by Sheri Fink
“LifeCare, our company, had resources to come in, get my patients out, my employees out.” She blamed government officials for dissuading LifeCare executives from sending in help. “It’s just not fair. I don’t know, it’s just not fair. It’s just not. I’m sorry.”
Schafer suggested they take a break, but Isbell composed herself and said she wanted to continue. She tried to recall a specific detail.
“Tomorrow at three it will come to me because I can only sleep till two or three in the morning and then I’m up,” she told them. Isbell was sleeping poorly, her hair was falling out, she was having nightmares in which she saw the faces of her patients. Her roommate was worried—Isbell always looked sad; a force had gone out of her. She had left Memorial in a small flat boat, with a weeping heat rash, mentally and physically drained, only to discover she had lost her home and her entire community in devastated St. Bernard Parish. She felt guilty about every staff member she had picked to work the hurricane with her. She felt terrible about the patients who had died.
“Take a pad with you to bed and as you think of things write them down,” Rider suggested.
“That’s when our questions will come to us,” Schafer joked. “So we’ll just give you a call at three tomorrow morning.”
“You have my cell phone number! Give me a call!”
They finished the interview and Schafer thanked Isbell. “I know it was painful to relive this, but I appreciate it.”
“I’ll tell you, every day is a challenge,” Isbell replied.
ISBELL’S GUARDED, angry reaction to the prosecutor and investigator was typical. The CNN stories and the Tenet lawyers’ letters marked a turning point. While the first few interviewees had seemed eager to speak with Rider and Schafer, now that the story and the investigation were public and Rider began conversations with a legal disclaimer, most potential witnesses were wary and uncooperative.
“I wanted to talk to you about what happened at Memorial hospital after the storm,” Rider said in a phone call to one Memorial pharmacist who might have had important information about how Anna Pou came into possession of controlled drugs. “Are you OK with talking with me?”
“Yes, OK,” the pharmacist said.
“Because you are still an employee of the hospital, I have to inform you that you have the right to have a hospital representative or an attorney present when I ask you any questions.”
The pharmacist reconsidered. “I guess I probably should call them, huh? I think that it might be better, I mean, obviously I would be willing to talk to you, but since you said something, I guess maybe I should talk to someone beforehand, just… I really don’t think I need an attorney. I think, just to make sure, I’ll call them.”
The pharmacist eventually called back, but suddenly the main people Rider and Schafer wanted to speak with were lawyered-up and unwilling to talk. When employees did agree to interviews, Schafer, drawing on more than three decades of legal practice, sensed in their guarded responses that their attorneys had schooled them on what they could and could not say. There wasn’t a lot he and Rider could do when an interview subject answered, “I can’t recall,” even when the question concerned an event it would seem that no one could ever forget.
“Did you ever remember hearing any rumors about what happened to those patients on the seventh floor?” one of the Medicaid fraud prosecutors asked in a phone interview with a nurse who had worked at Memorial for ten years and was now working for another Tenet hospital.
“Um… I’m sorry, during, during the hospital I may have heard something.”
“What did you hear?”
“I really can’t recall everything that I heard.”
“The things that you can, let’s start there.”
“It’s just a rumor that I heard. I think there was like seven patients supposedly, I think, that were supposedly euthanized. That was the rumor.”
“Where did you hear that?” Virginia Rider picked up the questioning.
“In the hospital.”
“Where in the hospital?”
“I can’t recall what particular spot I was standing in at the time. I mean, just in the hospital in general.”
“What day?”
“Um… I can’t recall that.”
“Who told you?”
“Um… I can’t… I can’t recall.”
“Was it a nurse?”
“Um… possibly?”
“Was it a doctor?”
“No.”
“Had you heard why they were euthanized?” the prosecutor asked.
“Um… if I did hear anything, it probably was because they probably weren’t gonna make it.”
The employee later said he thought he had heard the rumor from several people at several different times. “Was it on the last day that you were there?” the prosecutor asked.
“I don’t believe.”
“Was it on the Wednesday before you left?”
“Could have been.”
Rider knew that the nurse had, shortly after the storm, openly told a journalism student that people at the hospital were “euthanizing” and “putting people to sleep.” The journalism student happened to work part-time for a district attorney’s office in another part of Louisiana and reported it to her boss.
Schafer was familiar with what attorneys did when they represented defense witnesses, and he had to admire the good lawyering of the competition. Their work energized him, made him play his “A” game, even as he saw that it only angered Rider, who seemed to see it as a form of withholding evidence.
Now that some allegations were out in the media, there was another concern. News reports could trigger memories. They could also, perhaps, manufacture them. Researchers had shown that recollections of alleged crimes, as of all events, were fallible, malleable, and subject to possible contamination by new information and discussions with other witnesses. Nearly three out of four convictions later reversed based on DNA evidence with the help of the US nonprofit group the Innocence Project were based on faulty eyewitness identification. It was also potentially significant that several of the LifeCare witnesses had spoken after the evacuation and consulted on a written time line of their experiences.
To help mitigate the problems, Schafer, Rider, and their colleagues needed to interview more witnesses, taking care to avoid leading them or suggesting ideas, and to collect as much physical and written information as possible from the time of the events.
The investigation was stalling. The initial interviews had been unfocused. Rider and Schafer had been unsure of what information they needed.
LifeCare’s attorneys were prompt and helpful in answering requests for documents and details, but Tenet’s were taking a more defensive and protective tack. One of Rider’s earliest and most important requests had been for the medical records of the deceased patients. Weeks later, she still had only some of them. Rider had learned from Tenet’s chief of security that Tenet attorney Audrey Andrews had directed him to secure any medical records relating to deceased patients on September 14, which was the day after the attorney general’s investigation began. The records were brought to another Tenet hospital, but it had taken until October 7 before investigators were able to retrieve them, and they were far from complete.
Rider and Schafer also lacked key facts. Who were the nurses who allegedly accompanied Pou to the seventh floor on Thursday morning? None of the witnesses had as yet been able to name them. During the search, investigators had found and seized papers listing everyone present at Memorial by department. They focused in on staff who might have had the most contact with Pou.
The last week of October, agents fanned out to serve subpoenas on seventy-three Memorial employees, compelling them to appear for interviews. Under the law, willfully disobeying could be punishable as contempt of court. The subpoenas could serve another purpose, flushing out people who invoked their Fifth Amendment right not to incriminate themselves—the people who might have something to hide.
; CNN reported on the subpoenas and the attorney general’s frustration over Tenet’s letter and its “chilling effect” on the investigation. “We had no choice but to issue these subpoenas,” Foti said. Tenet attorney Harry Rosenberg sent a chastening letter to the Medicaid Fraud Control Unit’s longtime director: “We were disappointed that your office served subpoenas upon Memorial personnel—many of whom are displaced from their homes and facing the hardships caused by Hurricane Katrina—particularly when I had indicated to you that Memorial will cooperate and has been cooperating with the attorney general’s office.”
Notwithstanding the displeasure they caused, the subpoenas quickly did their work. Interviews began in earnest. Eddie Castaing, a New Orleans attorney whose services were paid for by Tenet, was brought on to represent most of the Memorial employees and accompany them during their interviews. On November 1, he sat down with Rider, Schafer, and their supervisors for an important meeting. Rider summarized their discussion in a memo dated November 7, writing that Castaing was seeking immunity for two nurses, Lori Budo and Mary Jo D’Amico:
One of his clients was present on the seventh floor when injections were made for the purposes of mercy killing and participated with the doctor in administering morphine and versed. Two other nurses were also present, but CASTAING does not represent these nurses. CASTAING also advised that LIFECARE HOSPITALS personnel were present during or right after the event and were aware of what was happening. Later CASTAING’s client returned to the second floor and observed similar activities in the area where patients who had been triaged as threes (indicating that they were more critical). There was a male doctor present when this incident occurred on the second floor. CASTAING advised that he does not represent the other two nurses, but believes he could persuade them to come in if they were offered immunity. CASTAING also advised that he had spoken with one of the other two nurses and advised her to seek another attorney and that he had been unable to make contact with the other nurse.
CASTAING advised that his other client was asked to go up to the seventh floor later in the afternoon. There was one patient who was still alive on the seventh floor at that time but was experiencing agonal breathing. CASTAING’s client observed DR. ANNA POU inject the patient.
As Rider and Schafer understood it, the nurses were essentially offering to help the state prosecute Pou in exchange for their own protection. And it looked like three nurses were involved, not two as recalled by the LifeCare employees, and a fourth nurse was a witness. Rider and Schafer now believed they had the names of two of the nurses who had come to the seventh floor with Pou; their lawyer’s opinion that injecting the patients was intended to kill them; and new details about what had occurred on the second floor, including the possibility that another doctor had played a key role.
Rider and Schafer’s problem was that they could not simply interview these women and learn even more. The attorney general’s office was investigating potential murders, but it was unclear whether it would be prosecuting them. Control of criminal proceedings generally rested with local officials, in this case the district attorney of Orleans Parish, Eddie J. Jordan Jr. He would choose whether to step aside and allow the attorney general’s office to prosecute after its investigation. District attorneys considered it their duty to prosecute the cases in their parish. Recusals were relatively rare, usually stemming from ethical conflicts, and early signs were that Jordan would keep the complicated, high-profile case for himself, even though his office was considered by many to have been inept even before the chaos of Katrina, with a poor rate of convictions. The attorney general’s staff were under instructions not to communicate with the district attorney’s staff about the case.
Because it appeared that prosecution of any alleged murders might ultimately fall to the district attorney, Schafer, Rider, and their colleagues from the attorney general’s office didn’t believe they could provide anyone with full immunity. That would be up to District Attorney Jordan. For now, based on the usual terms of a legal proffer, anything the prosecutors and investigators might gain from what Castaing had told them would be tainted, in attorney parlance, like “fruit of the poisonous tree.” The information couldn’t be used in any way to incriminate the nurses, even if Schafer and Rider confirmed it from other sources, unless they could prove they would have discovered it through an alternative and natural course of the investigation.
Castaing would, years later, say he had spoken with the attorney general’s staff and requested assurances that anyone being interviewed would not be prosecuted, but he denied that he had sought immunity for the nurses, “because immunity means you did something wrong and you’re immunized for it. I never made any admission like that.” He would specifically deny and strenuously disagree that he had given an account of what allegedly happened on the seventh and second floors, although he said he did not keep notes on the meeting. “They already had those facts,” he would say of the investigators. “They told me.”
Castaing added: “It didn’t make sense for me to go in there and tell them all this incriminating stuff and say, ‘You can’t prosecute.’” However offering information in advance of any non-prosecution guarantee is just what another attorney did the following month. She took over representing Mary Jo D’Amico and made an oral proffer to Schafer and another assistant attorney general, detailing what D’Amico would say if given immunity from prosecution in the case. The lawyer wrote a letter emphasizing that the proffer was made off the record and could not be used against D’Amico either directly or derivatively. D’Amico’s new attorney even said she would, if requested, provide the proffer directly to the district attorney, too, and she had also reached out to the feds, who still had a case open on Memorial.
Schafer, Rider, and their colleagues had visited the US Attorney in New Orleans, Jim Letten, to see what federal statutes might apply. Murders were typically prosecuted by local authorities, and federal jurisdiction over them was limited. The Memorial deaths had not occurred on federal land, or during the commission of another federal crime, and none of the deceased seemed to fall within a category—for example, that of high government officials—that would make their alleged murders prosecutable under federal law. Causing a death in the course of “depriving the person of his or her civil rights under color of law” could be considered a federal crime, as could murder to further a drug offense, but these were not seen, for the moment, to apply to the Memorial cases.
The most serious federal charge the group could imagine applying was quickly rejected. A conviction for inappropriately prescribing narcotics would carry perhaps a five-year sentence, akin to punishing a hit-and-run killer for having expired license tags.
Unable to use information from any attorney proffers, Schafer and Rider pursued other avenues. As a law enforcement official, Rider had the right to demand that the companies turn over whatever they might have discovered in their internal investigations. She sent requests to Tenet and LifeCare and subpoenas for various pieces of information. LifeCare turned over a file with summaries of debriefing interviews conducted with LifeCare leaders in the days after the evacuation.
Tenet, however, did not turn over information from its own interviews with medical staff. Rider received a legal notice stating that “certain Tenet attorneys” had spoken with Dr. Anna Pou, but Pou’s lawyer, Richard Simmons, had requested that the information Pou had given be kept confidential in light of her “reasonable belief” that what she had disclosed would be protected under law from being released. An attorney for a second doctor made a similar request. Dr. John Thiele, his lawyer said in a letter, had spoken with Tenet attorneys not realizing that they did not represent him, and he had “discussed facts with these attorneys that he would not have discussed had he known.”
UNWELCOME ATTENTION from the attorney general’s minions and CNN reporters was only the latest in a string of tribulations that had dogged Johnny Thiele since Thursday, September 1, the day he had stood beside Karen Wynn on the second floor of Mem
orial and asked, “Can we do this?”
Flying away from Memorial that sunset, a sense of relief had settled over him with the realization that he had in fact survived what he’d been sure he wouldn’t. He landed at Louis Armstrong New Orleans International Airport with a posse of other Memorial staff and walked into a concourse teeming with hot, dirty, thirsty, antsy evacuees, some of them patients. No Tenet-dispatched buses awaited them as they had hoped. Fear returned and squeezed his insides. He kept it there, not wanting to alarm his colleagues. He lay down on cardboard and tucked a pliant military meal-ready-to-eat beneath his head as a pillow.
The next day he waited hours in the swirl of chaos with the small hospital group. They swayed in the pushing, pulling crowds. Teenage National Guardsmen armed with semiautomatic weapons failed to impose a sense of order. People skirmished. A nurse companion fainted. He maintained his doctor’s mien, bucking up his colleagues, but inside himself grew sure they would not make it out, that they were on the cusp of death, that any moment gunfire would erupt. “This is crazy.” He was white, his colleagues, too, and those around them were nearly all “Afro American.” And, he feared, desperate.
At last they climbed into the gaping bay of an Air Force cargo plane, where tanks had surely gone before them. It was hot. Nobody would say where they were going. The big African American man who sat across from him noticed Thiele’s silver acupressure bracelet, magnetic spheres at each end, admired it, and asked the woman next to him, honey, would you like one like that? Oh Lord, this guy’s going to… Thiele steeled himself. “You Dr. Thiele?” The woman interrupted his imaginings. “Ya.” She, a relative of a hospital security officer, didn’t want his bracelet. She told the man, “You let him keep it.” They landed near San Antonio in a storm and surrendered their bags to sniffer dogs and inspectors who worked under the shelter of an airplane wing while they stood on the tarmac, the heavens swiping them with rain. “We gotta get out of here,” the fainting nurse declared. They spoke with an Air Force somebody who put them in a cab on the way to a Holiday Inn. The Spanish-speaking driver prayed with them in the parking lot.