by Sheri Fink
The juror was convinced—and, she believed, all of her fellow jurors were too—that a crime had occurred on that fifth day at Memorial.
EPILOGUE
HOURS BEFORE HURRICANE ISAAC’S expected arrival in New Orleans on August 29, 2012, I opened a wooden door inset with a stained-glass window and entered a small chapel. There, almost exactly seven years earlier, the bodies of men and women had been blessed after they died in the hot, darkened, powerless hospital surrounded by floodwaters.
Walking the quiet corridors of what was now known as Ochsner Baptist, I looked for someone to ask about preparations for the current storm. The sound of voices led me to a patient room. The door was open, the light was on, and balled-up sheets were strewn on the bed. A partially eaten meal tray sat on a rolling cart beside an IV pump on a tall metal pole, but the room was empty; the talk I’d heard droned only from the television.
Across the long-repaired walkway where nurse manager Karen Wynn had run in flip-flops to answer a Code Blue, and Dr. Anna Pou had girded herself with a call to her family before flying across its swaying, windowed expanse, was the surgery building, the site of the current ICU. Nurses Cheri Landry and Lori Budo again cared for patients here; their faces smiled from pictures on the bulletin board in the staff room.
The ICU was a hive of light and monitors, but it was filled with only ghosts. Every few seconds a dissonant croak issued from a disconnected machine. The building creaked in a gust of wind from a band of the approaching hurricane. The patient bays were vacant, the nurses gone, the hospital evacuated before the storm. Electrical transfer switches still sat in the basement, but one lesson from Katrina had been learned.
HAD IT ONLY been learned in New Orleans? Two months later, on the night of Monday, October 29, I watched a health executive burst into a meeting of doctors at the command center for Long Island’s North Shore-LIJ Health System. Ceiling tiles rattled in the wind and television screens showed images of Superstorm Sandy raging over New York City.
“NYU called,” the executive said. “They want to evacuate. I don’t know how to help them right now. They’re in a panic mode.” Officials at New York University’s Langone Medical Center were asking for ambulances in the midst of the storm to pick up four critically ill babies from the neonatal intensive care unit.
Like Mayor Ray Nagin in New Orleans before Katrina, New York City mayor Michael Bloomberg had exempted hospitals in low-lying “Zone A” areas of the city from his pre-storm evacuation order. He made this decision even though city and state health officials knew that many of them had backup generator systems that could fail if towering, wind-swept tides slammed into the coastline. After everything that should have been learned about those horrific days in New Orleans, another hospital in a major American city now found itself without power, its staff fighting to keep alive their most desperately sick patients.
The North Shore-LIJ executive had his own hospitals to worry about—sixteen of them spread across New York and Long Island. Minutes later, a member of his team delivered an alarming report about one of them, a community hospital in Bay Shore, New York.
“Water is still rising at Southside,” a corporate safety officer said. “We have a good hour before high tide.” Hours earlier, corporate leaders had called Southside and Staten Island University Hospitals to go over what they would do if backup systems failed and part or all of their facilities suddenly lost power.
Officials huddled around a speakerphone. “There’s a good possibility it will occur,” warned a Staten Island University Hospital official. Part of the power system, he said, was below ground. “It cannot be used if it floods.”
Doctors took to a whiteboard to sketch out priorities: “Establish clinical command structure”; “triage.”
As a reporter who had come to see how hurricane medical response had evolved since Katrina, I sat watching them, dismayed. This nonprofit parent company had a highly organized, local command center and was offering proactive and robust assistance not only to its own hospitals but also others in the region. This much was different from the support that Tenet and LifeCare headquarters provided to their hospitals at the time of Katrina.
Yet incredibly, just as in the lead-up to Katrina, some staff members said they had never pondered or planned for what they would do in case of a failure of the backup plan to the backup plan—a complete loss of power. This was true not just there, but also in many places where I have reported since Katrina. Emergencies are crucibles that contain and reveal the daily, slower-burning problems of medicine and beyond—our vulnerabilities; our trouble grappling with uncertainty, how we die, how we prioritize and divide what is most precious and vital and limited; even our biases and blindnesses.
Fortunately, as the clock ticked down to high tide and workers piled sandbags and operated pumps to protect the electric switch gear, the two coastal North Shore-LIJ hospitals narrowly avoided calamity. At the same moment, however, a dozen miles away in Manhattan at the nation’s oldest public hospital, a triage crisis potentially more acute than even Memorial’s was evolving. Dr. Laura Evans, medical director of critical care at Bellevue Hospital Center, was called to the hospital’s emergency command center. A storm surge, a giant wall of water forced up from the East River by Sandy, was predicted to crash into the land surrounding the hospital. Flooding could, hospital leaders told Evans, disable the pumps that delivered oxygen and vacuum suction to the hospital, as well as those that supplied the fuel from gigantic underground tanks to its backup generators. The loss of the fuel pumps would mean that backup power would last only as long as the small tank reserves attached to generators on the hospital’s thirteenth floor. If city power failed during the storm, the fuel would be exhausted within two hours.
Nearly all of the patients in Evans’s fifty-six-bed adult ICU relied on equipment that ran on electricity. Many were on life support or had drips of intravenous drugs that regulated their heartbeats and blood pressure. Some had intra-aortic balloon pumps that helped keep their blood flowing.
Evans was terrified, but the command team had limited good news. They believed the generator in the building next door, supplied by a separate, better protected fuel pump, would continue functioning. They could use it to power exactly six outlets in the ICU. Hospital leaders turned to Evans. Which of her very sick patients should be given access to one of the precious six power outlets?
“Laura,” one hospital official said, “we need a list.”
FIFTY-SIX PATIENTS, six outlets. How to decide? Evans had access to something the doctors at Memorial did not. In 2008, citing the arrests of the Memorial health professionals and fears that a severe influenza outbreak could emerge and force providers, again, into making life-and-death choices between patients, New York planners published a protocol for rationing ventilators. The guidelines, devised by experts in disaster medicine, bioethics, and public policy, were designed to go into effect if the United States was ever struck by a pandemic comparable to the 1918 Spanish flu outbreak, which sickened more than a quarter of the population, overwhelmed hospitals, and killed an estimated 50 million people worldwide—the most deadly disease event in recent history.
When state health department officials ran exercises based on scenarios involving H5N1 avian influenza—a strain of “bird flu” that had caused deadly outbreaks in humans around the world and that experts feared might mutate into a form that could spread easily between people—questions about how New York hospitals would handle massive demand for life support equipment arose.
“They kept running out of ventilators,” said Dr. Tia Powell, former executive director of the New York State Task Force on Life and the Law, which was asked to address the problem. “They immediately recognized this is the worst thing we’ve ever imagined. What on earth are we going to do?”
First the experts recommended ways that hospitals could stretch supply, for example by canceling all elective surgeries during a severe pandemic. New York also purchased and stockpiled additional ventila
tors—enough to deal with a moderate pandemic but orders of magnitude fewer than would be needed in a severe outbreak of 1918 scale.
Officials realized those two measures alone would not be nearly enough to meet demand in the most dire scenario. Ventilators were costly, required highly trained operators, and used oxygen, which could be limited in a disaster—so the group drew up the rationing plans. The goal, participants said, was to save as many lives as possible while adhering to an ethical framework. This represented a departure from the usual medical standard of care, which focuses on doing everything possible to save each individual life. Setting out guidelines in advance of a crisis was a way to avoid putting exhausted, stressed front-line health professionals in the position of having to come up with criteria for making tough decisions in the midst of a crisis, as the ragged staff at Memorial Medical Center had to do after Hurricane Katrina.
The New York group based its plan, in part, on a 2006 rationing proposal developed by health officials in Ontario, Canada, responding to the severe acute respiratory syndrome (SARS) pandemic. The Canadians took a tool that doctors use to track the progress of ICU patients, known as the Sequential Organ Failure Assessment (SOFA) score, and used it to help guide which patients would—and would not—be allotted ICU care in a severe emergency.
The SOFA score was not designed to predict survival and was not validated for assessing the health status of children, but the experts adopted it in the absence of an appropriate alternative.
The New York protocol calls for denying some of the sickest patients with the highest scores access to scarce ventilators. Hospitals are also to withhold ventilators from patients with serious chronic conditions, such as kidney failure, cancers that have spread and have a poor prognosis, or “severe, irreversible neurological” conditions that are likely to be deadly.
New York’s plan goes even further. It includes procedures under which patients who aren’t improving after a trial period are to be removed from ventilators with or without permission of their families. New York officials studied possible legal grounds under which the governor could suspend a state law that bars doctors from taking patients off life support without the express consent of patients or their authorized health agents.
“You can take something today that’s not necessarily active and overnight flip the switch and make it into something that has those teeth in it,” Dr. Powell said.
Powell is right in that drastic public health measures could be quickly snapped into place. Some states, including Colorado, have drawn up executive orders for the governor to sign in an emergency to allow hospitals to turn away patients, protect doctors faced with limiting care, and permit health officials to seize drugs and quarantine individuals. Other states, including Louisiana—thanks to the advocacy of Dr. Anna Pou—and Indiana, have addressed these issues with legislation.
After the grand jury refused to indict Pou, she made good on her promise to fight to protect medical workers who serve in disasters, capitalizing on the statewide support she enjoyed. In 2008, I watched her as we both sat in a gallery at the Baton Rouge Capitol at a hearing. Ever the committed doctor, she worked on patient charts balanced on her knees as she awaited a chance to rise in support of one of three disaster immunity bills she helped write. “Unless you were there it would be difficult for you to forge a bill,” she said after the hearing. “The fact I experienced it first-hand puts me in a good position,” she added. “These are horrific, extraordinary circumstances.” Pou said that providers who use “alternate standards of care [need] a comfort level that we are not going to be second guessed and prosecuted for decisions we make during times of crisis.” The legislators did not ask Pou whether the decisions she was referring to should extend beyond triage to include intentionally hastening patient deaths.
The answer to that question is no, according to reports released by the Institute of Medicine, a highly regarded, independent advisory organization that is part of the National Academy of Sciences. A year after Pou’s campaign, and again three years later after consulting with emergency responders across the country, a group of disaster experts convened by the Institute came down unequivocally on the question of euthanasia in guidance to policymakers and the public on medical care during disasters: “Neither the law nor ethics,” they wrote, “support the intentional hastening of death, even in a crisis.”
A bioethicist uninvolved with the group shared a similar view. “Rather than thinking about exceptional moral rules for exceptional moral situations,” Harvard’s Dr. Lachlan Forrow, who is also a palliative care specialist, wrote, “we should almost always see exceptional moral situations as opportunities for us to show exceptionally deep commitment to our deepest moral values.”
As the Louisiana legislators considered changing state law based on Pou’s experience, none of them inquired as to what had actually happened on September 1, 2005. She has never publicly discussed it, even later, after settling three suits brought by families, including the Everetts, who had to agree to keep silent about the terms. Legislators took turns thanking Pou on the record for her Katrina service; one called the former attorney general’s treatment of her “inexcusable.”
The bills Pou and her attorney Rick Simmons helped write passed unanimously. They immunize Louisiana health-care professionals from most civil lawsuits (though not in cases of willful misconduct) for their work “in accordance with disaster medicine protocol.” Prosecutors are also urged to await the findings of a medical panel before deciding whether to pursue criminal charges. Pou has helped advocates pass similar legislation in other states.
What is the “disaster medicine protocol” that health workers can now legally implement? Does it have a better chance of helping patients than the usual standard of first-come-first-served according to medical need? Pou and Simmons said they included this language before a protocol existed, hoping one would be created.
Several years after Katrina, federal agencies began requiring state and local health departments in the United States to develop guidelines for how to prioritize patients in disasters, in order to qualify for certain preparedness grants. In some states, patients with Do Not Resuscitate orders, the elderly, those requiring dialysis, or those with severe neurological impairment would be refused ventilators or admission to hospitals in a disaster like a severe pandemic. Utah’s original plan divided epidemics into phases. Initially, hospitals would apply triage rules only to residents of mental institutions, nursing homes, prisons, and facilities for the “handicapped.” If an epidemic worsened, the rules would apply to the general population (Utah later removed the differentiation after it was mentioned in the media).
Many of the plans are based on the Ontario and New York ventilator guidelines. The US Veterans Health Administration—which has 144 medical centers across the country—also drafted similar protocols.
However, mounting evidence suggests that the plans would not accurately direct care to patients who are most likely to survive with treatment, as is often presumed. Several researchers have studied how groups of ICU patients might fare under these emergency protocols. They asked doctors to categorize the patients in their ICUs during the relatively mild H1N1 “swine flu” pandemic as if it were an emergency and they needed to ration. The results were disturbing. The majority of patients who would have been tagged as “expectant” (i.e., likely to die or unable to be saved with the resources available; analogous to Memorial’s “category 3”) and been designated for withdrawal of ICU care and ventilator support in fact actually survived with continued treatment and were discharged from the hospital. In some cases, their ventilators would likely have been reassigned to a group of patients whose survival rate turned out to be lower. Even with clear guidelines to follow, triage officers often disagreed and lacked confidence in their categorization decisions.
In other words, there was slim if any evidence that taking away ventilators or other resources from patients with a lower triage priority actually would have saved more lives. More
over, in some instances just the opposite appeared to have been the case. “A new model of triage needs to be developed,” British researchers who tested a version of the protocols wrote in a medical journal article in 2009.
New models have been proposed, including prioritizing patients along a scale with a sliding cutoff point rather than categorically excluding members of certain groups; patients assigned a low priority would then be provided treatment if it became available. But four years later, in 2013, the disaster plans on the books across the country had not been modified.
In one small but particularly troubling study of a similar triage protocol in Britain, none of the patients who needed mechanical ventilation would have received it long enough to survive had the plan been used. Wave after wave of sick patients could have been put on and taken off the ventilators to no end. They would not have been given enough time to get better.
Withdrawing care from those who have not given their consent is troubling enough. Doing so by following a protocol that is unlikely even to save more lives would be indefensible. To the extent that bad protocols cover up deficits of evidence and accord, and entrench harmful practices, perhaps no protocol would be better after all.
EXPERTS WHO DEVISE guidelines that involve withdrawing life-saving care in emergencies may have never experienced how difficult it would be to implement them. In January 2010, I traveled to Haiti after the devastating earthquake and “embedded” with US federal disaster medical teams, some of whose members had worked in the nightmarish New Orleans airport after Katrina. I planned to report on what the teams had learned and how prepared they might be to assist in another American disaster, and to study the way professionals handled triage in a setting where the number of critically injured patients far exceeded the initial capacity of the medical system. While the circumstances in a developing country would pose unique challenges, the actual treatment of patients should be similar at home and abroad.