by Sheri Fink
Physician-assisted suicide became legal in Oregon in the 1990s (and later in Washington and Vermont, and was deemed by Montana’s state supreme court as not legally forbidden there), but at the time of Caplan’s review, most American doctors continued to reject the practice as unethical. To address the very real issues of pain and suffering in the last stages of deadly illnesses, hospitals and doctors increasingly offered palliative and hospice care programs. These employed an array of medical treatments, counseling, and support to address symptoms and keep patients comfortable rather than to attempt to cure them. Hospice was considered a philosophy and a movement to care for the terminally ill and their families, which took root in the United States in the 1970s after being developed in Britain. Because patients had to agree to forgo treatments aimed at extending their lives, caring for them was thought to be cheaper, too, and Medicare covered hospice care beginning in 1982.
For the minority of patients whose suffering failed to yield even to the most determined efforts to treat it, another strategy had emerged: terminal sedation. The idea was to render patients unconscious until death. A proposal that would have explicitly legalized the practice upon request of “mortally injured and diseased persons” had been made and voted down by the Ohio legislature in the first decade of the 1900s, but interest in it surged again in the 1990s.
Terminal sedation seemingly fulfilled the goal of relieving terminally ill patients’ discomfort without intending to kill them, but it did not do away with all ethical bugbears. A sedated person was unable to eat and drink, which would eventually lead to death, and unless the drugs were withdrawn and the patient awakened, it would be impossible to know whether the symptoms had abated. Still, in a 1997 decision that there was no constitutional right to physician-assisted suicide, the US Supreme Court supported the legality of terminal sedation. While Dr. Minyard deliberated about Memorial, the American Medical Association’s top ethics body was considering a proposal to endorse terminal sedation as a last resort under the more palatable term “palliative sedation.” (It later backed the practice in 2008.)
Some observers suggested the Memorial health professionals, if indicted, could claim palliative sedation as their defense. However, Pou’s attorney, Rick Simmons, had for the time being decided not to have Pou publicly wade into a discussion of end-of-life care issues. Louisiana, he felt, was too fundamentally Christian for the kind of discussion that would entail. It was too risky, too hot a topic.
Simmons had been frustrated to find no useful guidelines for comfort care in disasters from the American Medical Association. “I’m defending a doctor here,” he’d told leaders of the organization. “I don’t see any standards. There’s nothing there for me to go to a courtroom and say she followed these standards.” The AMA did have guidelines on palliative care, but they called for consultation with family members and documentation of the medications given, neither of which Pou had done. “Why is it that you can’t do something,” Simmons asked, “that addresses the situation when you cannot document the file, when you cannot talk with the relatives?”
Ethicist Arthur Caplan concluded that what had happened at Memorial did not fit within the purview of palliative sedation precisely because of these guidelines. If the women had intended solely to ease pain and discomfort on Thursday, September 1, then he would expect at least some documentation that the medicines were given gradually and with care. The fact that doctors, including Pou, had recorded some medication orders by hand throughout the disaster before midday on Thursday meant that, while difficult, this was not impossible. Even war hospitals kept records. The apparently rapid introduction of large amounts of drugs known to be lethal, without any prior use in these patients, concerned him. It also disturbed him that at least some of the patients did not appear to have been terminally ill. No effort seemed to have been made to consult with the family members who were present at Memorial.
He was unconvinced that the sole option to relieve any pain or suffering was to kill.
Caplan had told CNN viewers that judges and juries rarely convicted physicians and non-physicians for murder when they believed the motive for hastening a death was compassionate. Studies in 1973 and in 1987 of twenty cases of alleged euthanasia found that only three resulted in prison sentences, and those were marked by unusual circumstances including that the victim may not have been terminally ill and suffering. Similarly, juries have acquitted—sometimes on technicalities—physicians who have intentionally killed patients with air emboli, potassium chloride lethal injections, and expired Amytal Sodium sedatives. One of the few doctors to see jail time was Jack Kevorkian. He escaped conviction for first-degree murder several times in the 1990s, even as he hooked up more than 100 suicidal patients to his death machines. Kevorkian finally goaded a judge to send him to prison for second-degree murder after he videotaped himself injecting drugs into Lou Gehrig’s disease patient Thomas Youk in 1998 to put him to sleep, paralyze his muscles, and stop his heart, killing him. Previously the patients themselves, not Kevorkian, would press a button or handle on his machines to release a sequence of deadly drugs or carbon monoxide gas. Kevorkian later said he wanted to go to jail to make a point and shift public debate from assisted suicide to euthanasia.
THE HEADLINE of the February 1, 2007, New Orleans daily newspaper the Times-Picayune reported that coroner Frank Minyard had made his decision on the Memorial cases: “N.O. coroner finds no evidence of homicide.”
Virginia Rider heard the news on the radio on her way to work and couldn’t believe it. She stopped to buy the paper. What she read made her cry. A successful murder prosecution in Orleans Parish typically required a coroner’s medical determination of homicide—simply that a death was caused by the actions of another human being—without regard to fault or legal responsibility. It was a step toward a criminal finding of homicide, in which a Louisiana court assigns fault for a killing. The DA’s people had told Rider more than once that they wouldn’t pursue this case without a homicide ruling from the coroner.
At the office Rider handed the article to her colleague Butch Schafer, shaking. “Get your purse,” he said. “We’re going to New Orleans.”
Rider slapped the paper on Minyard’s desk. She sat down before him in tears. She was convinced by everything he’d told her that he believed the deaths were homicides. “How could you do this?” she asked. “How could you say this?”
There was so much local support for Pou, Minyard explained. A public homicide declaration would stir the media into a frenzy. That would look bad for the city.
What will it look like for New Orleans when this all comes out, Rider asked, when the world knows that the truth was swept under the rug? A coroner’s job was to discover and report the truth!
Minyard told her he had to consider what was best for his city, whose reputation had already suffered so much damage.
But did his own reputation concern him more?
Rider had never witnessed the level of politics that she had seen in this case. At the most, when Rider would investigate a well-connected doctor, a legislator might call on his or her behalf.
After the arrests, she had participated in a meeting with Attorney General Foti and District Attorney Jordan that Minyard had organized. One of the men suggested that if the deaths were proven to have resulted from the intentional acts of individual health professionals, this might hurt the survivors’ chances of collecting compensation from corporate defendants like Tenet in civil suits.
Rider had interviewed the family members and believed that people like Mrs. Everett weren’t motivated by money. She wanted justice for her husband. “Would you like to meet her?” Rider asked. “I’ll go get her and bring her here so y’all can meet her.” Almost before she had asked the question, the officials in the room said, “No!” That would have made the victim real. It was easier to avoid doing the just thing if the victim was only a name.
Rider was taking the case personally, while she knew she shouldn’t. A foundation of her l
ife was crumbling. Growing up in a state where politicians exploited every opportunity for corruption, she had deposited her faith in the burnished version of the American justice system her teachers had described in school. She believed in it. She believed, even to her ripe old early forties, that good would prevail over evil. She had given so much of herself to this ideal.
This case was not the usual Medicaid fraud case involving graft with public monies; it had to do with people’s lives and seeking justice for victims. Shouldn’t that be the motivation? Shouldn’t that trump politics?
In one of their bull sessions in the smoking area outside of the office, Schafer called her a “naïve little girl.” The way he saw it, she was used to going into a nursing home, finding someone stealing out of purses, and arresting that person. This wasn’t a case of investigate, arrest, and you’re done. Look at the overall picture here, he’d tell her: a city underwater, politics in the background, multimillion-dollar corporate interests, the medical profession on trial. She wanted two plus two to equal four. She had never thought two plus two could equal five. But that’s what she got. She would not accept it. She would keep digging to find that extra “one.” He had tried to warn her not to get emotionally involved, that the case would tear her heart out. And now it had.
The truth was that he greatly respected her. He watched her cry, a woman who’d been to the police academy, who toted two pistols, who had many years of experience as an investigator, whose quality of work on this case had been peerless all the way.
She had collected overwhelming evidence of homicides. She had earned the right to be disappointed, to be devastated.
Rider began applying for new jobs, a dozen in one week. On Valentine’s Day she had a promising meeting that evolved into an offer. Schafer didn’t see the emotion behind her departure as much as he saw that it would make her more money and give her the chance to become a CPA. She had ambition. He thought the move made good sense for her career. She shouldn’t stay pigeonholed in state government. In the end Schafer wasn’t Cary Grant, fighting to rekindle the passion of his jaded girl Friday for the work she clearly still loved. He let her go.
She accepted the job and left her position.
CORONER MINYARD took several phone calls from upset colleagues after the article appeared. When a New York Times reporter interviewed him about his determinations, he was coyer. He said he had not yet found evidence that the cases were homicides, but suggested he was awaiting more evidence and expert reports before he classified them. In fact, he could still make a determination of homicide when he went before the grand jury. Their proceedings were secret; what he said there would make fewer waves. Locally, though, the original Times-Picayune version of the story held sway. Pou’s attorney and members of her public relations juggernaut repeated over and over again that the coroner had found no evidence of homicide.
Minyard was, even still, struggling with what to tell the grand jury. He consulted one more expert, Dr. Steven B. Karch.
Karch had staked his career on advancing the argument that the level of drugs found in a cadaver may have no relationship to the levels just before death. Minyard had come across Karch’s name as the author of a well-known textbook on the signs of drug-induced deaths. He also came recommended by one of Pou’s most vocal supporters, Dr. John Kokemor, Minyard’s former coroner assistant and Dr. John Thiele’s “brown leaf brother” in smoking cigars on the ER ramp at Memorial. Kokemor had recently helped reopen the hospital.
Karch flew to New Orleans, where he had studied medicine and had once as a student attended a party at Minyard’s house. He examined the evidence and concluded that it was absurd to try to determine causes of death in bodies that had sat at 100 degrees for ten days. In all of the cases, he advised, the medical cause of death should remain undetermined.
To Karch, Minyard appeared convinced by his argument, which undermined those of the other experts. He seemed to agree with Karch in all cases except perhaps one.
Indeed, Minyard put great weight in Karch’s opinion, which was shared by the prominent local toxicologist retained by Pou’s attorney. However, forensic pathologist Michael Baden considered their main point moot. Whether or not it was possible to deduce the dose of drugs given to the patients, there was no arguing with the fact that the drugs were present. “These people were given Versed and morphine shortly before they died,” he explained to Minyard, “and there’s no other competing cause of death.”
Pathologist Cyril Wecht went even further in rebutting Karch. The levels detected in some of the bodies in question weren’t borderline high, he told Minyard, they were huge. He put Karch’s theory that drug levels change in decomposed tissue to the test, subjecting samples from patients who had died of drug overdoses to days of hot, humid conditions. Wecht compared the drug levels in these samples with others that had been refrigerated and found no significant differences. It was a small study, far from definitive and never vetted by other scientists or published, but it produced one more shard of evidence to consider.
Minyard imagined the case going to trial, provoking a battle royal of these forensic experts. The parish would lose the case over reasonable doubt. This, in his estimation, would not be good for the city, for the recovery. This was the bigger picture that he felt he had to consider beyond what pure basic science suggested about the deaths.
Minyard agonized. He was a man whose Catholic faith guided him. Willfully taking a life was a very bad thing. “Only God knows when you’re going to die,” he would tell his students.
The case occupied Minyard’s life, his thoughts, and the dreams that awoke him at night. He called his experts again and again for support and advice.
IN FEBRUARY 2007, Mardi Gras season returned to New Orleans, lifting spirits lowered by lingering struggles to claim insurance payouts, find honest contractors, and file and file again the often-lost applications for “Road Home” public rebuilding funds. Mardi Gras krewes paraded in the evenings, and revelers dressed for balls, but it would be hard for Anna Pou to celebrate. Her case had returned to the news.
The Times-Picayune’s Gwen Filosa reported on the selection of a new special grand jury for Orleans Parish. The previous jury had worked through a backlog of cases after Hurricane Katrina. The new one was supposed to consider the Memorial deaths. The young lead prosecutor, ADA Michael Morales, intended to use the grand jury as an “investigative tool,” a highly unusual move, Filosa reported. Rather than presenting the evidence to the jurors and seeking an indictment, as he typically did, he planned to invite the jurors to act as investigators in conjunction with the DA’s office and decide what evidence they wanted to consider. Morales said this was because the case was very complicated.
The coroner’s public comments and Rick Simmons’s lobbying had not jammed the gears of the prosecution. Now that it was clear that members of the public would decide Pou’s fate, Simmons, the publicists, and other backers began orchestrating more vocal support for Pou, though selectively so as not to incite a backlash. Leaders of the national professional organization for head and neck cancer surgery castigated the prosecutors in a press release for going forward with the grand jury despite the coroner’s public statement: “Dr. Pou’s heroism should be rewarded, not punished,” it said, suggesting that doctors and other health-care professionals would refuse to volunteer in future emergencies. “These accusations are completely incompatible with what is known of her character and her history of exceptional care.”
The kind words boosted Pou emotionally, but in the days before the grand jury was set to convene, she felt “very alone, very abandoned and very betrayed,” she would later say. She ran into an old friend she hadn’t seen in a quarter century. The woman invited her to come to Father Seelos’s. “What’s Father Seelos’s?” Pou asked her. The woman said it was a place for healing. “Get in my car,” she offered.
She drove Pou to a downtrodden corner of New Orleans’s Irish Channel neighborhood on Constance Street, where a redbrick church,
St. Mary’s Assumption, rose up before them.
On its grounds was a shrine to Father Francis Xavier Seelos, “the Cheerful Ascetic,” who had served briefly there as a Redemptorist Catholic pastor in the nineteenth century and was known for his concern for the poor and abandoned. He had cared for yellow-fever victims and died of the disease himself in 1867, a year after coming to the city. Pope John Paul II beatified him in 2000.
Pou began to visit almost daily when she was in New Orleans. The workers at the shrine taught her again to have faith. God had sent people to help her, and she came to believe in Father Seelos’s ability to heal the body and soul. She needed “a lot of healing of soul and heart,” she’d say. There were times she was depressed, moments she found it difficult to continue, days when friends, hearing despair in her voice, suggested gently that maybe she should “talk to somebody.” Her steel magnolia mother told her God would take care of her. Pou prayed with the people at the shrine and found the strength to go on, she said, “thanks to the grace of God, the greatest healer.”
Pou spoke nearly every day with Rick Simmons. She shared her anxiety and details she could discuss with nobody else in often lengthy, tearful conversations. She followed his advice not to watch the news, and she let him handle media inquiries and a stack of interview and book proposals. He had not yet committed to any of the offers, instead advising Pou to explore options for marketing her story if she was indicted, because the legal costs would be huge.
Pou knew the local public was behind her and the two nurses because Simmons had commissioned a poll of the potential jury pool to help him decide whether to move for a change of venue. He found, as he described it, that 76 percent of Orleans Parish residents supported the health professionals and opposed an indictment. Only 8 percent wanted them to be indicted, and the rest were undecided.