Five Days at Memorial: Life and Death in a Storm-Ravaged Hospital (45 page)

ON OCTOBER 18, a few days after the CNN stories ran, LifeCare nursing director Gina Isbell met the attorney general’s representatives in a private room at LifeCare’s Kenner hospital, near the New Orleans airport. An attorney for LifeCare joined them on the phone.

Isbell described the events of the hurricane. She glossed over the details of what she had learned on the seventh floor when three medical professionals from Memorial arrived on Thursday morning and asked the LifeCare staff to leave. “I guess I thought they were just going to take care of our patients, but, you know, and round on our patients and take care of them, but I don’t know if it was something that somebody said, that made me believe that it was something different. I don’t know. I was just assuming, but I honestly don’t know.”

Isbell didn’t want to get anyone in trouble. She was angry about the criminal investigation and the accusatory news coverage. She viewed everyone at the hospital as heroes.

Schafer asked whether the LifeCare nurses kept up medical charts, recording what drugs they gave their patients during the disaster.

“Yes. I mean, we were giving medications up until Wednesday morning and [were] charting everything and we basically went into survival mode and were just trying to keep them alive with food and water. There was just no way we could do everything.”

“We’ve all been on that floor,” Schafer said, having searched it. “We know what it looked like. I can just imagine what you guys went through.”

How dare he say that? Isbell felt a flash of anger so strong she could imagine her head spinning like the child possessed by the devil in the horror film
The Exorcist
. “You
can’t
imagine,” she said, coughing. “It was unbelievable. We tried so hard to keep them alive, and I would like to know why it took so long for people to come in and help us to get those patients out. We wouldn’t have lost so many patients.” The government hadn’t been there to step in and help. That, to her, was the real crime. That was why most of the lives were lost. The investigators should be going after President Bush, not a doctor in the hospital. Leave the people who stayed and worked through the storm alone. Let the doctor who had tried to comfort people and take away their pain be a hero, not a villain, in a situation Isbell compared to being simultaneously on the
Titanic
and in war.

“LifeCare, our company, had resources to come in, get my patients out, my employees out.” She blamed government officials for dissuading LifeCare executives from sending in help. “It’s just not fair. I don’t know, it’s just not fair. It’s just not. I’m sorry.”

Schafer suggested they take a break, but Isbell composed herself and said she wanted to continue. She tried to recall a specific detail.

“Tomorrow at three it will come to me because I can only sleep till two or three in the morning and then I’m up,” she told them. Isbell was sleeping poorly, her hair was falling out, she was having nightmares in which she saw the faces of her patients. Her roommate was worried—Isbell always looked sad; a force had gone out of her. She had left Memorial in a small flat boat, with a weeping heat rash, mentally and physically drained, only to discover she had lost her home and her entire community in devastated St. Bernard Parish. She felt guilty about every staff member she had picked to work the hurricane with her. She felt terrible about the patients who had died.

“Take a pad with you to bed and as you think of things write them down,” Rider suggested.

“That’s when our questions will come to us,” Schafer joked. “So we’ll just give you a call at three tomorrow morning.”

“You have my cell phone number! Give me a call!”

They finished the interview and Schafer thanked Isbell. “I know it was painful to relive this, but I appreciate it.”

“I’ll tell you, every day is a challenge,” Isbell replied.

ISBELL’S GUARDED, angry reaction to the prosecutor and investigator was typical. The CNN stories and the Tenet lawyers’ letters marked a turning point. While the first few interviewees had seemed eager to speak with Rider and Schafer, now that the story and the investigation were public and Rider began conversations with a legal disclaimer, most potential witnesses were wary and uncooperative.

“I wanted to talk to you about what happened at Memorial hospital after the storm,” Rider said in a phone call to one Memorial pharmacist who might have had important information about how Anna Pou came into possession of controlled drugs. “Are you OK with talking with me?”

“Yes, OK,” the pharmacist said.

“Because you are still an employee of the hospital, I have to inform you that you have the right to have a hospital representative or an attorney present when I ask you any questions.”

The pharmacist reconsidered. “I guess I probably should call them, huh? I think that it might be better, I mean, obviously I would be willing to talk to you, but since you said something, I guess maybe I should talk to someone beforehand, just … I really don’t think I need an attorney. I think, just to make sure, I’ll call them.”

The pharmacist eventually called back, but suddenly the main people Rider and Schafer wanted to speak with were lawyered-up and unwilling
to talk. When employees did agree to interviews, Schafer, drawing on more than three decades of legal practice, sensed in their guarded responses that their attorneys had schooled them on what they could and could not say. There wasn’t a lot he and Rider could do when an interview subject answered, “I can’t recall,” even when the question concerned an event it would seem that no one could ever forget.

“Did you ever remember hearing any rumors about what happened to those patients on the seventh floor?” one of the Medicaid fraud prosecutors asked in a phone interview with a nurse who had worked at Memorial for ten years and was now working for another Tenet hospital.

“Um … I’m sorry, during, during the hospital I may have heard something.”

“What did you hear?”

“I really can’t recall everything that I heard.”

“The things that you can, let’s start there.”

“It’s just a rumor that I heard. I think there was like seven patients supposedly, I think, that were supposedly euthanized. That was the rumor.”

“Where did you hear that?” Virginia Rider picked up the questioning.

“In the hospital.”

“Where in the hospital?”

“I can’t recall what particular spot I was standing in at the time. I mean, just in the hospital in general.”

“What day?”

“Um … I can’t recall that.”

“Who told you?”

“Um … I can’t … I can’t recall.”

“Was it a nurse?”

“Um … possibly?”

“Was it a doctor?”

“No.”

“Had you heard why they were euthanized?” the prosecutor asked.

“Um … if I did hear anything, it probably was because they probably weren’t gonna make it.”

The employee later said he thought he had heard the rumor from several people at several different times. “Was it on the last day that you were there?” the prosecutor asked.

“I don’t believe.”

“Was it on the Wednesday before you left?”

“Could have been.”

Rider knew that the nurse had, shortly after the storm, openly told a journalism student that people at the hospital were “euthanizing” and “putting people to sleep.” The journalism student happened to work part-time for a district attorney’s office in another part of Louisiana and reported it to her boss.

Schafer was familiar with what attorneys did when they represented defense witnesses, and he had to admire the good lawyering of the competition. Their work energized him, made him play his “A” game, even as he saw that it only angered Rider, who seemed to see it as a form of withholding evidence.

Now that some allegations were out in the media, there was another concern. News reports could trigger memories. They could also, perhaps, manufacture them. Researchers had shown that recollections of alleged crimes, as of all events, were fallible, malleable, and subject to possible contamination by new information and discussions with other witnesses.
Nearly three out of four convictions later reversed based on DNA evidence with the help of the US nonprofit group the Innocence Project were based on faulty eyewitness identification. It was also potentially significant that several of the LifeCare witnesses had spoken after the evacuation and consulted on a written time line of their experiences.

To help mitigate the problems, Schafer, Rider, and their colleagues needed to interview more witnesses, taking care to avoid leading them or suggesting ideas, and to collect as much physical and written information as possible from the time of the events.

The investigation was stalling. The initial interviews had been unfocused. Rider and Schafer had been unsure of what information they needed.

LifeCare’s attorneys were prompt and helpful in answering requests for documents and details, but Tenet’s were taking a more defensive and protective tack. One of Rider’s earliest and most important requests had been for the medical records of the deceased patients. Weeks later, she still had only some of them. Rider had learned from Tenet’s chief of security that Tenet attorney Audrey Andrews had directed him to secure any medical records relating to deceased patients on September 14, which was the day after the attorney general’s investigation began. The records were brought to another Tenet hospital, but it had taken until October 7 before investigators were able to retrieve them, and
they were far from complete.

Rider and Schafer also lacked key facts. Who were the nurses who allegedly accompanied Pou to the seventh floor on Thursday morning? None of the witnesses had as yet been able to name them. During the search, investigators had found and seized papers listing everyone present at Memorial by department. They focused in on staff who might have had the most contact with Pou.

The last week of October, agents fanned out to serve subpoenas on seventy-three Memorial employees, compelling them to appear for interviews. Under the law, willfully disobeying could be punishable as contempt of court. The subpoenas could serve another purpose, flushing out people who invoked their Fifth Amendment right not to incriminate themselves—the people who might have something to hide.

CNN reported on the subpoenas and the attorney general’s frustration over Tenet’s letter and its “chilling effect” on the investigation. “We had no choice but to issue these subpoenas,” Foti said. Tenet attorney Harry Rosenberg sent a chastening letter to the Medicaid Fraud Control Unit’s longtime director: “We were disappointed that your office served subpoenas upon Memorial personnel—many of whom
are displaced from their homes and facing the hardships caused by Hurricane Katrina—particularly when I had indicated to you that Memorial will cooperate and has been cooperating with the attorney general’s office.”

Notwithstanding the displeasure they caused, the subpoenas quickly did their work. Interviews began in earnest. Eddie Castaing, a New Orleans attorney whose services were paid for by Tenet, was brought on to represent most of the Memorial employees and accompany them during their interviews. On November 1, he sat down with Rider, Schafer, and their supervisors for an important meeting. Rider summarized their discussion in a memo dated November 7, writing that Castaing was seeking immunity for two nurses, Lori Budo and Mary Jo D’Amico:

One of his clients was present on the seventh floor when injections were made for the purposes of mercy killing and participated with the doctor in administering morphine and versed. Two other nurses were also present, but CASTAING does not represent these nurses. CASTAING also advised that LIFECARE HOSPITALS personnel were present during or right after the event and were aware of what was happening. Later CASTAING’s client returned to the second floor and observed similar activities in the area where patients who had been triaged as threes (indicating that they were more critical). There was a male doctor present when this incident occurred on the second floor. CASTAING advised that he does not represent the other two nurses, but believes he could persuade them to come in if they were offered immunity. CASTAING also advised that he had spoken with one of the other two nurses and advised her to seek another attorney and that he had been unable to make contact with the other nurse.