by Sheri Fink
During the disaster, Memorial’s cancer institute, with its working lights and fans and power, and its comfortable chemotherapy recliners, had been a source of refuge. Now chemotherapy from another cancer center was keeping him alive.
As the grand jury process progressed and Thiele recovered, his well-connected attorney asked for permission to use the fact of Thiele’s illness to try to forestall any attempts to involve him. “Hell yes,” Thiele told him, “if it will keep me from being prosecuted.”
Thiele’s dedication to his medical practice was prodigious. He returned to work, making rounds to see patients wearing his chemotherapy pack.
Later he learned that one of the nurses had been asked about him at the grand jury. From what he heard, she’d simply acknowledged that she knew him and said he was a good doctor. She hadn’t spilled the beans.
His attorney had forbidden him to communicate directly with Pou and the nurses out of a fear that they could be accused of conspiring. Thiele felt for Pou and felt terribly guilty that he was not sharing her angst as the jury considered her fate. He was happy to attend the rally to support her.
DR. HORACE BALTZ resented the thrust of what he began calling the “euthanasia rally.” By warning that an indictment would lead medical professionals to leave New Orleans, Pou’s supporters were threatening to abandon their patients if the issue wasn’t resolved to their satisfaction. It was ridiculous, irrational. It undermined the trust of society in the medical profession. How dare these educated professionals hold a gun to the head of the community and say, “You do what we want!” Never had he seen such a constructed, hysterical response to serious allegations.
Anna Pou did not appear at the rally, but it was infused with her presence. While friends speculated that the events had “really taken a toll” on Pou’s marriage, her husband, Vince Panepinto, came to support her as he had at the Houston fund-raiser. Pou was watching, in a sense, through him as he stood with a video recorder in the crowds. Pou spoke to her faithful in a statement read by her brother Michael that quoted from Isaiah: “‘For I am the Lord your God, who takes hold of your right hand and says to you, Do not fear, I will help you’… and this is exactly what God has done for me.”
Pou was, that day, performing surgery at the public hospital in Baton Rouge, two complicated operations that lasted from the morning of the rally until midday the following day. She returned to the hospital that night when one patient developed a complication.
Her former patient James O’Bryant was also on her mind. Over the previous week, she’d spoken with Brenda, who said he had stopped eating much, grown so weak he could barely walk, and had trouble sleeping. The hospice nurse measured his remaining life in days.
Pou told Brenda she had been so busy with the rally planning and other work that she’d had difficulty making time to get there. Her colleague Dr. Dan Nuss had visited, and the day before the rally, Pou asked for directions. “I’ll be there this evening,” she said, and took a long detour on her trip from New Orleans to Baton Rouge to stop at the O’Bryants’ little red house on the bayou.
“Dr. Pou is here!” Brenda said to James. Pou climbed onto his bed and hugged and kissed him. He opened his good right eye. The left socket gaped downward toward a reconstructed cheek several shades lighter than the rest of his skin. Below, an area of black nothingness bordered his nose.
“Do I see a grin on your face?” Pou asked.
James said something Pou couldn’t understand, in a morphine-garbled voice further handicapped by his disfigurement. Brenda, thrilled to see him smile, translated: “How are you doing? Are you OK?”
“Don’t you worry about me,” Pou said. “I’m gonna be all right. I’m gonna be OK.”
It was what she always said. But James had worried about her, even cried over her situation. “It’s just not fair,” he’d say. Brenda wanted more than anything for James to know the uncertainty was over for Pou before he died.
Brenda asked after Pou’s husband, saying it must be as hard for him as it was for her. Pou said they had their good and their bad days, but they were doing all right.
THE GRAND JURY met again that week of the rally as storms lashed the city, hard rain and lightning strikes so strong they made the ground tremble, made clapboard homes shudder. New Orleans felt cursed.
The weather was one more punishment to a population fading into the malaise that inevitably follows an early jolt of post-disaster optimism and solidarity, people’s fight ebbing in the face of mounting evidence that rebuilding and repairing would take years, and what was lost could never fully be regained. Whereas the rest of the country had largely moved on, people in New Orleans still spoke of Katrina every day, and not a day went by without the once-innocent girl’s name appearing on the Times-Picayune’s front page, often within stories recounting an outrageous abuse or failure of official power.
At their meeting, the members of the special grand jury stopped hearing evidence and signaled that they were ready to decide. They had taken an oath to make “all indictable offenses triable”—to indict when warranted, allowing a trial to take place—and keep secret what had gone on there. The assistant district attorney, who had examined witnesses in front of them, was their legal advisor, but they were to deliberate and vote alone. In his closing instructions, he urged them to act on what they believed. If you believe these facts, then this is what you should do. If, on the other hand, you believe this other thing happened, do that.
An indictment required nine grand jurors to agree. The jury consisted of twelve members when all were present. They had broad latitude. They were to indict if they believed the evidence warranted conviction. There were very few grounds on which an indictment by a grand jury could be quashed.
The evening before the grand jury return was scheduled, the medical staff of the partially reopened hospital, now owned by Ochsner and once again called Baptist, gathered at the New Orleans Country Club for the first medical staff banquet since Katrina. The banquet slush fund seemed to have been replenished. The Times-Picayune’s social columnist reported on the foie gras canapés, turtle soup and boiled shrimp, main courses of Chateaubriand and crabmeat-topped trout, and mini French pastries.
The next morning, July 24, 2007, ten grand jurors arrived at the New Orleans criminal courts building, where Minyard had survived Katrina. The structure’s high ambition and modest upkeep were evident even with the gloss of FEMA funding after the storm. In its soaring, marble-paneled second story, the jurors gathered in the Section E courtroom beneath vaulted ceilings, massive windows, and Art Deco chandeliers with missing lightbulbs that swayed in the air-conditioning. Fading letters high up beside the entry door were painted between black marble pillars, quoting the eighteenth-century English legal scholar Sir William Blackstone: HVMAN LAWS ARE ONLY DECLAMATORY OF AND ACT IN SVBORDINATION TO DIVINE LAW.
Eight women and two men appeared for the vote. Six were white and four were black. One grand juror had died and been replaced. Observers gathered in the churchlike pews facing the words of the Louisiana state motto: “Union, Justice, Confidence.”
The district attorney’s office had prepared a ten-count bill of indictment against Pou for the grand jury to consider: one count of second-degree murder in Emmett Everett’s case and nine counts of the lesser conspiracy to commit second-degree murder, one for each of the LifeCare patients on the seventh floor, including Everett.
This meant that the grand jurors had been asked to decide whether the evidence they heard persuaded them that Pou had “a specific intent to kill”—part of Louisiana’s definition of second-degree murder.
Judge Calvin Johnson read aloud the ten counts of indictment. Then he turned over the paperwork to read what the grand jury foreman had handwritten. “Not a true bill.” The grand jury had declined to indict Pou on every charge.
A CROWD of reporters, already at the courthouse covering the acquittal of a former police officer accused in the videotaped beating of a man after Katrina, was tipped off i
n advance of the hearing. The journalists surrounded Assistant Attorney General Julie Cullen as she exited the courthouse steps. “It’s our position that it was homicide,” she said.
Reporters trod the stained carpets of District Attorney Eddie Jordan’s temporary offices to hear his contradictory view. “We respect the decision of the grand jury,” he said in a press conference. “I agree with the grand jury.” The case, in New Orleans, was over.
That evening, prosecutor Michael Morales looked over at the boxed-up evidence from the case in a corner of his small office. This was the last homicide he would prosecute in New Orleans. His unit had been disbanded and another was taking over. He was being sent to work on other felonies. He insisted he didn’t feel one way or another about the outcome of the case, didn’t care. The abiding lesson he took from it was the need to evacuate in advance of future storms.
His office had received condemnatory letters every day for bringing a case against Pou. He would later admit that he and DA Jordan “weren’t gung-ho” about prosecuting the case and that his direct boss, the gruff ADA Famularo, had not hidden his ambivalence. “We were going to give some deference to the defendant. We weren’t going to just rush in and indict her,” Morales said, because Pou wasn’t the usual career criminal accused of murder. At the same time, because a judge had signed a warrant to arrest Pou and multiple witnesses were willing to testify, “we weren’t going to shirk our duties and tank it.”
He believed he knew what had happened at Memorial and that the special grand jury did too. Why else would they have signaled they needed no more evidence and were ready to vote?
What he wished, as a former history major, was that the information the grand jury had collected did not have to be kept secret from the public. Perhaps a congressional hearing would have been a better way to reveal the truth, he reflected. He believed there would never be an open debate about what happened.
ATTORNEY GENERAL FOTI held a press conference that day in Baton Rouge. His staff handed out copies of the forensic expert reports concluding the Memorial deaths were homicides. He criticized the grand jury for failing to hear from the experts and from family members of the dead.
Several days later, he published an op-ed in USA Today:
While you may argue that Dr. Pou was under immense pressure, is this an excuse for her alleged actions? I cannot accept this argument. What is the value of human life? What circumstances justify taking human lives? These are the questions this case raises.
For my part, I will stand for human life and the victims of crime.
Weeks later, in September, a jury in St. Francisville, Louisiana, acquitted the owners of St. Rita’s nursing home, Sal and Mabel Mangano, on all thirty-five counts of negligent homicide and twenty-four counts of cruelty to the infirm that Foti had brought against them. Six weeks after that, following a campaign by Pou’s supporters to unseat him, Foti lost his reelection bid. He ran last in a primary field of three.
Before Foti left office, his Medicaid Fraud Control Unit closed the post-Katrina investigations into other health-care facilities, including Lindy Boggs Medical Center, where the sickest patients were left behind with the pets and three medical professionals; and Touro Infirmary, where Odun Arechaga was abandoned for dead and later found alive. “A successful prosecution is unlikely,” two of the closing memos said. Federal officials also shut down their part of the joint hospital and nursing home investigations, noting the “unsuccessful results” of the Memorial and St. Rita’s cases.
AT A PRESS CONFERENCE the day of the grand jury return, a reporter asked Pou what she thought of the attorney general. “I’m putting Mr. Foti in God’s hands,” she said with the grace of a martyr. “I’m praying every day.”
The reporters had come to a hotel meeting room anxious to hear what Pou had to say as she broke a nearly yearlong silence. Her family members lined the walls. Her press representative, Greg Beuerman, and her attorney, Rick Simmons, stood on either side of her.
Pou looked angelic in a pale peach suit. She described being at home with her husband, Vince, when she received the news from the grand jury. “I fell to my knees and thanked God for helping me.”
She thanked her family in tears and expressed her hopes. “No healthcare professional should ever be accused in a rush for judgment.”
What the reporters really wanted to know, Pou refused to share. She would not say whether she had injected patients or what her motivation might have been. Her defense team raised the ongoing civil cases like a shield against the questions. Besides, another grand jury could always reconsider murder charges. It was unclear whether Pou would ever tell the world exactly what she had done and why.
Away from the reporters, she called Brenda O’Bryant to share the news. James was still hanging on, sleeping all the time, no longer visibly conscious. The medical people had said there was no reason he should still be alive. Brenda took to calling him “the bionic man.”
“Be sure to tell him right in his ear,” Pou said, “so he’ll know.”
She thanked Brenda for all the prayers James had said for her. “Tell him I’m praying for him.”
Pou continued to practice surgery and went on to become a popular national lecturer on “ethical considerations” in disaster medicine. In her talks, she rewrote history. “FEMA called us and said we’re taking the airboats at noon,” she said as the keynote speaker at a conference registering nearly a thousand California hospital executives and health professionals, who gave her a long ovation. “So whatever you can get out of the hospital get out because they can no longer stay.” In all the months Virginia Rider and Butch Schafer had investigated events at Memorial, and in all the years of stories journalists had written about the disaster, nobody had made that claim.
Standing on stage, her voice booming through the large hall, Pou said that in addition to no running water there was “no clean water” at Memorial—though investigators found a large amount of bottled water left over after the evacuation—and she asked audience members to put themselves in the position of deciding who should get the last bottle of drinking water—an employee or a patient, “Who gets it? Who gets the one bottle of water?”—a decision that was never necessary at Memorial.
“The Coast Guard helicopters did arrive,” she said, “late Thursday afternoon.” She spoke as if helicopters had not arrived early on Thursday morning—documented by the pilots, cacophonous, and later recalled by LifeCare staff members present as Pou gathered drugs and supplies to inject the patients (Pou’s attorney, Rick Simmons, counters in a letter: “The obvious effect of that type of contention would be that the helicopters were awaiting right outside and ready to evacuate patients. This is just not so. […] We flatly deny this new contention of ‘loud helicopters’ during the morning hours”). Pou also did not say that the Coast Guard came to rescue patients on Tuesday afternoon, the day the floodwaters rose, and throughout Tuesday night, and into Wednesday morning—despite Memorial employees having tried repeatedly to send the helicopters away after deciding it was too dangerous to conduct the evacuation in the dark and that staff needed rest. “I should note that, something I didn’t know: Helicopters cannot fly at night,” Pou told the audience, years after a colleague at her Houston fund-raiser had gently tried to relieve her of this mumpsimus.
Embellishing the profound hardships she experienced might have been inconsequential except for the fact that as Pou lectured to medical groups around the country, she used these stories—juxtaposed with the fact of her arrest—to convince her audiences of the need to crusade for immunity laws that would prevent people from suing and prosecuting medical professionals in future emergencies. In her talks, Pou sometimes flashed her mug shot on the screen, but she did not say that she was arrested for having allegedly murdered patients, not for having made the challenging and controversial triage decisions she discussed. In fact, she left out mention of injecting patients entirely. In lectures to hospital executives in Sacramento, disaster preparedness planner
s in Chicago, doctors in Texas, and attorneys in New Orleans, she did not discuss or explain the decision she and her colleagues made to medicate at least nineteen patients on Thursday, September 1, all of whom died as helicopters and boats emptied Memorial.
Pou took issue with the AMA’s ethical directive for doctors to serve in emergencies “even in the face of greater than usual risk.” Pou said, “The duty to care sounds easy, great. It’s not always so; it’s more romantic on paper.” Pou concluded her Sacramento talk by sharing her views on handling the media in disasters: “Restrict them and use them to the best of your ability.”
After Attorney General Charles Foti released the forensic experts’ findings to the media, litigation ensued, with dozens of hospital employees fighting—as “Jane Does” and “John Does”—to protect the balance of the Medicaid Fraud Control Unit’s thousands of pages of investigative case records from public disclosure. The Times-Picayune and CNN led a multiyear effort to force the state to produce what the organizations viewed as public records. Anna Pou filed a brief supporting the Does’ position that the records should be kept secret. A lower court’s ruling that the records should be released was reversed on appeal, and—after numerous actions that led the Louisiana Supreme Court to consider the issues—in 2012, the Does prevailed. The files remain sealed because courts ruled the case was not over and more prosecutions were possible.
In fiscal year 2009–2010, at Anna Pou’s request, the general fund of the state of Louisiana paid $456,979.41 in legal fees and expenses for her successful defense, reimbursing the LSU Health Network and the Dr. Anna Pou Defense Fund.
Claims brought against Tenet Healthcare and Memorial Medical Center for deaths and personal injuries as a result of insufficiencies in Memorial’s electrical systems, preparedness, and evacuation plans were certified as a class action and reached jury selection in 2011. (LifeCare settled years earlier with families that sued.) Post-Katrina suits against hospitals, numbering about two hundred, had been allowed to proceed as general negligence actions, as opposed to medical malpractice actions that would have capped damages. The class action suit against Memorial and Tenet was settled before trial for $25 million with no admission of wrongdoing. The settlement was to be divided among patients, visitors, family members, and others at the hospital during and after Katrina who wished to take part, including LifeCare staff (Memorial employees were excluded according to provisions of Louisiana workers’ compensation law). It took until 2013 for the checks to be distributed—more than seven years after Katrina, in a case some referred to as a “full employment act” for disaster-struck New Orleans attorneys. Many families objected in court to what they considered meager compensation for the suffering they and their loved ones endured.