Killer Nurse (19 page)

In regard to why he didn't initially tell the two patients that they might have been injected by bleach, he said that he had urged them both to go to the emergency room, but at the time, he didn't think he had enough facts. All he had was an allegation against an employee.

Dr. Germain had another take on this controversy. Unequivocally, he stated that he didn't agree with the way the facility handled the situation. When asked about Dr. Nazeer's decision not to tell the patients on the morning of the twenty-eighth that they might have been injected with bleach, he said, “I never believe in keeping anything from patients. I always tell them what I know. The truth is the best policy.”

Like the Texas Department of Health and Human Services, who investigated DaVita and issued a scathing report on them in May 2008, after DaVita had shut down, Dr. Germain had a lot of uncomplimentary things to say about how the DaVita Lufkin clinic operated. Like the Texas DHHS, he also faulted DaVita for patient care, and said that this could have ultimately caused the five deaths. He said he wasn't surprised that six of the patients went into cardiac arrest when their blood was returned to them. He attributed this to DaVita's poor supervision and the alleged victims' frail health.

He told the jury that dialysis patients were the most vulnerable at the end of the dialysis process because of excess fluids being pulled from their bodies causing a drop in blood pressure—sometimes too much of a drop. This normally isn't a problem unless they aren't monitored properly, which he didn't believe the DaVita patients were.

He went on to tell the jury that the hardest thing he could ever do was decide how a patient had died—especially considering that he'd never seen the patient in person and all he had to go on was their patient charts. However, after he reviewed the records here, he said that the patients were frail and near death. Among the patients that he highlighted was Ms. Metcalf, one of two patients who died on April 1, 2008, leading to the mass investigation by DaVita. “This was not an atypical death. It's what you see in a sick elderly dialysis patient,” he said of Ms. Metcalf. “Her blood pressure was stable until the end of her treatment, then she became unresponsive. I would have to say it was the dialysis treatment that led to her cardiac arrest. It was just too much for her body to handle.”

In addition to Ms. Metcalf, Dr. Germain weighed in on the death of Mr. Kelley, saying he also believed the dialysis process had been too much for Kelley's body to handle.

As the doctor went through each of the victims' charts, he indicated that the patients were frail and close to death, and that it was the dialysis process, as well as the poorly supervised treatments they received, that had caused their deaths.

If Dr. Germain knew about, saw, or even heard the rumblings, mumblings, and shaking of heads, or the outright glares from the side of the courtroom behind the prosecution table, he didn't let on. For the most part, the loved ones of the victims had sat and listened to testimony stoically, but Dr. Germain testimony was one of the few times that rattled them.

Among the spectators behind the prosecutor's table was Wanda Hollingsworth, the daughter of Ms. Metcalf, along with her brother and sister-in-law. Dr. Germain didn't know that Ms. Hollingsworth had testified earlier to how spunky and energetic—not frail—her mother had been.

Also listening were friends and family members of Mr. Kelley, whom no one had ever described as frail, sick, or near death. Nor did Dr. Germain know about all the past and present DaVita employees who had testified about the favorable condition Mr. Kelley was in at the time he coded at DaVita.

In truth, Dr. Germain had never seen or treated any of the patients, and all he had to go on was records he was given to view by the defense.

He was definitely a witness the jury would remember—mainly because of his professionalism, but also because they felt he was honest—especially when Herrington cross-examined him. Herrington's last question to him would stick in the jury's mind.

Dr. Germain had been critical of DaVita and Dr. Nazeer, but also attributed the patients' deaths to natural causes. But when the defense passed the witness, Herrington asked him, “Can you say that all these things could not have been caused by the bleach injections?”

Dr. Germain may have been an ideal witness for the defense, but even so, he still had to answer “no” to Herrington's question.

The jury would eventually get to hear another witness after she was
voir dired
out of their presence. Connie Baker, the witness, seemed to pop out of nowhere. She'd very recently contacted Deaton and told him her story. After hearing it, Deaton was all too glad to let her testify. She was an ex-DaVita employee who had worked in Lufkin in April 2008, but had resigned.

Deaton led her through her testimony, and Baker backed up Kimberly Saenz's version of events, agreeing that she and other employees had all used syringes to measure bleach, and so forth. In fact, Baker testified to every single thing Deaton needed her to. She even recalled a meeting in early April in which Amy Clinton had told all the employees that she knew there was something going on. Baker claimed that Clinton had pointed her finger at them, saying, “I will not go down for this. I will take someone with me.”

Baker told the jury that she'd felt threatened by Clinton and so scared that she decided at that moment to quit. She handed in her two-week notice the next day, and stated that she left DaVita because she believed someone was going to be blamed for the problems that happened in April 2008.

The
Lufkin News
led off with the headlines in bold black print,
WITNESS SAYS CLINIC SEEKING SCAPEGOAT
. Along with that headline, they had a picture of Saenz with a smug smile on her face—one that she had displayed throughout the trial. The article described Baker's testimony, what Baker claimed Clinton had said and how she'd felt threatened. However, despite the headline, Baker never used the term “scapegoat.”

Then it was Herrington's turn to ask questions. He began by asking Baker who else at DaVita besides Saenz and herself had used a syringe to measure bleach, but Baker couldn't recall any names. He also asked her who else besides Saenz and herself had heard Amy Clinton make that statement. Baker couldn't name any individuals.

Finally, Herrington produced a piece of paper and, before asking to have it admitted to the record, showed it to Baker, who testified that it was her letter of resignation, and then handed it to Deaton. Deaton read it and in a small voice said he had no objection to having it admitted into evidence.

Herrington never told the courtroom what was in the letter, but he posted it to the jury so they could read it. Everyone in the courtroom knew that letter had to be important and was curious to know what was in it. According to jurors who spoke after the trial, the letter of resignation did not back up Baker's story of a scared employee just wanting to get out so she wouldn't be blamed for anything. In fact, in the letter she asked DaVita if she could be eligible for “PRN” duty, which means as needed. In other words, she wanted to work when they needed her to fill in for someone and not on a schedule. For one thing, PRN employees usually make more. Also, former coworkers said Connie Baker told them she was quitting because the amount she was paying for gas was eating her paychecks up—not to mention the hours. She was working ten-hour shifts on top of a two-hour commute each way to get to and from work.

After the defense rested, Herrington called several rebuttal witnesses—either DaVita employees or past employees. Some of the ones he called were defense witnesses, and all of them had been present at that meeting in which Clinton had supposedly threatened the staff. However, not a single one of them heard Clinton say anything remotely close to what Baker had reported. None of them even remembered Amy Clinton speaking at all during that meeting, which was supported by documentation. DaVita meetings had sign-in sheets and agendas of who spoke and on what topic. At that particular meeting, Clinton wasn't scheduled to speak.

Most said that they would have remembered something that sounded so threatening.

Only one employee said she wouldn't have considered them threatening. When asked why, she said, “I was doing my job correctly. Why would I feel threatened?”

* * *

Peter Cartwright was president at Cartwright Consulting Co. He possessed a bachelor's degree in chemical engineering from the University of Minnesota and was a registered engineer in several states. He also specialized in marketing and technical consulting for water purification—especially in dialysis clinics.

Cartwright was in Lufkin as one of Deaton's expert witnesses because when Deaton wasn't blaming DaVita for the cause of the injuries and deaths, he was blaming the water.

As Deaton questioned Cartwright, the expert told the jury that Lufkin DaVita was the most poorly run and operated system in hemodialysis he'd ever seen. The truth was, DaVita had some problems in the way it was run. There was no doubt about that.

At the heart of the water argument was how the water was treated. Municipal water plants in the United States use either chlorine or chloramine (a combination of ammonia and chlorine) to treat water before it is sent to people to drink. However, the water used in dialysis centers has to be pure, free of everything, including either chlorine or chloramine, and chlorine is easier to remove than chloramine, and fortunately for DaVita Lufkin, they had to deal with chlorine.

In Cartwright's testimony, he said that he didn't believe that DaVita's carbon tanks had been filtering the chlorine properly in April 2008. He criticized DaVita for not dating water logs, and several other things.

There was no question that DaVita had not handled this process well. The damage done by Cartwright fell to prosecutor Layne Thompson to clean up. During Deaton's direct examination of Cartwright, Thompson had spent a good deal of the time objecting to Deaton's questions—either on the basis that they were leading, or that Deaton was misrepresenting facts—most of which were sustained by Judge Bryan.

From Cartwright's apprehensive expression, he expected Thompson to come out on the attack. Instead, Thompson surprised everyone. He asked Cartwright how much he was being paid. Some eyebrows rose when the expert said $300 an hour, and that included the time to testify. This was the first time in the trial the question had come up. All the other experts for the state were government employees, and not paid by the county.

The key to Thompson's questions wasn't just what he asked, but how he asked it. His words and sentences were clipped and delivered with a snap. He took Cartwright through the process by which carbon tanks were used to take the chlorine and chloramine out of the water.

Then he got to the meat of his cross-examination:

In that snappish manner, Thompson asked, “You understand that Lufkin uses free chlorine to disinfect their water, correct?”

Cartwright answered, “That's my understanding.”

However, the expert witness's attitude, maybe because of the way Thompson popped the questions at him, or the fact that Thompson had spent so much time objecting during Deaton's examination, was less than stellar. Compared to the performance of the witnesses put on by the state, he was lacking. As one juror said later, everything seemed beneath him.

Thompson, the prosecutor with all that medical and scientific experience, the one who had spent years defending medical malpractice, knew exactly what he was doing and where he was going. In fact, he didn't believe that the defense had made everything available to the expert and he was on the stand blind in certain regards.

Thompson led the expert through a series of questions. At one point Thompson objected because the witness was nonresponsive—meaning he wasn't answering the question. Judge Bryan sustaining the objection and ordering Cartwright to answer the question didn't do much for the expert's attitude.

In that biting tone, Thompson asked, “The question,
sir
, is, isn't it true that chloramine takes longer to be taken out of the water by granulated activated charcoal?”

Cartwright replied, “NO!”

If the Saenz trial had a dumb jury, this would have flown right past them, but since they didn't, it didn't. Was this a mistake on the expert's part? Everyone who followed the trial knew the answer was yes.

Thompson:
Chloramine isn't instantly taken out of water by charcoal, true? Or even very quickly?

Cartwright:
You're asking for a conclusion that is difficult to give a yes or no answer to.

Most people in the courtroom believed that Thompson was asking for a conclusion that Cartwright just didn't want to answer. This doesn't help the credibility of an expert witness.

Thompson:
Were you aware that just a week before the first two patients had cardiac arrests on April 1 that DaVita put four brand new 3.6 square foot granulated activated carbons tanks in place of four tanks that had been there previously?

Cartwright:
I didn't relate it to the deaths but I do recall a document saying they were installed on March 25th.

Thompson:
Let's do the math, Doctor, or Mr. Cartwright, four 3.6 cubic feet of carbon tanks, how many cubic feet does that constitute?

(This was not a slip of the tongue on Thompson's part. He was simply reminding the jury that Cartwright didn't hold a doctoral degree in the subject he was speaking on.)

Cartwright:
If my math is correct, that's 14.4 cubic feet.

Thompson:
March 25th 2008, less than a week before two patients arresting at DaVita, 14.2 cubic feet of new granulated activated carbon was put into the water system at DaVita, correct?

Cartwright:
Apparently, yes.

Thompson:
It would be fair to say that it would be really unusual for 14 cubic feet of new activated granulated carbon put in place on March 25th 2008 would no longer be effective of filtering tap water five weeks later on May 3rd when the CDC took the water samples from the treatment center, true? That would be odd that they weren't still working, true?