district attorney's office to present all the evidence and the experts.
Grand-jury hearings are conducted in secret, making it difficult to know exactly what jurors hear. Minyard told me that in the end, he decided that four of the nine deaths on the seventh floor were homicides, including Emmett Everett and Rose Savoie. Until now, he has never publicly revealed that conclusion. He also said of Pou, ‘‘I strongly do not believe she planned to kill anybody, but it looks like she did.''
The jury heard from Minyard but not from any of his forensic experts; nor from two family members who were present on the LifeCare floor during most of the ordeal; nor the main Justice Department investigator, who worked the case for a year and helped collect 50,000 pages of evidence. Only two of the main LifeCare witnesses were brought before the jury late in the process. Budo and Landry, who were compelled to testify after the district attorney decided not to prosecute them, had publicly expressed their support for Pou.
The grand jurors lived among the general public, which was firmly in Pou's corner. Pou had one of New Orleans's premier public-relations agencies representing her. A poll commissioned by her lawyer's office to assess the potential jury pool found that few New Orleanians favored indictment.
Any grand jurors who might have turned on their radios or TVs, or opened The Times-Picayune, or surfed the Web would have heard samples of the community's drumbeat of support. Nearly every day, New Orleans's most popular talk-radio host, Garland Robinette, raised his bass voice on WWL's ‘‘Think Tank'' in outrage at ‘‘what's being done to these three . . . for trying to save lives.'' On July 17, 2007, a support rally to mark the first anniversary of Pou's arrest garnered top billing on Robinette's show and on every local news program. Hundreds gathered in City Park. Speakers aimed their comments directly at the grand jury, warning that medical professionals, whose ranks had already been depleted by Katrina, would flee Louisiana in droves if a doctor was indicted after serving in a disaster.
The week of the rally, the grand jurors stopped hearing evidence. The district attorney's office prepared a 10-count bill of indictment against Pou for the grand jury to consider - one count of second-degree murder in Emmett Everett's case and nine counts of the lesser conspiracy to commit second-degree murder, one for each of the LifeCare patients on the seventh floor.
This meant that the grand jurors were being asked to decide whether the evidence they heard persuaded them that Pou had ‘‘a specific intent to kill'' - part of Louisiana's definition of second-degree murder.
On July 24, 2007, the jurors filed into Section E of Orleans Parish Criminal District Court, the building where Minyard survived Katrina. Judge Calvin Johnson read aloud the 10 counts of indictment. The grand jury did not indict Pou on any of them.
Four years after Katrina, it's summer again in New Orleans, and the myrtle trees are in bloom. Rodney Scott, the patient whom Ewing Cook once took for dead, is still alive.
Scott is grateful to be with his family. A former nurse, he says he does not know whether euthanasia occurred at Memorial; but if it had, he wonders what the doctors and nurses could have been thinking. ‘‘How can you say euthanasia is better than evacuation?'' he asked me not long ago. ‘‘If they have vital signs,'' he said, ‘‘get 'em out. Let God make that decision.''
The debate among medical professionals about how to handle disasters is intensifying, with Pou and her version of the Memorial narrative often at the center. At a conference for hospital executives and state disaster planners a few months ago in Chicago, she did not mention that she injected patients, saying that helicopters arrived in the afternoon of Thursday, Sept. 1, and ‘‘we were able to evacuate the rest.''
Pou projected the booking photo from her arrest onto the screen as she argued for laws to shield health workers from civil and criminal liability in disasters.
Before delivering the keynote address, Pou participated in a panel on the ‘‘moral and ethical issues'' that could arise if standards of care were altered in disasters. At one point, one of the panelists, Father John F. Tuohey, regional director of the Providence Center for Health Care Ethics in Portland, Ore., said that there are dangers whenever rules are set that would deny or remove certain groups of patients from access to lifesaving resources. The implication was that if people outside the medical community don't know what the rules are or feel excluded from the process of making them or don't understand why some people receive essential care and some don't, their confidence in the people who care for them risks being eroded. ‘‘As bad as disasters are,'' he said, ‘‘even worse is survivors who don't trust each other.''
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