APPLE TV MINI-SERIES
(FACT FROM FICTION)
Commentary by Richard T. Simmons, Jr., Attorney for Dr. Anna Pou
Having watched the eight episodes of Five Days at Memorial and reviewed the transcripts of the mini-series, along with the below Apple TV Trailer.
Five Days at Memorial – Apple TV Trailer
“They found 45 dead bodies at Memorial Medical Center More than anywhere else 45 dead patients. Now does that make sense to you?” Former Louisiana Attorney General Charles Foti to Assistant Attorney General Butch Schaefer
I provide the following response:
I. THE 45 BODIES RECOVERED AT THE HOSPITAL SITE WERE THE RESULT OF THE FATAL DECISION BY LIFECARE TO CONGREGATE 53 ELDERLY ACUTE CARE PATIENTS ON THE LIFECARE 7TH FLOOR WITH NO MEDICAL DIRECTOR OR DOCTORS.
(In any event, notably, there were nearly a dozen patients in the morgue by the time the storm passed.)
The mini-series repeats on numerous occasions, the above contention by Attorney General Foti that because of the large number of deaths somehow the patients were murdered, when, in truth and fact, there is a logical explanation. The real causes were : (1) the deteriorating conditions at the hospital with no power and surrounded by 10 feet of water; (2) LifeCare’s fatal decision to amass 53 elderly acute care patients in the LifeCare 7th floor with no doctors or medical director, thereby sustaining the largest percentage of casualties; (3) Tenet/Memorial “shelter in place” policy for family members which lead to an influx into the hospital of up to 2000 people with approximately 200 patients and over 100 pets; This policy made no sense from the standpoint of patient care and was a contributing factor to the overall plight of the doctors and nurses who stayed to the end treating the remaining patients at Memorial Hospital.
Dr. Pou had practiced medicine on the South Texas Gulf Coast, an area prone to hurricane conditions. When storms approached those Texas hospitals, Dr. Pou was familiar with the policy of rounding the patients, discharging as many as possible to reduce the patient population, maintaining a staff of critical personnel for the remaining patients, and reducing the overall population of the hospital by discharging all nonessential personnel.
Dr. Pou was shocked by the overcrowded hospital condition at Memorial and the total lack of preparation for a storm of this magnitude, especially given the fact that New Orleans was (and is) just as prone or more to devastating hurricanes as coastal Texas. In fact, when Dr. Pou volunteered to stay for the hurricane at Memorial Hospital, she could not even get a room assignment and ended up sleeping in the nurse’s quarters on the 5th floor.
2. LIFECARE CORPORATION: (1) IN THE WAKE OF THE ATTORNEY GENERAL’S ARREST OF TWO NURSING HOME OWNERS FOR FAILURE TO EVACUATE 35 RESIDENTS WHO DIED AND (2) FACING A MASSIVE CLASS ACTION FOR THE LOSS OF 30 OF 53 PATIENTS, STARTED POINTING FINGERS AT TENET AND DR. POU.
Storm surge from Hurricane Katrina destroys St. Rita’s Nursing Home killing 35 patients.
45 patient bodies are removed from Memorial Hospital
St. Rita’s Nursing Home’s two owners are arrested by Attorney General Foti on charges of negligent homicide in failure to evacuate the patients.
LifeCare Corporate counsel “self reports” to Attorney General Foti that Tenet and Dr. Pou gave “lethal doses” to LifeCare acute care patients at Memorial.
Fearful of similar arrests of LifeCare officials (LifeCare Medical Director evacuated). LifeCare began finger pointing.
After Katrina struck, the bodies of 35 St. Rita Nursing Home residents were recovered from low lying coastal areas of St. Bernard Parish and Attorney General Foti arrested two owners (the Manginos) of St. Rita’s on charges of negligent homicide for failure to evacuate the patients. While the owners were exonerated two years later, the arrest sent shock waves through corporations with possible exposure of patient deaths.
Additionally, LifeCare faced a potential massive class action lawsuit by the family members of 30 patients, 24 of whom died at Memorial and six more at other facilities to which they had been evacuated. The corporation was in an indefensible position because (1) none of the LifeCare doctors were on site to treat the 53 patients during the critical stages when the storm was passing ; (2) the Medical Director for LifeCare had evacuated, leaving in charge of the 53 patients, an administrative staff member who was pregnant at the time; and (3) most importantly, LifeCare's fatal decision in evacuating 19 of their patients (13 of whom died) from the low lying Chalmette facility to the 7th floor of Memorial Hospital in the middle of New Orleans where, at a minimum, power failures and flooding are normal weather occurrences during Hurricanes. If a storm of the proportions envisioned by Hurricane Katrina was approaching, why would LifeCare send an ambulance to pick up a 380 pound paraplegic, along with 18 other elderly acute care patients and merely move them only 13 miles to the 7th floor of a hospital to the middle of New Orleans, instead of bearing the costs of transporting these patients “out of harm’s way” to a facility north of the low lying areas in Louisiana?
In the quoted words of the former Attorney General: “Now does that make any sense to you”?
Facing potential criminal action and civil lawsuits, LifeCare corporate counsel, within two weeks of the storm, two days after the patient bodies were recovered from Memorial and one day after the St. Rita owners were arrested, called the Attorney General’s Office to “self report”. But it was, in effect, the first volley of a corporate finger pointing scenario where LifeCare began to blame “Tenet and the Memorial doctors” for the large death count of LifeCare patients. The LifeCare employees who are the focus of the mini-series, are brought to the Attorney General’s Office in “lockstep” by LifeCare corporate counsel, suggesting that Tenet and Dr. Pou euthanized some patients.
But these “lockstep” statements by the LifeCare personnel omitted a critical fact. The “LifeCare Lie” was that Dr. Pou brought with her morphine and versed and took over the LifeCare Unit, when in truth in fact, LifeCare personnel supplied the drugs from its own pharmacy, as had been done the day before the evacuation.
In the initial interviews in the Attorney General’s Office, all the LifeCare personnel said that they only provided “supplies” such as the needles and paraphernalia, omitting the critical facts that the LifeCare pharmacist (SH), recognizing the dire situation, walked down the long corridor from the charting room to his 7th floor pharmacy office and obtained the drugs at issue.
These LifeCare statements were the basis for the arrest warrant which alleges that Dr. Pou commandeered the LifeCare unit on the 7th floor and brought the two drugs (morphine and versed) with her to administer to those patients. In truth and fact, the drugs were actually supplied by the LifeCare pharmacist from the 7th floor pharmacy.
III. THE DETERIORATING CONDITION OF THE LIFECARE PATIENTS WAS REFLECTED BY A “STANDING ORDER” FOR MORPHINE BY ANOTHER DOCTOR WHO VISITED THE LIFECARE PATIENTS THE PRIOR DAY. THE ACTUAL LIFECARE PHARMACIST PLACED MORPHINE AT VARIOUS NURSE’S STATIONS ON THAT DAY
Missing from the LifeCare narrative is a fact that another doctor visited the 7th floor facility the day before and, given the deteriorating conditions of the hospital and the LifeCare patients themselves, placed in the medical records a “standing order” prescription for morphine to be filled by the LifeCare pharmacist. The LifeCare pharmacist then placed morphine at various nurse's stations “on the honor system”. Dr. Pou was not involved in treatment or these patients on that day.
Also missing from the narrative provided by LifeCare are the events of the prior day (Day 4 at Memorial). At that point Dr. Bryant King, in the absence of a LifeCare Medical Director and any LifeCare doctors, went to the 7th floor and visited the nine LifeCare patients who remained on the floor. Upon his return to the 2nd floor, to relieve Dr. Pou, he announced to her that the remaining LifeCare patients were in “bad shape” and were all DNRs (Do Not Resuscitate). On the hospital’s evacuation scale of 1 to 3, they were at the lowest priority level for evacuations.
Also on that same day, a futile effort to evacuate four LifeCare patients on ventilators led to their deaths in the stairwells between the 7th floor and the ground level.
IV. MS. FINK CREATED A FICTITIOUS LIFECARE PHARMACIST – MR. NAKAMANU - WHO CONCLUDED THAT DR. POU MURDERED THE PATIENTS.
THERE IS NO “MR. NAKAMANU”.
After using dozens and dozens of actual names of persons involved in the Apple TV mini-series (including mine), Ms. Fink created a fictitious LifeCare Pharmacist – Mr. Nakamanu - who quotes Dr. Pou as saying “lethal doses” would be given to patients as he concluded Episode 6 by saying “In my opinion, there is no other conclusion you could draw. Those patients were murdered”.
There was no “Mr. Nakamanu”. Since Tenet and LifeCare were separate hospitals there were two pharmacists: (1) The Tenet pharmacist (P.D.) on the 2nd floor; and (2) The LifeCare Hospital pharmacist (S.H.) on the 7th floor. While Dr. Pou did sign a prescription for morphine from the Tenet pharmacy for a dying patient on the 2nd floor earlier in the week, there was no such documentation in the 7th floor pharmacy, which was totally controlled by the LifeCare pharmacist. This scene from the mini-series is a total fiction, as is a “Mr. Nakamanu”, but it allows Fink to foster her story line in a way most likely to appeal to viewers.
The question must be asked and answered: “If the LifeCare pharmacist was aware that “murder” was about to be contemplated on the 7th floor, why would he release from his pharmacy the drugs to be utilized?”
In the quoted words of the former Attorney General: “Does that make sense to you?”
V. THE LIFECARE “FINGER POINTING” NARRATIVE UNRAVELED IN DECEMBER 2005 WHEN THE INVENTORY OF THE LIFECARE PHARMACY REVEALED THAT ITS PHARMACIST HAD SUPPLIED THE MORPHINE AND VERSED IN QUESTION
On December 7, 2005, this “LifeCare Lie” unraveled as the actual LifeCare pharmacist, who had by then sought private legal counsel, re-entered Memorial Hospital with Attorney General representatives to do an inventory count of the LifeCare 7th floor pharmacy. That inventory reflected that the only drugs that were missing from the LifeCare pharmacy were the morphine and versed. Obviously, this pharmacist had supplied the drugs and at this point, the “LifeCare lie” unraveled, but the finger pointing exercise continued between LifeCare and Tenet as to who is responsible for the death of these large number of LifeCare patients.
VI. A HOMICIDE DETERMINATION COULD NOT BE REACHED BASED TOXICOLOGY AND PATHOLOGY RESULTS FROM DECOMPOSED BODIES IN THAT THE AMOUNT OF MORPHINE COULD NOT BE DETERMINED OTHER THAN THE PRESENCE OR ABSENCE OF SUCH SUBSTANCE
The mini-series suggested that there was a forensic basis for concluding homicide based on the laboratory results, when in truth and fact, the leading drug pathologist, Dr. Steven Karch, retained by the Coroner Frank Minyard and the State of Louisiana, concluded that, based on the decomposing bodies after 12 days, the amounts of morphine involved could not be ascertained, other than to determine the presence or absence of such drugs. Read – Dr. Karch’s qualifications
The mini-series depicts a meeting among experts retained by the Attorney General's office, the Coroner Frank Minyard and Assistant D.A. Michael Morales where the experts made a classification of “homicide” as to the number the patients based upon the alleged drug results of excessive amounts of morphine and the lack of medical records ordering morphine for the patients. Missing from this depicted meeting is the experienced opinion of Dr. Steven Karch who took exception to these conclusions by other experts that the drug test results could be probative of excess use of morphine. At a previous meeting, the Coroner and Dr. Steven Karch explained to Morales, Ryder and Schaffer, the unreliability of using drug toxicology results from seriously decomposed bodies that were retrieved from the hospital 12 days later. At the conclusion of that meeting, Dr. Karch was told by Virginia Ryder and Butch Schaeffer to “not write a report” and that he could send his bill to the State of Louisiana for payment. Dr. Karch’s opinion did not fit with the AG’s theory of the case and was suppressed.
While the miniseries portrays Dr. Minyard as inexperienced, he had served as the Coroner of Orleans Parish for over 30 years and valued Dr. Karch’s opinion.
Coroner Minyard and Assistant District Attorney Morales who were present at the various meeting with experts, were very much aware that, given Dr. Karch’s status as one of the world's leading experts in the area, that this issue would be hotly contested at any later trial proceedings. The U.S. Supreme Court in Brady v. Maryland places an obligation upon prosecutors to preserve evidence “favorable” to a potential defendant (such as Dr. Karch’s favorable opinion). Ryder and Schaffer sought to suppress Dr. Karch’s experienced opinion, as did Ms. Fink. But the Coroner and Assistant District Attorney were aware that such evidence had to be disclosed to any potential defendant.
Also depicted in this scene were experts’ comments relative to the fact that the medical records of the patients did not reflect orders for morphine. As the conditions deteriorated, medical record keeping became intermittent and when the power went out in the hospital, the record keeping was nearly non-existent. Many of the medical records of the patients have two words: “emergency discharge”. The fact that medical records of the patients do not reflect morphine during the last two days of patients present at Memorial is not reflective of any improper actions, given the circumstances.
In fact, the toxicology and pathology results did not support a homicide determination. [Also see testimony of Dr Karch before the Louisiana State Legislation]. Link
VII. THE FORMER LOUISIANA ATTORNEY GENERAL CHARLES FOTI, HIJACKED THE NORMAL INVESTIGATIVE AND PROSECUTORIAL PROCESS FOR HIS OWN POLITICAL PURPOSES
The mini-series falsely presents the scenario in which the Orleans Parish Coroner, the Orleans Parish D.A.’s Office and Orleans Parish Grand Jury were totally circumvented during the investigative process, when in truth in fact, it was the former Attorney General Charles Foti who hijacked the normal investigative and prosecutorial process for his own political purposes through a staged “media arrest” of Dr. Pou and two nurses. Adding credibility to this comment is the fact that Foti was already gearing up as a candidate for election in the fall of 2007; clearly, Foti’s intent was to raise his statewide profile and use his newly won fame as a jump start to his candidacy.
The Friday before her arrest (Monday, July 17, 2006), I received notice of inquiries as to Dr. Pou’s surgeries scheduled the following Monday and was also advised by the media of an Attorney General’s press conference scheduled for Tuesday the 18th. Fearful of an imminent arrest, I placed a call to Butch Schaefer and Virginia Ryder both of whom deliberately and without hesitation lied and confirmed that our agreed upon “self-surrender agreement” remained in effect and that the planned press conference by the Attorney General had nothing to do with Dr. Pou.
Based on these false assurances, I advised Dr. Pou to proceed with her scheduled surgery on Monday. At 6:00 o'clock that night, a task force headed by Schaeffer and Ryder, obtained a arrest warrant and brought Dr. Pou from Baton Rouge to a New Orleans lock-up where she was released. “Mugshots” were taken of Dr. Pou and the two Memorial nurses and released to the press. Dr. Pou used Ryder’s phone for one call – NOT TO HER LAWYER BUT TO HER MEDICAL COLLEAGUES to provide aftercare instructions for the patient upon whom she had just performed surgery that afternoon. This fact speaks volumes about Dr. Pou and the incredible selflessness she has exhibited throughout her medical career.
The very next day, Foti and his staff, including Schaefer and Ryder, held a CNN “International” press conference, announcing the arrest of Dr. Pou and her two nursing colleagues for euthanizing the patients which he called homicide, utilizing a so-called “lethal cocktail” of morphine and versed on 4 patients. Link (AG News Conference) Then, in a further testament to Foti’s political motivations, two days later Foti held a $500.00 a plate fundraiser at the luxurious Windsor Court Hotel as he was announcing his intentions to run for re-election or, perhaps, Governor of Louisiana. Link (Foti Invite)
While the Apple TV story is told through the eyes of an Assistant Attorney General and an Attorney General Investigator, the controlling person for the investigation was clearly candidate and Attorney General Charles Foti who attempted to circumvent the normal process of New Orleans homicide investigators, the Coroner’s determination as to homicide, the D.A.’s decision whether to present to the Grand Jury and the Grand Jury decision to return a True Bill or No True Bill on the charge.
Normally in the City of New Orleans, homicide investigations are assigned to the New Orleans Police Department homicide section who reports to the Orleans Parish Corner for determination of homicides committed. Thereafter, matters are submitted to the Orleans Parish District Attorney's office who presents the matter to a Grand Jury. In this case, the Attorney General, who does not have jurisdiction in the matter, hijacked the entire process for his own political and media purposes.
VIII. IN THE FALL OF 2007 SCHAEFER AND RYDER, WHO WERE THEN IN OPPOSITION TO FOTI’S RE-ELECTION, MET WITH ME, APOLOGIZED FOR LYING AT FOTI’S DIRECTION ABOUT THE SELF-SURRENDER, AND FURTHER CONFIRMED THAT THEY HAD BEEN DIRECTED NOT TO INFORM THE CORONER OR THE D.A.’S OFFICE OF DR. POU’S ARREST
Despite the Grand Jury rejection of Pou’s case, Foti was running for reelection in the Fall of 2007. Schaeffer approached me and asked me to confer with both he and Virginia Ryder. I met with Virginia Ryder on September 28, 2007, at a coffee shop near her new job location. I also met with Butch Schaeffer on October 5, 2007 in Gonzalez, Louisiana. Both apologized that they had been directed by the Attorney General to lie about the self-surrender as part of the orchestrated arrest of Dr. Pou and the two nurses. Both felt that since the three woman were not flight risks, their arrests was unnecessary. They further confirmed that they had been advised not to consult with or contact the Coroner or the District Attorney about the arrests. They believe that Foti had miscalculated that the arrests would create a “media frenzy”, forcing the Coroner to make a declaration of homicide, the District Attorney's office to prosecute the case and Foti would then become “the hero” for the fall elections of 2007.
The two of them also confided in me that they hoped Foti would not be reelected because he had discredited their Medicaid Fraud Unit by the “media circus” arrest and they had not known the full parameters of the plan by Foti’s political inner circle. While their unit had made substantial financial recoveries from those who engaged in Medicaid fraud, neither of them were homicide investigators and they had no experience in this area and really felt they were “pawns” used by Foti for his own political gain.
When I interviewed Schaefer and Ryder, they would not discuss the facts of the case. I did press both of them about their personal beliefs as to palliative care and Dr. Pou’s defenses. Butch Schaefer advised that, one month before Katrina, he lost his daughter in connection with what he considered medical malpractice involving administering morphine. His view of the investigation was tempered by this event. Likewise, Virginia Ryder when requested to keep an open mind about palliative care, said that her religious beliefs did not allow her to do that.
I repeated to both, Dr. Pou’s emphatic denial of making any statement as to administering “lethal doses” to these patients. I suggested that I believe that, in an effort to point the finger elsewhere, the LifeCare personnel co-mingled statements from Tenet’s Incident Commander, Susan Mulderrick (“we will leave no living patient behind” and “go see Dr. Pou”) with the palliative care comments by Dr. Pou, as an indication of her intended plan to end this life of these LifeCare patients. This was never any such plan by Dr. Pou.
The personal, religious and political philosophies of the investigators, should always be of concern when medical judgment is investigated by these who have certain strongly held beliefs on these issues. There seems no doubt that the actions of Dr. Pou were viewed by these investigators with there own personal mindsets as driving forces and that fact should place this investigation in proper context.
IX. 17 YEARS AFTER KATRINA, HOSPICE CARE AND PALLIATIVE CARE HAVE BECOME COMMONPLACE AND ACCEPTED BY THE GENERAL POPULATION. THAT WAS NOT THE CASE IN 2005, DURING A GREAT DEBATE AS TO “END OF LIFE” CARE ISSUES, IN THE WAKE OF (1) THE TERRI SCHIAVO COURT BATTLE AS TO THE REMOVAL OF ARTIFICIAL LIFE SUSTAINING MEASURES AND (2) THE STATE OF OREGON DEATH WITH DIGNITY STATUTE.
The events at Memorial occurred in 2005 during a time period of great debate as to “end of life” issues. The case of Terri Schiavo who was in persistent vegetative state, had been pending” through the courts for seven years, ending with a court order allowing her removal from life support through artificial means in March of 2005. Other “end of life” issues were being debated such as State of Oregon’s “Death with Dignity” Statute. Seventeen years later, hospice and palliative care concepts are much more commonplace and accepted, and the events in 2005 must be viewed in context of that debate, especially in view of the above stated mindsets of the investigators.
X. SINCE HER EXONERATION BY THE GRAND JURY, DR. POU HAS NEVER TAKEN A “VICTORY” LAP AS TO THE TRAGEDY EVENTS AT MEMORIAL HOSPITAL.
The final scene, depicting a party with people dancing in celebration, along with an imaginary conversation between Dr. Pou and Dr. Horace Baltz, is insulting to Dr. Pou. In point of fact it should be more insulting to Sheri Fink, who contrived the entire fictious episode. Dr. Pou has no memory of any conversation with Dr. Baltz, who apparently left Memorial early. During this imaginary conversation Dr. Baltz explained that the Coast Guard could “fly at night”, a reference to Dr. Pou’s comment about the lack of rescue efforts on her the last night at Memorial. While the Coast Guard and private pilots may have had the capacity to fly at night on Wednesday, August 31st, it was too dangerous. The City was totally dark with the exception of burning buildings and flashes of gun fire from the criminal element. “Law and Order” was not restored until General Russel Honore entered the City with federal troops, two days later on September 2, 2005.
Although Dr. Pou received many recognitions for her service to patients, there was never a “victory” celebration as depicted in the mini-series. Like much else in her book and the Apple TV series, that is a figment of Sheri Fink’s imagination.
More reflective of her attitude as to Dr. Pou’s experience is the words she spoke at a press conference after her exoneration by the Grand Jury on July 24, 2007:
“Today’s events are not a triumph, but a moment of remembrance for those who lost their lives during the storm, and a tribute to all those who stayed at their posts and served people most in need. Dr. Anna Pou” [LINK] Grand Jury “NO TRUE BILL”
(The Louisiana Legislature Actions)
Upon the conclusion of the Grand Jury proceedings, Dr. Pou vowed that no other doctor should have to go through the ordeal she faced and questioned what action can be taken to avoid such circumstances in the future. Using Dr. Pou as a standard bearer, we approached the Louisiana State Legislature to pass the “Disaster Medicine Protocols Acts of 2008” (La.R.S.29:73, et seq. Amendment to Good Samaritan Statute) whereby once the Governor of Louisiana declares a “State of Emergency” with regard to a hurricane and/or some public health emergency, that the standard for civil liability for medical personnel is escalated to require proof of “gross negligence” or “intentional misconduct”, as opposed to “simple negligence” used relative to normal times.
Additionally, a unique statute was passed which protects “medical judgment” by medical personnel in circumstances such as one faced by Dr. Pou. There is now a State requirement that before arresting medical personnel for “medical judgment” issues, that there be a Panel Review by (1) the Coroner in the parish where the death occurs, (2) a representative of the Louisiana Medical Society and (3) a person appointed by the Governor to oversee the review of the facts.
The Louisiana Legislation unanimously passed the above statutes which are in effect whenever the Governor of the State of Louisiana declares such an emergency.
At the conclusion of the Legislation Session of 2009, a number of members of the legislature apologized to Dr. Pou for the actions of state officials in arresting her.
Rep. Pat Connick, House of Representatives on May 11, 2009:
“Many of you know the story of Dr. Pou after Katrina was bearing down on New Orleans, she is a surgeon and she was committed to staying with her patients at the old Baptist Hospital. Because she stayed and because she did her job and because she tried to do what others abandoned her, she was accused of certain things that proved to be false. But to be arrested for doing her job is not right and I think that this is a bill to correct that and give her some saying we’re sorry.”
Sen. Joel Chaisson, President of Louisiana Senate on June 8, 2009:
“Dr. Pou, and I have said it on many occasions, was a hero. She stayed behind and she took care of our citizens in New Orleans. It’s a travesty what happened to her. This is just a small measure by which we can say we are sorry for what happened to you Dr. Pou.”
Sen. John Alario, Finance Committee, on June 8, 2009:
“On behalf of all the members of the legislature, thank you for what you did for the people of Louisiana.” (Emphasis added)
During the 2009 session, the State Legislature approved payment of her legal defense fees in connection with Dr. Pou’s ordeal.
While Dr. Pou and the two nurses were present at Memorial Hospital, Attorney General Foti, Mr. Schaefer, Ms. Ryder and Ms. Fink were not. Unlike Dr. Bryant King and Dr. Horace Baltz, Dr. Anna Pou stayed until the very end as one of the last doctors to visit the LifeCare unit immediately before her departure from Memorial on one of the last helicopters leaving that last night.
Defense Counsel for Dr. Anna Pou
Dr. Steven Karch, M.D., FFFLM (BIO)
Author: Pathology of Drug Abuse (4th Edition)
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Richard T. Simmons