Five Days at Memorial: Life and Death in a Storm-Ravaged Hospital (69 page)

That made it all the more difficult now that the day of decision had arrived after many agonizing months. The grand jury called him to testify. Nurses who worked on the case at the attorney general’s office and some of his own office staff helped the septuagenarian prepare a PowerPoint computer presentation.

Normally Minyard loved an audience. He considered himself the one person the grand jury had listened to in New Orleans for thirty-five years. He liked to say that he’d had more time before a grand jury than Jack the Ripper. He’d grown to enjoy the prospect of coffee and doughnuts, the relaxed repartee, the aura of pride and concern most citizens exuded when exercising their civic duty. He might be one witness of several, but he knew his opinion on the manner of death was pivotal in a murder case.

Today he didn’t want to go. This case was different. He felt pressure from family and friends who opposed Pou’s prosecution. He felt pressured by the bad publicity the city was getting.

On the other side were his religious convictions. In his years as coroner, he regularly saw people die who had no reason to die and people survive accidents that should have left no one alive. He had seen the young perish quickly and the old live unexpectedly. You could never figure out God’s plan. You just had to try to fit into it, like water taking the shape of its vessel. He liked to tell that to young people. The secret to life is learning what God has planned for you.

He would sing a bar or two of one of his favorite hymns:
“When the roll is called up yonder I’ll be there.”
Respecting life was the most important thing. The road to heaven was paved by God’s grace.

There was plenty of evidence in this case that disturbed him. “Leave no living patients behind,” Susan Mulderick’s alleged directive. What did that mean? He didn’t know, but he thought it would make a hell of a movie title.

Someone told him that other doctors at Memorial had done the same thing Pou did. Christ! Minyard couldn’t bring himself to follow up and
investigate additional deaths and alleged perpetrators. It was taking every bit of his energy to go through what he was going through with this lady.

Someone asked him, “What would you have done if you were working at the hospital under those conditions?” And he knew exactly what “those conditions” were, could imagine them from his four days trapped at the courthouse in the heat, hustling for water and food, smelling urine, his bare feet slipping on the damp floor, his boots stuck back in his flooded truck.

What would he have done? He would have done what he thought was best for each person. And, by his ethic, sick people came before non-sick people. One thing he wouldn’t do if they told him to leave the hospital, that they were closing it down at five p.m., everybody out, he wouldn’t walk around with two syringes and shoot up nine people to kill them because they couldn’t get them off the seventh floor. “I know I wouldn’t do that,” he said. Not that he was saying Pou had done it.

His heart was torn. Yes, the patients died. And yes, she gave some of them the medicines. But pathologist Karch had described morphine redistributing in the body after death, making murder difficult to prove.

Had Pou meant to kill? Minyard didn’t have strong evidence either way, just a feeling about her. He couldn’t believe it. He
wouldn’t
believe it. She was no Dr. Harold Fredrick Shipman, an extremely popular British physician who, prosecutors eventually concluded, had secretly killed hundreds of his patients with injections of morphine or heroin. Minyard had to believe that Pou’s intention really was to sedate the patients. Some she might have helped. Some she might have hurt. In the end they all died. He didn’t believe she had planned to kill anybody, he would say, “but it looks like she did.”

Where did this leave him? He could easily call six or seven of the nine deaths on the LifeCare floor homicides, the administered drugs being the technical cause of death. In some of the other cases, the people were extremely ill and he just couldn’t, in his own mind, call them homicides,
but he could imagine another doctor saying that being so ill made these patients even more susceptible to morphine, knocking them off even quicker. This kind of thinking, these arguments, chased circles in Minyard’s mind like they did in the public’s, and he knew they would for years and years to come. His typical cases were 100 percent clear. The Memorial case remained a mystery to him.

Mr. Everett. He was the problem. He was an outright homicide. Minyard would stake his life on it. He considered making it clear to the grand jury that Everett had died unequivocally from the drugs. He could be a little fuzzier on the other deaths, telling them that some, like Rose Savoie,
might
be homicides, but he couldn’t be sure. If the grand jury indicted Pou on just Everett’s count and the case went to trial, Minyard imagined Mr. Simmons could easily defend her. Pou could say she was trying to sedate everybody, and because of Mr. Everett’s great size she, not being an anesthesiologist or pharmacologist, had overestimated how much sedation he would need.

This was the solution Minyard settled on. It came closest to satisfying his warring convictions and loyalties.

He looked out at the jurors and imagined he saw the larger public sentiment reflected in their eyes. Pou was Mother Teresa. Florence Nightingale. He looked into these citizens’ hearts and saw they were not interested in bringing charges against her. That was how he would later describe it.

DESPAIR INFECTED the Justice Department in Baton Rouge. Virginia Rider had been gone for months, but in her place were others consumed with the Memorial deaths and so troubled by the course of the grand jury’s investigation of them, monitored by the forceful head of Foti’s criminal division, Julie Cullen, that they drafted a scathing letter
to the New Orleans district attorney on behalf of Charles Foti protesting that “essential evidence in this case is being ignored.”

The grand jury’s exposure to the evidence had been in their estimation far from thorough. Problems had emerged from the beginning. One of Pou’s publicity messages had clearly reached its mark. When Butch Schafer met with the jurors to summarize the case, they spoke as if they assumed LifeCare staff had failed to care for their patients and not tried to evacuate them. “Many on the grand jury appear to believe this case is merely a conspiracy on the part of Life Care to escape liability for abandoning their patients,” the attorney general’s draft letter said.

There was plenty of evidence to the contrary, but according to the letter, the grand jurors had not been provided with e-mail and text messages showing how LifeCare staff inside and outside the hospital had worked to try to arrange for an evacuation, and how confusing the mixed messages were that they received from Memorial. Prosecutors had not made it clear to the grand jury that the LifeCare witnesses had reported the events voluntarily, giving statements without immunity. “LifeCare employees and administrators are ready and willing to testify about their efforts to save lives, to try to evacuate their patients, and about the directions/orders by MMC staff (Pou, Mulderick, and others). None of these witnesses have been called.”

Instead, the jurors heard, early in their investigation, from the Memorial nurses. It was unusual for a prosecutor to grant immunity before knowing what a witness would say.

Cheri Landry, the shorter of the two nurses (who had, early in the disaster, imagined Kathy Bates would play her in the movie version of the heroic ICU evacuation), told the jurors that she had injected up to four of the LifeCare patients on the seventh floor and two patients on the second floor, according to the letter. She acknowledged she was not familiar with the medical condition of the patients on the seventh floor and had not asked about their medications, but believed all of them were
going to die. She assumed the patients she injected had DNR orders. She suggested that most had the gasping, automaton-like agonal breathing pattern of the dying.

Landry emerged from her testimony impressed by how kindly the jurors spoke to her. She told her lawyer she sensed they were on her side. One looked somewhat familiar.

Lori Budo’s story was much the same. She told the jurors she was unaware of the medical conditions of the patients on the seventh floor or their DNR statuses, but they appeared to be dying, the letter said. She said she had injected two of them with morphine and midazolam.

By the nurses’ own testimony, according to the missive, they had violated in numerous ways Memorial’s policy on administering sedatives; it required an initial assessment of the patient by a doctor, informed consent, a medical order recorded in the patient chart, and continuous monitoring with emergency equipment at the ready in case resuscitation was needed. Not all of those steps should have been impossible during the disaster if the goal had been to sedate the patients. The jurors were not made aware that a policy even existed, the letter said.

Mary Jo D’Amico, the nurse manager of the operating room, who had accompanied Pou on a trip to the LifeCare floor, used her grand jury appearance to disparage LifeCare, the letter said, suggesting that their nurses were “sleeping on the job” on the second floor on Tuesday night.

The attorney general’s team feared the grand jury would not hear from any LifeCare witnesses at all, leaving them no chance to correct what the Memorial nurses had wrongly assumed about the condition of the patients and the LifeCare staff’s actions. “When will they be allowed to tell their stories?”

Moreover, the state had expended “considerable funds” for expert analyses performed by pathologists, toxicologists, coroners, and the medical ethicist—Frank Minyard’s
forensic all-stars. While it was hard for Minyard to be the heavy, living in the community with Pou’s supporters and feeling indebted to her father, he had specifically recommended
that the grand jury hear from all of the experts, most of whom believed all the deaths were homicides. The experts had received notice to prepare to come testify, but not one had been called to do so.

The same was true of Emmett Everett’s wife, Carrie, and of Angela McManus and Kathryn Nelson—daughters of the dead, who had been made to leave LifeCare just before the injections took place. “Testimony from these family members who were present as late as 9/1, is essential to the presentation of an accurate picture of the realities of the situation and the care being provided.”

One draft of the letter urged that Memorial doctors, too, be called to testify without immunity. “Someone in that hospital made decisions about who would be evacuated and who would not be evacuated. The patients who died on the 7th floor died as a result of that decision.”

The grand jury seemed unaware that some doctors had contacted prosecutors in support of the case, including Horace Baltz. He, too, had not appeared. The attorney general’s draft letter raised this issue and said, “I am very concerned that many of the grand jurors have already made a decision in this case.” Julie Cullen expressed these views in multiple, hot meetings with ADA Morales.

At a grand jury, hearsay was admissible. It was common for the lead investigating agent to summarize the evidence before the jurors. Virginia Rider, who knew every detail, was not called.

ON JULY 17, 2007, one of New Orleans’s most popular talk-radio hosts, WWL’s Garland Robinette, urged his listeners to rally in support of Pou that evening at City Park. “Say to the attorney general and the DA, ‘Drop this case. We got more important things to do in this city!’ ” Robinette urged.

Four days earlier, Foti had called in to Robinette’s
Think Tank
show, and the emotional host accused him of driving nurses and doctors out of the
state. Foti hung up. “This whole city is angered by what you’ve done to that doctor and those two nurses,” Robinette said, his deep voice cracking as he sobbed.

Robinette, a hero of the marathon Katrina broadcast and a post-storm crusader for accountability, was a relative newcomer to radio, but the disaster had taught him its power to incite the public. He believed if he showed people how a problem could affect them, they would take care of it. He was outraged by what was done to Pou, Landry, and Budo “for trying to save lives.” He hoped to bring Foti down as low as Duke prosecutor Nifong.