by Sheri Fink
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 Memor
ial 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.