Five Days at Memorial: Life and Death in a Storm-Ravaged Hospital (67 page)

Pou wore a diaphanous gown with a deep V-neck that disappeared into a high empire waist, exposing a broad expanse of pink chest. The look, Southern Lady, Prêt-à-Party, was enhanced by a small gold cross dangling from a strand of pearls.

Even Rick Simmons let loose on the dance floor in a sweat-soaked dress shirt and tie; the heavyset lawyer had a dripping comb-over plastered to his scalp. One of Pou’s friends thought it improper for “Disco Dick” to be enjoying himself so visibly—after all, the purpose of the dinner was to raise money to pay him. “I’m telling her to get a new lawyer,” she said.

Pou let her girlish side take over, donning a fake grass skirt for “Margaritaville,” erupting in chirpy whoops, and pushing her hair back, Vogue style, with jerks of alternating arms.

Pou’s husband, Vince Panepinto, stood watching as his wife danced with her former colleagues and Simmons. “I wish I knew all the things he knows,” he mused. Pou and her lawyer were speaking every day as the case progressed, but Panepinto said that he didn’t ask her for details of their conversations. “Attorney-client privilege; they take it seriously.”

Panepinto had tried to walk back to Memorial after the city began flooding. But the sight of two menacing men on his way there had made him turn around. Without a gun, he felt vulnerable. While he had not been at the hospital to witness what happened there, he knew his wife would never kill anyone, and he was convinced Foti had arrested her and accused her of killing elderly patients to impress other seniors, a constituency Foti had long courted. Now Panepinto said he didn’t know what his and Pou’s future would be.

From the dance floor, Pou summoned her tall, handsome husband. He gestured no and stayed to the side, watching. She didn’t press him.

Attendees browsed auction tables laden with treats of a distinctly high-low flavor. A Chanel purse, a spa package, a hunting vacation … a hooked rug by a friend’s mother, an awkward metal wall hanging, an enormous wooden cross hewn by a sick little girl, according to its auction tag. Peggy Perino, one of Pou’s sisters, bid on and won a giant basket filled with supplies for making margaritas, then had trouble fitting it into the family’s car the next day. “Peggy did this to us,” Pou sighed.

THE EVENT RAISED close to $100,000 and Pou emerged from it enriched in more than one way. During the seminar on disaster preparedness, she jotted occasional notes on the record pages of her checkbook, having forgotten a notepad. A presenter read a quote from the
World Medical Association, an organization founded after World War II to set ethical guidelines for doctors. In a disaster, “patients whose condition exceeds the available therapeutic resources,” the organization said, “may
be classified as ‘beyond emergency care.’ ” Rather than maintaining their lives at all costs, “the physician must show such patients compassion and respect for their dignity, for example by separating them from others and administering appropriate pain relief and sedatives.”

Pou scrounged in her purse for more paper to record the quote. After the event, she went on the Internet to find the full WMA policy on disaster medical ethics and e-mailed it to Rick Simmons.

Simmons was thrilled. They had found a respected medical organization stating that a disaster doctor could ethically designate a class of patients as not savable and treat them only with painkillers and sedatives. It sounded exactly like the decision Anna Pou had made.

There were, in fact, crucial differences. The policy defined “beyond emergency care” as applying to patients who had “extremely severe injuries” such as radiation burns that were not survivable, or who would require a long operation that would oblige a surgeon to choose between them and other patients. It also said that if any patient was categorized in this way, the decision had to be “regularly reassessed” in case the resources available—such as the helicopters that began arriving in force at Memorial Medical Center on Thursday morning—or the patient’s condition changed.

Still, Simmons thought, this is something I can use. He met with WMA representatives in Chicago. A jury, he felt, could readily understand the concept of “beyond emergency care,” and from now on he and Pou would refer to this in all publicity materials and public statements.

If the case went to trial, he and Pou might also need to justify one of the more controversial choices made at Memorial, that the healthier patients should be helped before the sicker ones. He and Pou adopted the term “battlefield triage.” That would say it all to a layperson, portray the conditions as Pou had perceived them, regardless of the fact that this method of triage was not typical practice on the battlefield.

They also took to calling the concept “reverse triage,” as in the reverse of what a layperson would expect. The term was used, albeit rarely,
to refer to theoretical wartime situations where treating the most able-bodied first to get them back on the battlefield could help ensure the group’s survival.

Simmons was devoting nearly his entire practice to the goal of preventing the grand jury from indicting Pou, mounting what he called a “proactive defense.” He taught himself about triage and end-of-life issues, interviewed or obtained statements from more than one hundred potential witnesses, oversaw the preparation of exhibits on government abandonment, and filed motions to protect evidence and keep her conversations with Tenet officials confidential. He was still working by the hour, and although Pou’s university and her support fund were covering what had already amounted to several hundred thousand dollars in legal fees, he was prepared to sue the state to repay them if Pou, technically a state employee of the public university, was not indicted. He drew up a legal motion to wipe away all traces of her arrest—mug shots, fingerprint cards, rap sheets—from every agency’s records in the event that the charges were dropped or refused.

Simmons took pride in having written statements of support for Anna Pou adopted by and released in the name of several professional organizations. He also
collaborated with the attorney for the owners of St. Rita’s Nursing Home, James Cobb, in a public relations campaign to undermine the image of the man who’d had their clients arrested—an accusation AG Foti would lob, referring to their efforts as a
“nefarious conspiracy,” one to which Cobb would later happily admit. Cobb was impressed by the Pou team members’ “deep pockets” and took turns with them feeding the media negative stories about Foti. The nursing home’s owners were months away from standing trial for negligent homicide in the drowning deaths of their residents at the home, which had been named for Mabel Mangano’s grandmother Rita, who was named for St. Rita of Cascia, the patron saint of lost and impossible causes.

Cobb and his colleagues planned to call Gov. Kathleen Babineaux Blanco to the stand and lay the blame on the government for failed levees and failed evacuation plans for the most vulnerable residents. How could the state scapegoat his clients at the same time it was attempting
to
hold the Army Corps of Engineers and its deficient levees responsible for an estimated $200 billion in damages, using the same language of negligence—willful, wanton, and reckless—that Foti was using against the Manganos?

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.