by Sheri Fink
Simmons also coordinated with a team of roughly two dozen lawyers representing other Memorial staff members, who shared information with one another. In late April, as the grand jury was preparing to hear testimony in the Memorial case, the attorneys had gathered to plot media strategy. They wanted to make the point that health workers wouldn’t stay in New Orleans if the prosecution went forward.
The plan was to push for health worker immunity in future disasters; Simmons wanted statutory protections. Pou derived meaning from a new life goal—ensuring that what had happened to her and the others at Memorial would never happen again. The group would consider increasing the visibility of their public relations activities as hurricane season approached—it was a time of year when it would look particularly bad to indict doctors.
Simmons also kept up the pressure on coroner Frank Minyard and the prosecutors with conference calls, visits, and hand-delivered documents followed by—several days later for the deliberating coroner—a letter with exhibits that took hours to prepare. A trial, Simmons warned, would be a “media circus” that would set back the city’s medical recovery. His expert toxicologist and pathologist were ready to engage in a forensic fight over the evidence.
THE WEEK AFTER Pou’s fund-raiser, the district attorney served subpoenas on Cheri Landry, Lori Budo, and Memorial nurse manager Mary Jo D’Amico through their lawyers. The good news in an accompanying letter was that the district attorney had decided not to prosecute them. The bad news was that he was compelling the women to testify without counsel before the grand jury so he could find out what they knew about Anna Pou.
The deal was this: in light of their Fifth Amendment privilege against self-incrimination, the women’s testimony and any information derived from it could not be used against them in a criminal case, except if they gave false statements or otherwise failed to comply. Judge Calvin Johnson of Orleans Parish criminal district court, who had signed the arrest warrants in the case, now signed the order for the nurses to testify. The women’s lawyers fought the subpoenas all the way to the state supreme court. With no statute of limitations for murder, the women could always be prosecuted in the future. Cases against them could be built on other evidence. Their lawyers pointed to an ongoing case with similarities to Memorial. Seven New Orleans policemen stood accused of shooting unarmed civilians on the Danziger Bridge after the storm, seriously injuring four and killing two. Police then attempted to cover up the events. Three of the seven accused officers, including the former night student and law clerk for ADA Michael Morales, had been forced to testify under similar conditions of immunity. However, all seven were eventually indicted by the special grand jury that had heard their testimony—the special grand jury that had sat before this one. The same could happen to the Memorial nurses, their lawyers contended.
Supporters of the Danziger Bridge Seven, just like supporters of the Memorial Three, argued that their actions should be judged by a different standard from the one normally applied because they occurred in the confusing, dangerous environment of a disaster. The supporters’ arguments echoed those of the television attorney defending the fictionalized Anna Pou character on Boston Legal: New Orleans at the time of Katrina had not been America, so the accused should not be held to America’s laws and professional norms. Colleagues had come out strongly in favor of the accused police officers, chanting “Heroes!” and applauding them in front of news reporters as the men walked into jail to be booked on murder and attempted-murder charges, and clearing them in an internal police department investigation. At the rally, the local police association handed out forms asking fellow officers to donate part of their paychecks to the men’s families while they were being prosecuted, the Times-Picayune’s Laura Maggi and Brendan McCarthy reported.
On June 13, 2007, Louisiana Supreme Court judges denied an appeal challenging the subpoenas for Lori Budo, Cheri Landry, and Mary Jo D’Amico. The nurses would have to testify before the special grand jury.
A FOURTH MEMORIAL nurse received word from her lawyer that she, too, would be asked to testify. It was Budo and Landry’s supervisor at Memorial, nurse manager Karen Wynn. One of Wynn’s colleagues had told the attorney general’s investigators that Wynn had spoken to her about people being euthanized on the seventh floor. Wynn wouldn’t deny it. “Even if it had been euthanasia,” she would say, “it’s not something we don’t really do every day—it just goes under a different name.”
After having helped inject patients on the second floor, Wynn had emerged from the disaster confident in what they had done for the patients. “We did the best we could do,” she would say. “It was the right thing to do under the circumstances.”
The only decision she questioned was having put her sixteen-year-old daughter on a helicopter out of Memorial without her. The child had experienced a difficult journey to safety, and Wynn heard her tell others it made her question her belief in God. That broke Wynn’s heart.
Wynn was also concerned about her two arrested nurses. Their lawyers had told the women under scrutiny not to talk to one another—they could be accused of colluding—but Wynn and others ignored that advice, checking in to see how the others were doing.
In advance of Wynn’s possible grand jury date, her attorney prepared her to testify. She told her what types of questions to expect and made sure Wynn’s message was clear and consistent. The lawyer was patient and kept her up to date on the legal proceedings. She was fierce and protective, and Wynn came to love her, but talking about the events felt like reliving them. Sometimes after their meetings, it took weeks to find her way back to feeling OK, to move forward in a different direction and get beyond what had happened.
Wynn supposed it was post-traumatic stress disorder. She recognized its symptoms in herself and in her colleagues, figured they were there for life.
For the moment, the dedicated nurse didn’t want to be one anymore. She made light of this, joking that she wanted to grow up and sell shoes at Saks Fifth Avenue instead, but she felt she had given up a part of her soul at the hospital, sacrificed it. She thought of the many times in her quarter century of work there that she had put patients and her career as a manager ahead of time with family. She recalled the fifty- or sixty-hour work weeks and the fact that it was she who had called Cheri Landry and Lori Budo to tell them they were on the schedule for the storm. She no longer wanted that kind of responsibility; that feeling had been building even before Katrina. She felt worn.
After everything they had been through in those five days, to have their integrity questioned, to be facing the possibility of going before a criminal grand jury investigating a colleague for murder, was unbearable. Wynn awaited the call to testify, but for her, unlike the others, it didn’t come.
THE SAME DAY the other nurses were scheduled to testify, Anna Pou’s patient James O’Bryant was given a choice. A scan showed that his cancer had advanced through the bones of his face and reached his brain. Pou was still practicing only at the public hospital, not the private hospital where O’Bryant was being treated, and her colleague Dan Nuss, who had recently performed another extensive operation on O’Bryant, told her about it. Nuss had cried when he gave the news to O’Bryant, only fifty-three years old, who touched him on the shoulder and told him he knew Nuss had done everything he could. It was the day before the O’Bryants’ thirty-second wedding anniversary. The choice was between chemotherapy, which Nuss felt would only make him sick, or stopping anti-cancer treatment altogether and going into hospice, meaning O’Bryant would receive care focused on controlling his symptoms and keeping him as comfortable as possible until he died. O’Bryant chose hospice.
Pou called his wife, Brenda. “How did he take it?” she asked. Brenda said they weren’t happy but were kind of OK. Pou invited Brenda to call her morning or night, any day of the week, twenty-four hours a day. Pou phoned repeatedly to check on them. She told Brenda she would try to visit.
AS THE ANNIVERSARY of the arrests approached, the American Medical Associat
ion published the first issue of a new journal on disaster medicine, with a photograph of a post-Katrina shelter on its cover and a preliminary report suggesting the death rate in New Orleans had risen dramatically after the storm. Several articles cited Pou’s case as an argument for new disaster-medicine policies.
In late June, prominent doctors from across the country converged in Chicago for the AMA’s annual meeting. Inspired by Anna Pou’s case, the AMA’s ethics council, whose appointed members served as custodians of the organization’s code of ethics for the medical profession, held an open forum to consider whether and how normal medical standards should be altered in disasters. AMA policymakers also planned to vote on a proposed campaign for state laws that would make doctors automatically immune from liability in disasters unless they acted maliciously, even if their care was grossly negligent. Only a minority of American physicians were said to claim membership in the AMA, and many opposed its policies, but the professional organization exerted considerable legislative influence through richly funded lobbying and political donation wings.
Rick Simmons appeared at the Hilton Chicago to speak in favor of both proposals. Wearing a dark suit with cufflinks and a sapphire tie, a matching handkerchief in his left breast pocket, he took the microphone beneath immense chandeliers in the hotel’s international ballroom. Simmons warned that when medical resources were overwhelmed, some patients would have to go untreated and die, their lives sacrificed for the greater good based on factors including DNR orders and physicians’ fears for their own safety. Family members would inevitably sue, meaning doctors were in peril all over the country, at all times, should any number of emergencies caused by nature or terrorists occur. If doctors were to “answer the call” in such situations, they would need to be protected. Simmons reminded the crowd of the AMA’s long-standing opposition to criminalization of doctors’ medical judgment.
He argued that national guidelines on end-of-life care, which included post-Nazi protections such as seeking consent of patients or their proxies and documenting decisions and actions, weren’t appropriate for a time of catastrophe when those steps were “not available,” and it was up to doctors to exercise their own judgment in good faith.
Simmons held up the example of the World Medical Association guidelines Pou had sent him after the Houston symposium. Doctors could ethically separate “beyond emergency care” patients from others and sedate them.
Public officials, he pointed out, were immune from prosecution for certain mistakes in judgment. Why not legislate the same immunity for medical workers in disasters?
Simmons proposed a federal law to rein in state prosecutors and bereaved family members by mandating that any complaints about a doctor’s actions in a disaster be reviewed by other doctors instead of lawyers and judges. To temper the appearance of self-interest, he suggested including a victim-compensation fund to satisfy the family members of the dead.
He concluded, thanking the AMA on behalf of Dr. Pou and expressing his and her hope that no more doctors would have to endure an ordeal such as hers.
The AMA delegates voted to create model legislation to shield disaster doctors from civil and criminal prosecution. Members would be encouraged to lobby nationwide for a new standard for conviction that would require proving a doctor set out with malice to hurt a patient. The AMA would also strengthen existing efforts to oppose criminal prosecution of doctors by adding an emphasis on doctors in emergencies.
Without a jury or a judge having yet ruled on Pou’s case, without Pou having shared publicly what she had done, organized medicine’s main response to the alleged murders at Memorial was to close ranks and defend itself.
THE DAY BEFORE the first anniversary of Pou’s arrest, Simmons launched an attack on the attorney general, filing an invective-filled lawsuit on behalf of Pou and distributing copies to the media.
As an LSU physician, Pou was a state employee, and the suit demanded that the state pay Simmons’s legal fees for her defense in several civil cases brought by families of the dead, including Emmett Everett. “The State of Louisiana abandoned Dr. Pou and others during Hurricane Katrina and now she is being abandoned again by the State’s denial of a civil defense,” Simmons wrote, accusing the state of forcing the doctors to “save who they could save.”
Simmons’s petition circumambulated, veering from legal arguments to a personal takedown of Attorney General Foti. It called his conduct in arresting Pou and the two nurses improper and unethical, drawing parallels with a sensational case in another state.
Days earlier, Michael B. Nifong, a North Carolina district attorney who had prosecuted several Duke University lacrosse players for allegedly raping a stripper, had been disbarred for having tried his case in the media and misleading the public about evidence that was later revealed as false.
Nifong’s case “demonstrates the dangers in extra-judicial comments by prosecutors,” Pou’s suit said, suggesting that many of the charges against Nifong could be made against Foti, who had vehemently criticized the women he arrested and whose press conference caveats had been edited out of news coverage.
Pou’s suit alleged that Foti, like Nifong, sought to capitalize on a high-profile case to bolster an upcoming reelection bid. As evidence, Simmons attached a copy of an invitation to a $500-per-head cocktail fund-raiser at the fancy Windsor Court Hotel in New Orleans, held three days after the arrests, which perhaps explained Foti’s insistence to his staff that the arrests take place when they did.
Attorney General Foti’s public information director, Kris Wartelle, didn’t need the Nifong case to put a scare in her. She already girded her tongue when speaking with the media. She often lamented to reporters that Pou’s people were free to say anything they wanted about the events at Memorial, and did, while the prosecutors were bound to say nothing about all the evidence they possessed.
CORONER FRANK MINYARD LIKED to interact with defense attorneys, and he particularly liked Rick Simmons. The men were from the same part of New Orleans, downtown. That inspired a kinship, though Simmons was younger. Most people were younger. Minyard tried to give defense attorneys what they wanted, do what they wanted. He never wanted it to be said that he was acting as a doctor for the police or the DA. He wanted it said that he was a doctor for truth. He called his office his palace of truth. He’d told that to Mike Wallace years ago in an interview on 60 Minutes, a tale he never tired of recounting.
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.”