by Sheri Fink
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 taugh
t 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.
It was a warm day, with thunderclouds chasing sunshine. Cicadas droned and red-faced ducks paddled in a pond behind the pillars of City Park’s peristyle, where hundreds of people gathered, spilling outside and opening umbrellas against the intermittent rain. The downpours stayed just light enough to avoid forcing a cancellation of the sort that scuttled the 1926 May Day fête in the very same spot, where moss-draped live oaks had stood rooted for hundreds of years.
Several supporters of Buddy Caldwell, one of Attorney General Foti’s opponents in the upcoming election, stood to the side wearing campaign stickers. Other attendees held cardboard signs: THEY STAYED. And: FOTI IS ANOTHER NIFONG.
ICU nurse Cathy Green walked up to the podium in blue scrubs and looked down at her prepared remarks. “Many of you worked at Baptist during the storm with Dr. Pou. I know you thought our rescue work was done. The storm was almost two years ago. But we are not done. We are called to another mission. We must seek justice and exoneration for the one person who is carrying a burden for our whole hospital, Dr. Anna Pou.”
Speakers included a nurse, a clergyman, one of Pou’s brothers, and Dr. Dan Nuss. Some of them aimed their comments directly at the grand jury members, who had not been sequestered and could freely watch news coverage. The speakers warned that medical professionals, whose ranks had already been depleted by Katrina, would flee Louisiana in droves if a doctor was indicted after serving in a disaster. They read aloud a joint statement from the American Medical Association and American Nursing Association urging “that strong consideration be given to the harmful repercussions of continuing the prosecution of this case.”
DR. JOHN THIELE stood in the crowd, well aware of those repercussions. He had endured an even more punishing year than Pou, although few people had learned about his role in the Memorial deaths, namely that he had injected patients beside her.
After the arrests of the three women, Thiele’s attorney had told him, “If someone rings the doorbell, be ready.” Sitting across from Thiele in a small office, the lawyer had outlined four possible charges: first-degree murder, second-degree murder, manslaughter, and negligent homicide. All were felonies. A conviction on any one of them would mean the loss of his medical license. “Prepare what you’re going to do,” the lawyer advised.
“I’ll fight it,” Thiele said at first, but if the jury found him guilty, he would go to jail, losing his freedom and his family. He knew he could not live in jail. He was too family oriented and had too many friends and relatives. The lawyer asked what he thought about a plea bargain that might get the charges reduced to negligent homicide. That would still mean losing his medical license. If that happens, Thiele wondered, how can I do what I was born to do? His vocation was to care for people, help people, make a difference in their lives.
All year whenever his doorbell rang, he seized up with the thought, I’m going to jail. In his gut he felt he should fight the charges, but if his attorney could plead him down to a lesser charge with no prison time, he would grab that. He could live without his medical license, he decided, but not without his freedom. He would find something to substitute for doctoring.
He’d been able at times to laugh about the storm, once gathering with a few other Memorial kin for a night of drinking and reminiscing. Sitting out on a colleague’s dock on a canal just off of Lake Pontchartrain, Thiele read aloud a top-ten list of memories he had drawn up in the style of David Letterman’s late-night television comedy show. Number six: eating peanut-butter-and-jelly sandwiches by candlelight, serenaded by a nurse on violin. Another was coaxing a friend’s dog to pee in the parking garage by peeing there himself, and lying on the carpet of a medical office, petting the dog, looking into her eyes, “both of us thinking, ‘I don’t need this shit.’”
Thiele recalled taking turns with friends sitting in his car to cool off, listen to classical music, and recharge their cell phones from the car battery with the motor running, while they wondered if they were in a good spot not to get shot by snipers… then discovering at the gas station after the storm that from the Saturday before the hurricane to the Thursday after it, the car had averaged 0.7 miles per gallon.
Number one on his top-ten list was an expression of gratitude. “Thanking God over and over again for surrounding me with such great and special people facing this hellacious ordeal.”
Thiele’s life had remained stressful. As his lawyer fought to keep his statements to Tenet from being released to the attorney general’s office, his legal bills mounted, far exceeding the total in the medical staff slush fund, normally used for banquets, that had been set aside to help several doctors after Thiele’s appeal for support at the medical staff meeting the previous December. Tenet higher-ups balked at paying to defend him, arguing that he wasn’t an employee and hadn’t been required to stay for the storm. How absurd, when he had been called upon to care for Memorial patients whose doctors were unreachable after the storm hit. He worried he would have to mortgage his home, and it was not clear whether threatening to tell his story might convince the company to pay.
Thiele had recovered from the stroke he experienced days after leaving Memorial, but over the course of the year, he lost a great deal of weight. He chalked it up to the stress of the investigation. He skipped a colonoscopy, recommended for men his age.
In February, the month the grand jury was selected, he’d experienced a few days of pain in the lower left side of his abdomen. He thought it might be a hernia or diverticulitis, a painful infection in an outpouching of the intestinal lining. He was admitted to a hospital.
“Suppose you had cancer?” his wife, Patricia, asked.
“Whatever it is, we’ll handle it,” he told her before being wheeled to the operating theater.
His surgeon, Dr. John Walsh, whom he knew from Memorial, discovered a tumor that had blocked off and killed a large portion of bowel and seeded his liver and spleen. It was advanced, metastatic colon cancer. Walsh marveled at how tuned out of himself Thiele had to have been not to notice how sick he was. He attributed it to the stress Thiele had been enduring as a subject of the attorney general’s investigation, his worries over becoming the next Anna Pou.
Thiele did not awaken that day. He developed a life-threatening infection in his abdomen that spread to his blood. He was taken five times to the operating room, given blood transfusions, and kept sedated and mostly unconscious for weeks with a milky, hypnotic drug called propofol.
There were awful incongruities. Thiele, a lung specialist, developed severe breathing problems and lay in the ICU on a ventilator attached to his neck through a tracheostomy.
Since well before the storm, after his mother died peacefully of lung cancer at his home on hospice, he’d had a passion for caring for patients at the end of life and counseling their families about “when to say when,” when cure was not possible and another test or procedure made no sense. Now his own wife was being warned of his grave condition and asked about their end-of-life preferences.
By all accounts, Thiele had very little chance of surviving or, if he did, emerging without significant damage to his brain and other major organs. As his health problems mounted in the foreground of advanced cancer, it was time to consider whether to keep treating him aggressively.
His wife had no question about what she wanted for him—the most aggressive treatment possible. The doctors and nurses, many of whom knew him, concurred.
As Thiele passed weeks in a half-conscious limbo, there were certain things that even a drug known for causing amnesia could not erase. He experienced what he later described as nightmarish distortions, visions of monsters and pods. Many times he was underwater, struggling to surface, only to feel someone pushing him down.
Rarely during this peri
od of sedation did he communicate with the people around him. Dr. Horace Baltz’s niece was a nurse who tended to Thiele in the ICU and had also served at Memorial after the storm. Thiele seemed terrified to her. When they spoke briefly during his hospitalization about the events at Memorial and his role in them, she believed he was remorseful, that he’d thought he was doing something compassionate for the patients he injected, but wished he could do things differently.
Thiele later said that was not true. He did not recall ever having felt that way. No, he was confident in what he had done. After a month in death’s shadow, he still saw a difference between himself and the people he had helped inject at Memorial. True, in twenty-five years of practicing in the intensive care unit, he had rarely if ever seen a patient go through what he did and live. He had developed nearly every sign known to predict poor survival in the ICU. Still, and this was crucial, every problem he had was potentially reversible.
If the family members of a patient in a similar condition had come to him for doctorly advice, he would have painted a hell of a bad picture for them, letting them know, realistically, that recovery was unlikely. But he would have kept going, kept treating a patient like himself because there was nothing that happened to him that couldn’t get better with good fortune and the grace of God. Potential reversibility, that was key; it differentiated his constellation of illnesses from those of some of the patients at Memorial.
“You got special care,” someone suggested. “You’re a doctor.”
“This wasn’t in the hands of man,” Thiele replied. “This was in the hands of God. I shouldn’t be here. The fact that I came out with my kidneys intact, my brain intact, and went back to some degree of normalcy is just miraculous. There’s no other word for it.”