Legal Lessons from Natural Disasters – A Study of the Ordeal atMemorial Medical Center during Hurricane Katrina and the Legislative Response

By Kellyann Creelman

In many ways, Hurricane Katrina was an unprecedented natural disaster for the United

States. The hurricane underscored the gross inadequacy of the country's emergency response

preparedness for a natural disaster of such magnitude. It also highlighted the inadequacy of the

law to deal with the circumstances that any natural disaster can create. What happened in the

hospitals of New Orleans after Hurricane Katrina has been the subject of intense speculation and

scrutiny – particularly the events at Memorial Medical Center. This article examines those

events, arrests of Dr. Anna Pou and two nurses, Cheri Landry and Lori Budo, , and the judicial

and legislative responses after Hurricane Katrina shook the core of New Orleans' Memorial

Medical Center.

This article presents an in-depth time-line of events that took place at the hospital and

throughout New Orleans as Katrina ravaged the city. Next, I discuss the effects the hurricane

had on the doctors at Memorial Medical Center, the attorney general's investigation, the coroner's

dilemma, the media frenzy, and the outcome of the grand jury hearings. Finally, I will discuss

the changes in Louisiana laws as a result of the events in August of 2005..

Memorial Medical Center

The city of New Orleans was built primarily below sea level. The location of the city has

been described as sitting at the center of a large bowl with a slight decline decline from all edges.

Memorial Medical Center was built in 1926. The center is located in the bowl of New Orleans,

three miles southwest of the city's French Quarter and three feet below sea level. It served a

diverse client base as it was situated a few blocks from a housing project and a short walk to the

mansions of Uptown New Orleans. Memorial Medical Center was bought by Tenet Healthcare,

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a Dallas-based commercial healthcare chain, in 1995. For almost 80 years the hospital's sturdy

walls served as a shelter for patients, employees, families, and neighbors.1

Memorial's seventh floor housed The LifeCare Hospitals of New Orleans, which operated

a “hospital within a hospital” for injured or critically ill patients in need of 24-hour care and

intensive therapy over an extended period of time. LifeCare had its own administrators, doctors,

nurses, pharmacists and a supply chain separate from Memorial's. Most of LifeCare's 52 patients

were bed-bound or required electric ventilators to breathe.2

Dr. Anna Pou is a New Orleans native whom colleagues described as a dedicated,

hardworking physician who, though physically small, “had a huge presence” in the hospital.3 At

the time, Dr. Pou was a 49-year-old head- and neck-cancer surgeon whose strong work ethic

earned respect from doctors and nurses at Memorial. She was described by her colleagues as

funny and sociable, and always put her patients at the center of her life.4 She was “on call” at

Memorial the weekend Katrina hit, but chose to volunteer her services because she felt she

would be needed.5

Sunday, August 28, 2005 – The City Prepares

Hurricane Katrina approached land near New Orleans as a Category 5 storm, the most

severe of hurricanes.6 On Sunday, August 28, Louisiana Governor Kathleen Blanco stated that

President Bush called her just before the press conference and said that he was “concerned about

the [storm’s] impact” and asked her “to please ensure that there would be a mandatory

evacuation of New Orleans.”7 Although Mayor Ray Nagin was hesitant to evacuate due to his

concerns about the city's liability for closing hotels and other businesses, he ordered a mandatory

evacuation of the city, the first for a United States city of this size since the American Civil War.8

For those unable to leave New Orleans, shelters, including the Superdome, were set up as

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“refuges of last resort.” By evening the rains began pouring down.9

Monday, August 29, 2005 – The Storm Strikes

By Monday morning, approximately 2,000 people had taken shelter at Memorial Medical

Center, including 200 patients and 600 workers.10 Just before 5:00am, New Orleans' city power

supply to the hospital failed. Memorial's auxiliary generators immediately kicked on to power

only the necessary equipment – emergency lights, critical medical equipment, but no air-

conditioning.11 When the storm hit land at 6:10am, Memorial's windows shattered under a hail

of debris from nearby buildings, and its walls groaned and shook violently.12

By Monday afternoon, the hospital seemed to have weathered the storm. Search-and-

rescue operations began throughout the city, but the government's rescue efforts and

communications were unorganized and chaotic.13

Storm surges lashed parts of New Orleans with several feet of water. By the end of the

storm, several flood-walls and levees, including the 17th Street Canal, the London Avenue Canal,

and the Industrial Canal, were over-topped with water and breached. According to reports, 80%

of the city was under water with some areas experiencing water levels as high as twenty feet.14

Tuesday, August 30, 2005 – Evacuations Begin

Governor Blanco ordered a mandatory evacuation of New Orleans, including those at

shelters in the city, on Tuesday, August 30th.15 By noon, Homeland Security Secretary Michael

Chertoff declared Katrina an “incident of national significance,” and became aware that the

levees breached could not be plugged. Chertoff launched a full federal response under the

National Response Plan headed by FEMA director Michael Brown.16

By Tuesday morning, Memorial's interior had been transformed into a “fetid catacomb of

Third World despair: the power was out, there was no running water, temperatures soared to 110

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degrees” and, as Dr. Pou described, “the smell was so rancid it would burn the back of your

throat.”17 When Dr. Pou looked out a window, what she saw was hard to believe: water, rimmed

with garbage, began gushing from the sewer grates and crawled in the direction of Memorial, it

“probably rose about a foot an hour”.18 Employees quickly understood the danger posed by the

advancing water. Memorial's main emergency-power transfer switches were located only a few

feet above ground level, leaving their electrical system extremely vulnerable. Although facilities

personnel had warned, “it won't take much in height to disable the majority of the medical

center,” after Hurricane Ivan one year earlier, it was too costly to fix the problem and only a few

less-expensive improvements were made.19

Administrators began contacting other hospitals, warning that Memorial would have to

evacuate over 180 patients. Although New Orleans hospitals had participated with the Federal

Emergency Management Agency and other state agencies in 2004 to prepare for a catastrophic

hurricane, there was no organized plan for evacuation of the hospitals. James Aiden, the medical

director for emergency preparedness at Louisiana State University said that government officials

assumed the facilities would be self-sufficient for five to seven days.20 Memorial did have a 246-

page emergency plan, however, the document offered no guidance for dealing with a complete

power failure nor how to evacuate the center if the city streets were flooded.21

Just after noon, Dr. Richard Deichmann, Memorial's soft-spoken medical-department

chairman, organized roughly two dozen physicians and several nurses on the fourth floor (which

eventually became the hospital's “command center”) to discuss their plan of action in evacuating

the hospital.22 The group agreed to enter into standard triage by allocating aid on the basis of

need for medical treatment. Babies in the neonatal intensive-care unit, pregnant mothers and

critically ill adult I.C.U. Patients were at great risk from the intense heat and got first priority.

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Doctors also agreed that Do-Not-Resuscitate (D.N.R.) patients would be evacuated last.i

Doctors believed the D.N.R. patients should go last because they would have the “least to lose”

compared with other patients if tragedy struck.23 At the time, the doctors did not believe this

decision would ever come into effect as they trusted rescuers would evacuate the hospital within

a few hours.

It is important to note that LifeCare administrators were absent from the meeting with Dr.

Deichmann. No one discussed evacuating LifeCare's patients specifically, despite the fact that

some of the doctors worked for both Memorial and LifeCare.24

In the afternoon, Coast Guard and privately owned helicopters began landing on a long-

unused helipad on top an eight-story parking garage adjacent to Memorial.25 As the Coast Guard

had already rescued over 1,200 people stranded through the city,26 the helicopter pilots were

impatient while doctors and nurses tried to get as many critical patients as possible to the

helipad.

In order to get to the helipad, each patient was placed on a stretcher and carried by staff

members down the dark stairwell to the second floor. They were then passed through a three-

foot-by-three-foot opening in the machine-room wall that served as a shortcut to the parking

facility. Most patients were placed on the bed of a pickup truck and driven to the top of the

garage. The patients were then carried up two flights of metal stairs to the helipad landing.27

At LifeCare, confusion reigned. Diane Robichaux, the seven-month pregnant “incident

commander” had established computer communications with LifeCare's corporate office in

Texas and was assured that her patients would be included in any FEMA evacuation of

i Under Louisiana law, a D.N.R. Patient with a “terminable and irreversible condition” could request in advance that “life-sustaining procedures” be withheld or withdrawn. (Louisiana Living Will Law. Title 40 – Public Health and Safety Code, Part XXIV – A. Declarations Concerning Life-Sustaining Procedures § 1299.58.3.)

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Memorial. However, the communications grew frantic as the day wore on and it became clear

that the government's rescue efforts were in disarray. Robichaux requested that Memorial add

her 52 patients to the rescue plans being organized with the Coast Guard by helicopter and

national guard trucks. Memorial informed Robichaux that they had to obtain permission from

it's corporate owner, Tenet Healthcare, before any actions were taken.ii, 28

Memorial staff had spent close to three days on duty, under intense stress and with very

little sleep. It was dark when the last of the critical patients were finally evacuated from the

center. The Coast Guard offered to evacuate more patients throughout the night, but Memorial

declined because the helipad had very little light, no guard rail, and the staff needed rest. By

Tuesday night, Memorial had lowered its patient count from 187 to roughly 130. About 25 were

rescued by helicopter, the remainder by National Guard trucks before the water level rose too

high to access the emergency room ramp.29 However, on the seventh floor, all 52 LifeCare

patients remained, including seven who were barely surviving on ventilators.30

Wednesday, August 31, 2005 – Memorial Initiates Reverse Triage

Cutting his vacation short, President Bush flew back to Washington D.C. Although he

did not stop in Louisiana, Air Force One flew low over the Gulf Coast so the President could

view the devastation. Soon after, he declared a Public Health Emergency for the Gulf Coast and

organized a task force to control the relief effort.31

On Wednesday, the first reports of widespread looting and violence were reported. “The

looting is out of control - the French Quarter has been attacked,” New Orleans councilwoman,

Jackie Clarkson remarked, “We're using exhausted, scarce police to control looting when they

should be used for search and rescue.”32

ii LifeCare staff members refused several offers of evacuation assistance from Memorial on Tuesday afternoon. (Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 5.)

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By 2:00am, Memorial's auxiliary generators had shut off.33 On the seventh floor,

LifeCare's critically ill patients began suffering the consequences. Life-support monitors and

ventilators briefly switched to battery reserves and continued to support seven patients' lives.

Approximately 30 minutes later, the batteries failed and patients were rushed to the helipad

where, luckily, a Coast Guard helicopter arrived just in time. Three of the LifeCare's seven most

critical patients passed away on their trek to the helicopter pad.34

By this time, Memorial's morgue was full and employees began wheeling bodies into the

chapel on the second floor. As the sun rose, the temperature in the hospital climbed back above

100 degrees. Again Memorial suffered through the day with no running water, backed up toilets,

diminishing supplies, and a first floor flooded with a soupy ocean of sewage water.35

Early Wednesday morning, doctors and nurses discussed their plan with the 100

remaining Memorial and LifeCare patients. The group decided to initiate “reverse triage,” which

is common during any devastating event where there are far more severely injured victims than

ambulances or medics. The staff divided the remaining patients into three categories. Although

there was no single doctor officially in charge of categorizing patients, Dr. Pou was energetic and

jumped into action by marking patients' gowns with a permanent marker.36

Those in fairly good health and could sit up or walk were marked with a “1.” They were

prioritized first for evacuation and taken to the emergency-room ramp on the second floor where

a few of the hospital workers commandeered neighborhood boats for evacuation. The patients

who were sicker and needed assistance with evacuation were labeled “2” and taken to the second

floor corridor leading to the hole in the machine-room wall that served as a shortcut to the

helipad. The remaining patients were marked at a “3” and were moved to a corner of the second

floor lobby. These patients included those whom doctors judged to be very ill and those with

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D.N.R. orders. Doctors and nurses continued to care for all patients – diapers were changed, and

patients were fanned and given sips of water – but most medical interventions – including

administering and monitoring IV's or oxygen – were very limited.37

Several helicopters came to rescue the “category 2” patients in the morning but after the

President flew over New Orleans that afternoon, very few helicopters returned. The Coast Guard

began to focus its efforts on saving people stranded on rooftops around the city. Administrators,

worried that intruders from the neighborhood might ransack the hospital for drugs and valuables,

distributed guns to employees in the parking garage.38 Several people floated up to the hospital

during the day, looking for shelter and medical aid. René Goux, the hospital's chief executive,

had decided, for safety reasons, that they would be told to “go away” and directed to dry ground

about a mile south. Memorial was no longer a treating hospital but a shelter that had run out of

supplies and needed to be emptied.iii, 39

Later in the afternoon, Dr. Ewing Cook, a Memorial administrator, made his way to the

eighth floor where only one D.N.R. patient remained - Jannie Burgess, a 350 pound, 79-year-old

woman with advanced uterine cancer and kidney failure. She was being treated for comfort only

and was sedated to unconsciousness with morphine. Dr. Cook believed he would be unable to

make it up to the eighth floor again (due to two prior heart attacks, the intense heat, and physical

and mental exhaustion). He also did not think it would be possible to get Burgess down six

flights of stairs. Dr. Cook estimated that the patient only had a few days to live, and the nurses

caring for her were desperately needed elsewhere. He realized the morphine that kept her

sedated for days provided an answer.40

iii Dr. Bryant King, who will be mentioned later, strongly disagreed with René Goux's decision. Dr. Cook begged with the chief to allow the people in need to medical assistance to be admitted into the center, Goux ignored his request. (Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.)

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Morphine, a schedule II narcotic,iv is frequently used to control severe pain or discomfort,

it can also slow breathing, and very high doses can lead to death. Dr. Cook had experience with

morphine as a pulmonologist (a medical specialist in the lungs and respiratory system). When a

patient, or their family, made the decision to disconnect a ventilator, Dr. Cook would prescribe

morphine to ensure the patient was not gasping for breath when the machine was withdrawn.

The intent was to provide alleviation, but it resulted in death. To Dr. Cook, the difference

between something ethical and something illegal “is so fine as to be imperceivable.”41

Dr. Cook realized that Jannie Burgess' situation was different than any of his previous

pulmonology patients because the painkillers did not make her uncomfortable. However, he

imagined the worst-case scenario as Burgess waking-up finding herself and her surroundings in

the ravaged condition while being moved downstairs or to the helipad. Dr. Cook asked Burgess's

nurse to increase her morphine, “giving her enough until she goes.”42 He then wrote on Burgess'

chart “pronounced dead at...” left the time blank and signed the bottom. Dr. Cook believed he

had done the right thing and headed back to the second floor. “To me it was a no-brainer... I don't

feel bad about what I did... I gave her medicine so I could get rid of her faster, get the nurses off

the floor... There is no question I hastened her demise.”43 This was the first documented instance

of potential euthanasia at Memorial.v In this desperate situation, Dr. Cook only saw two choices:

to quicken patients' deaths or abandon them. Assistance was coming too slowly and there were

far too many people who needed to leave. “It was actually to the point where you were

considering that you couldn't just leave them; the humane thing would be to put 'em out,” said

Dr. Cook.44

iv As defined by the United States Controlled Substances Act, 21 U.S.C. § 812.v Dr. Cook seemed to have admitted to assisted suicide, euthanasia, or some other possible crimes, however he

was never criminally charged for Jannie Burgess' death.9

Down on the second floor, Dr. Pou was directing care. Patients took up all the floor

space. In Richard Deitchmann's memoir, “Code Blue,” he was surprised that afternoon when

Susan Mulderick, the 54-year-old nursing director and Memorial's rotating “emergency-incident

commander,” asked him his thoughts regarding euthanizing the “category 3” D.N.R. patients.vi

Deitchmann told her, “Euthanasia's illegal... There's not any need to euthanize anyone. I don't

think we should be doing anything like that.”45 His plan was still to evacuate the D.N.R.

patients, but to keep them at the bottom of the priority list.

As night approached, evacuations ceased because people in the neighborhood were

shooting at rescuers. For the third night in a row, doctors were working with scarcely any sleep.

Patients continued to fight through the night with no food and very little water.46

Thursday, September 1, 2005 – The Hospital Clears Out

There are conflicting stories as to what happened on Thursday. On one hand, in an

interview with Newsweek, Dr. Pou claimed employees were told by a hospital administrator that

no more help would arrive.47 This was supported by most of the interviews taken with Dr. Pou.

However, in an interview with the New York Times, Dr. Pou remembers Curtis Dosch,

Memorial's CFO, announced that Tenet was dispatching a fleet of privately owned helicopters to

Memorial. Within a couple hours military and private aircrafts and boats came to rescue more

people at the hospital. Soon after, local State Police officers ordered that everyone had to be out

of the hospital by 5:00 that night due to civil unrest throughout the city; they also stated that they

would not stay any later to protect the hospital.48

During the day Dr. Cook and Dr. Pou met to discuss the “category 3” patients,

specifically nine who had never been brought down from the LifeCare floor. Both doctors were

vi Through her lawyer, Mulderick denied that she had any euthanasia conversation with anyone at Memorial. (Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.)

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worried that they would not be able to evacuate the patients before 5:00. Dr. Cook had never

been on the seventh floor since Katrina struck, but thought the patients were “chronically death-

bound” and did not see any way to evacuate them.49

Dr. Cook instructed Dr. Pou on how to administer a mixture of morphine and a

benzodiazepine sedative – the effect was that the drugs would gradually slow the patients'

respiration until they stopped breathing. He viewed it as an easy way to ease the patients out of a

terrible situation.50 When Pou was later asked who specifically appointed her to administer the

mixture to the nine patients on the LifeCare floor, Pou replied, “It was a group decision. I didn't

really volunteer for anything.”51 Her intention was only to “help the patients that were having

pain and sedate the patients who were anxious” because “we knew they were going to be there

another day, that they would go through at least another day of hell.”52

Therese Mendez, an executive LifeCare nurse, returned to the seventh floor and saw

several unconscious patients, frothing at the mouth and erratically breathing. She found Dr. Pou

who told her that the LifeCare patients probably were not going to survive. Dr. Pou told

Mendez, “the decision had been made to administer lethal doses” of morphine and other drugs.53

When Diane Robichaux, the incident commander in charge of LifeCare, proceeded to ask

Susan Mulderick, Memorial's executive nursing director, when the LifeCare patients on the

seventh floor would be evacuated, Mulderick replied, “The plan is not to leave any living

patients behind,” and referred her to Dr. Pou.54

Dr. Pou told Robichaux and Mendez that she and the other Memorial staff members

would assume responsibility for the remaining LifeCare patients, “I want ya’ll to know I take full

responsibility and ya’ll did a great job taking care of the patients.”55 Dr. Pou also insisted that

the LifeCare nursing staff not be involved and they should ordered off the floor. Mendez left to

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dismiss her employees as they were forced downstairs by several Memorial workers.56

Robichaux told Dr. Pou that she was concerned about one patient, Emmett Everett, a 61-

year-old, 380-pound man who was “very aware” of his surroundings and on several occasions

appealed to his nurse not to leave him behind.57 He, along with three other LifeCare patients on

the seventh floor had no D.N.R. order. Dr. Pou, along with the two nurses, concluded that the

paralyzed patient was too heavy to be maneuvered down the stairs and through the machine-

room wall. Later, staff members who helped with boat and air evacuations said they would have

certainly found a way to evacuate Everett but were never made aware of his situation.58

According to statements made by Steven Harris, LifeCare's pharmacist, Dr. Pou brought

several vials of morphine and midazolam to the seventh floor.59 Like morphine, midazolam

depresses breathing. Dr. Pou drew fluid from vials into syringes, entered Everett's room and shut

the door. She continued down the hallway to Wilda McManus' room and told her “I am going to

give you something to make you feel better.”60 Two patients resided in the neighboring room,

Alice Hutzler and Rose Savoie, both women were alert and stable that morning. “That burns,”

Savoie spoke quietly as Dr. Pou injected them both with the lethal mixture.61

On the second floor, roughly a dozen “category 3” patients remained. Some of the

patients were being evacuated with help from volunteers and medical staff. Around noon, Dr.

Bryant King, a Memorial physician, saw Dr. Pou holding several syringes and telling patients

“I'm going to give you something to make you feel better.”62 Dr. King remembered the

conversation he had earlier with a colleague who asked him how he felt about the doctors

hastening patients' deaths. He did not agree with their actions. and did not think any of the

patients were in the kind of pain that called for sedation, let alone “mercy killing.”

Dr. King also noticed a significant change: “there were no more fanners, there were no

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more nurses checking blood sugars or blood pressures... It didn't make any sense that we were

stopping what we had been doing.”63 This was an eerie departure from protocol because

physicians did not normally give medication unless there was a critical need.64 When he saw Dr.

Pou with the syringes, he grabbed his belongings and stormed to the boat-loading area. Dr. King

sent out text messages asking family and friends to tell the media that doctors at Memorial were

accelerating patients' death.vii, 65

Dr. Bill Armington, a Memorial neuroradiologist, was upset with the way Dr. King left.

After a conversation with Dr. Cook, Dr. Armington suspected euthanasia might occur and

immediately made his way up to the helipad to help get people off the roof and to safe grounds.66

By late Thursday afternoon only a few nurses and three doctors remained on the second

floor; Dr. Pou; Dr. Kathleen Fournier, a young internist; and Dr. John Thiele, a 53-year-old

pulmonologist. Dr. Thiele did not know Dr. Pou by name, but she appeared to be the physician

in charge. Dr. Pou told him that the “category 3” patients were close to death and would not

survive an evacuation. Dr. Thiele thought the looters and chaotic crowds of New Orleans - “the

animals” as he called them – might storm the hospital, looking for drugs after everyone had

gone. “I figured, What would they do, these crazy black people who think they've been

oppressed for all these years by white people? I mean if they're capable of shooting at somebody,

why are they not capable of raping them, or, or, you know, dismembering them? What's to

prevent them from doing things like that?”67 He asked Dr. Pou if she needed help. Dr. Thiele

previously practiced pallitative care medicine and was certified to teach it. He later told a New

York Times journalist that he knew what they were about to do, it seemed right even though it

vii Dr. King later told a New York Times journalist that he did not intervene because he didn't think his opinion, which hadn't mattered when he argued against turning away the hospital's neighbors, would be heard by administrators. (Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 13.)

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was technically “a crime,”... “the goal was death; our goal was to let these people die.”68

Dr. Thiele remembers turning to Karen Wynn, the highly respected I.C.U. nurse manager

at Memorial who led the hospital's ethics committee, and asked, “Can we do this?”69 Karen

Wynn thought it was necessary to medicate the patients and the aim was to make patients

comfortable by sedating them, she was motivated by how bad the patients appeared.70 Wynn,

later stated, “[All the staff could offer was] comfort, peace and dignity... We did the best we

could do. It was the right thing to do under the circumstances.”71

Most patients died within minutes of being medicated, but Dr. Thiele remembers one

heavy-set African American patient struggled to stay alive through multiple doses of morphine.

Wynn claims that she and her colleagues took it as a sign from God and struggled to get him to

the helipad for evacuation.72 However, Dr. Thiele has a very different recollection of events, “We

covered his face with a towel” until his breathing stopped.73 Dr. Thiele says that he knew what

he did was right, “We were abandoned by the government, we were abandoned by Tenet, and

clearly nobody was going to take care of these people in their dying moments... I did what I

would have wanted done to me if the roles were reversed.”74

Thursday afternoon, Memorial's pathologist walked through each floor of the hospital to

record the locations of the dead and to make sure nobody alive was left behind. Throughout the

day the hospital was cleared of all remaining people.75

At 9:00pm, Rodney Scott, an overweight I.C.U. Patient recovering from surgery, was the

last living patient to leave the hospital grounds.76 Rodney Scott, Dr. Thiele, and Wynn were

flown in separate helicopters to Louis Armstrong New Orleans International Airport, where

hundreds of hospital and nursing-home patients were met by federal disaster-management teams

attempting to provide basic care though understaffed and under-supplied.77 Dr. Thiele, in an

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interview with the New York Times remembers, if the patients he injected with morphine had

made it to the airport, they would not have survived anyway.78 By Friday, September 2, the

remaining staff at Memorial Medical Center were rescued.

Foti's Investigations

The building remained empty until September 11th, when mortuary workers could finally

recover the bodies that covered the second floor. Disaster Mortuary Operations Team carried 45

corpses from Memorial, more than any comparable sized hospital in the drowned city.79 Eleven

patients died before the hurricane hit New Orleans and 24 of the dead had been LifeCare

patients.80

The same day the bodies were recovered, the Daily Mail, a British newspaper, ran a story

regarding an interview with an unidentified New Orleans doctor who admitted to killing

patients.81 The doctor (presumably Dr. Pou) reported saying, “I didn't know if I was doing the

right thing. But I did not have time. I had to make snap decisions, under the most appalling

circumstances, and I did what I thought was right... I injected morphine into those patients who

were dying and in agony. If the first dose was not enough, I gave a double dose.”82

Due to numerous allegations of patient abandonment and euthanasia, the Louisiana

attorney general, Charles Foti Jr., opened investigations into hospital and nursing home deaths

during Hurricane Katrina.83 The investigation focused on five hospitals and ten nursing homes,

Foti's office reviewed 215 patients' deaths.84 That day, an anonymous LifeCare attorney called

the Louisiana Justice Department to relay a report that nine patients at Memorial may have been

given lethal doses of medication.85 No other hospital in the New Orleans area had authorized

euthanasia of its patients as a response to the natural disaster.86 Soon after, federal and state

investigators interviewed witnesses and entered back into the hospital to search for evidence.

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The Coroner's Dilemma

Foti asked Orleans Parish coroner, Dr. Frank Minyard, to perform autopsies and drug

tests on over 100 bodies recovered from various hospitals and nursing homes around the city,87

Minyard performed autopsies on all 45 bodies from Memorial.88 For Dr. Minyard, the burden

was great, he was struggling with the amount of autopsies already on his list as well as

identifying hundreds of Katrina victims. Dr. Minyard performed the autopsies in the following

two weeks, he also sent specimens to National Medical Services in Wilkes-Barre, Pennsylvania

for drug toxicology reports.89 National Medical Services detected morphine in nine bodies – the

same patients the LifeCare lawyer identified over the phone with the Justice Department as

potential victims.viii,90 Investigators also found prescriptions for large amounts of morphine for

three of the nine patients. The prescriptions all were signed and dated by Dr. Pou on Thursday,

September 1.91 Establishing the cause of death for the nine patients posed a problem - the bodies

baked in the sweltering heat for ten days before they were recovered, and autopsies were not

completed for an additional week.92

In February of 2006, after consulting many experts, Dr. Minyard announced that he could

not determine whether the patients had died from natural causes or from homicide.93 He sought

the help of a former colleague, Dr. Michael Baden, who, after reading all medical documents,

concluded, “... the patients died as the result of the improper administration of morphine with

and without Versed... It is in my further opinion that each died of morphine poisoning... these

simultaneous deaths mandate a homicidal manner of death.”94

Medical records were also sent to Dr. James Young, the former chief coroner of the

viii The patients were later identified in Coroner Frank Minyard's reports as: Hollis Alford, Harold Dupas, Emmett Everett, George J. Huard, Alice Hutzler, Wilda S. McManus, Elaine Nelson, Rose Savoie, and lretha B. Watson. (William Bradley, Autopsy and Toxicology Reports, October 22, 2007. (letter) Accessed October 31, 3009 at http://www.nola.com/katrina/files/102107_memorial_autopsy.pdf/ )

16

Province of Ontario, Canada, who once served as president of the American Academy of

Forensic Sciences. Dr. Young commented, “All these nine patients survived the adverse affects

of the previous day and for every patient on a floor to have died in [a] three and a half hour

period with drug toxicity is beyond coincidence.”95 Dr. Young also noted that “the

administration of the drug was not documented... Accidental overdoses would need to have

occurred nine times between 12 noon and 3:30 p.m., all on one floor, to every patient who was

left on the floor... morphine was not ordered for seven of the patients and Versed was not ordered

for any.”96

Dr. Minyard also sent the files to Dr. Frank Brescia, an oncologist and palliative care

specialist in New Orleans. Dr. Bresia wrote to Dr. Minyard, “It is in my opinion that these

patients were terribly ill, with some very close to death. The external circumstances were

horrific, i.e., no water, toilets, electricity, air conditioning – which I expect contributed, to some

extent, to hastening their deaths. However, after studying the charts carefully, I feel that the

manner of death in these individuals, especially in four cases, obligates the legal process to

consider them as homicides.”97

Foti's office hired Cyril Wecht, a forensic pathologist, to review the deaths of four

patients whose full medical records were recovered from the hospital (Emmett Everett - 61, Rose

Savoie - 90, Ireatha Watson - 89, and Hollis Alford – 66).98 Wecht concluded, “The primary and

immediate cause of death for each of these patients was acute combined drug toxicity,

specifically morphine and Versed... the manner of death would be classified as homicide.”99

All four victims were expected to live through the hurricane, as none were in danger of

imminent death from natural causes.100 Rose Savoie was ill from bronchitis, but was otherwise

in good health.101 Jennie Crabtree, Savoie's daughter, said, “She didn't act like a 90 year-old; she

17

was all there. She knew where she was. She knew who she was.”102 Emmett Everett “could

have lived for years. All he wanted was to live to be with his grandkids.”103 Ireatha Watson was

ill from gangrene in both legs and dementia, but she was in stable condition when last visited by

her daughter, two days before Katrina hit.104 She was scheduled to have both legs amputated on

August 29, the day the hurricane arrived.105 Finally, Hollis Alford's chart shows that he was

“resting calmly” the previous afternoon with no other documentation of pain or distress to

indicate the need for drugs.106

None of the victims complained of any pain on Thursday, and thus did not require any

strong medication like morphine or Versed.107 There were no orders on any of the victims'

medical charts for the prescription of either drug.108 The drugs had not previously been given to

these patients in their routine care.109 Finally, no consent was sought or given for the lethal

doses.110

It seems as if the victims were lied to when given lethal doses. Dr. Pou told Everett she

was going to give him something for his dizziness, even though he was conscious and alert;111

and Rose murmured, “that burns,” when she was injected with the drugs.112 None of the victims

were under the care of Dr. Pou or either nurse.113 A witness said that the doctor did not appear

familiar with any of the LifeCare patients or their conditions.114

After months of interviews and collecting documents, investigators came to believe that

as many as two dozen patients at Memorial were euthanized by doctors and nurses.

Unfortunately, medical records were needed to substantiate the findings and, according to Tenet

lawyers, most of the charts were unavailable.115 State prosecutors, armed with the testimony of

LifeCare workers and records of the four patients on the seventh floor, decided their best case

was against Dr. Pou and nurses Cheri Landry and Lori Budo.

18

Arrest warrants were issued on July 17, 2006 by an Orleans Parish Criminal Court judge

in New Orleans upon an affidavit from Special Agent Virginia B. Rider of the Louisiana

Department of Justice, Criminal Division, Medicaid Fraud Control Unit in Baton Rouge.116

Despite the fact that Dr. Pou agreed to turn herself in weeks before if an arrest warrant was

issued,117 around 9:00pm Pou opened her door to find state and federal agents with a warrant for

her arrest.118 Dr. Pou was still dressed in scrubs when she was read her rights, handcuffed and

brought to the Orleans Parish jail on four counts of principal to second-degree murder. Cheri

Landry and Lori Budo were arrested the same night.119

Dr. Pou was booked and released by morning. The following day Foti held a news

conference with CNN. Foti was quoted saying, “This is not euthanasia... This is plain and simple

homicide... [Morphine and Versed,] either one of them can kill you – but when you use both of

them together it becomes a lethal cocktail that guarantees [the patients] are going to die.” ix, x, 120

As the investigation progressed, Carrie Everett, Emmett Everett's widow, along with two

other victims' families filed wrongful death suits against Dr. Pou, LifeCare, Tenet, Landry and

Budo (these cases are still pending and all documents have been kept confidential).121

Medical professionals immediately weighed in with various media outlets. Ethicists drew

ix Many doctors, including Dr. Ben deBoisblanc, a critical care expert who attended 50 critically ill patients stranded for five days at the nearby Charity Hospital, did not agree with Foti's claim. “This is absurd. If it were true, then thousands of people would be dying at the hands of doctors every day, because we use these drugs in combination all the time to give comfort, either during hospital procedures or at the end of life.” He also notes, “Versed and morphine are appropriate drugs to ease suffering at the end of life in such a situation... if you didn't find sedatives and analgesics in these people, I would think that was inhumane. The very fact that you see these drugs means nothing... Versed relieves anxiety and gives patients amnesia for events so they don't have horrible recollections of frightening events. Morphine is used to relieve pain. The combination is not some witch's brew, as was inferred during the press conference announcing the arrests.” (Dr. Ben deBoisblanc, It was Heroism, Not Homicide, TIME MAGAZINE, July 25, 2007.)

x However, Rob Middleburg, who was the toxicology expert at National Medical Services in Wilkes-Barre, Pennsylvania, stated that “the presence of Versed is a red flag in post-mortem examination. Whenever you find it out of the blue, we always raise our eyebrows a little bit. Versed is typically used with a surgery, it's used almost exclusively in relation to general anesthesia, and you don't find it used very often day to day for therapeutic circumstances. (James Varney, Doctor's Drug Mix Not Ideal Killer, August 6, 2006, available at http://www.nola.com/printer.ssf?/base/news-6/1154844156102520.xml&coll=1/ last accessed on November 22, 2009.)

19

distinctions between euthanasia and assisted suicide on one hand and palliative care on the other.

Intent to kill or inflict great bodily harm is a requirement for a second-degree murder charge in

Louisiana,xi so Foti's general accusation meant that he believed Dr. Pou's actions were euthanasia

or assisted suicide, not palliative care. A patient may die as a result of receiving pain control

medication, but if the intent is to palliate, not harm or kill, that death is not legally considered

euthanasia.122

Dr. Pou contacted Richard Simmons, an attorney referred by the Louisiana State

University, “At that point in time, she was being terrorized by the media, CNN was pressing her:

'You'd better come tell your side of the story; we're going with it. And then she became a person

of interest.”123

At a news conference later that day, the attorney blamed the storm and the circumstances

for the patients' deaths. He claimed Dr. Pou was innocent and accused Foti of orchestrating a

media event with the arrests to gain support for his re-election.124 Simmons intended to bring his

own investigation to the Orleans Parish district attorney, who had jurisdiction over the case, in

hopes to present it to a grand jury.125 Simmons said he knew the government's case was a loser,

determining drug-dosage levels from the decomposing bodies was near impossible. “I was

interfacing with the district attorney saying, 'You don't have the forensics...' The bodies were

there for 10 or 11 days before they even retrieved them. And so they made a big forensic jump in

terms of what evidence they thought they had there.”126

To reform Dr. Pou's reputation, Simmons worked with a CBS correspondent, Morley

Safer, to coordinate an appearance on 60 Minutes, “I think the world needed to know that this

girl is not a murderer.”127 The interview was a risky move, but Simmons felt justified in the way

xi In Louisiana, “second-degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.” (La. R.S. 14:30.1)

20

Dr. Pou presented herself on camera – she appeared anxious, but confident in her innocence. “It

just came through. Anybody that listened to it would have said that this woman couldn't have

killed these people... [it] was the turning point.”128

On 60 Minutes, when asked whether or not she murdered the patients, Dr. Pou responded,

“No, I did not murder those patients... I've spent my entire life taking care of patients. I have no

history of doing anything other than good for my patients. I do the best of my ability.”129 Dr.

Pou claimed that she was not capable of any sort of mercy killing, let alone murder, “I do not

believe in euthanasia. I don't think that it's anyone's decision to make when a patient dies...

However, what I do believe in is comfort care. And that means that we ensure that they do not

suffer pain.”130 Dr. Pou concluded the interview with, “I'm very committed and I love what I do.

I mean, I really love it. It is the best thing about my life. And the fact that I may not be able to

continue to do the thing that I love the most when I know I can do a lot of good is just

phenomenally, phenomenally painful to me.”131

Three days after the CBS interview, the 6,116-member Louisiana State Medical Society

issued a press release stating that the LSMS was “confident that Dr. Pou performed courageously

under the most challenging and horrific conditions and made decisions in the best interests of her

patients... Her long and distinguished career as a talented surgeon and dedicated educator should

not be tarnished as a result of these accusations.”132 The Baton Rouge Ear, Nose & Throat

Society took out a full page ad in the July 27, 2006 edition of The Advocate, boldly addressing

“The People of Louisiana” and commending Dr. Pou's career-long dedication to her patients

suffering from head and neck cancer, “Dr. Pou is a true patient advocate, teacher, and friend.

Her compassion is unmatched. Her dedication is unequaled. Following her arrest, her first

concern was only for her patients. We hold Dr. Anna Pou in the highest regard both

21

professionally and ethically.”133

The Grand Jury

Foti turned the investigation over to the Orleans Parish District Attorney, Eddie Jordan,

who in turn impaneled a grand jury to consider Dr. Pou's charges. In March 2007, the grand

jurors who would decide Dr. Pou's case were sworn in. Through the summer the panel met once

a week to review evidence at an undisclosed location.134

Normally prosecutors advocate indictment, but the assistant district attorney, Michael

Morales told a New York Times journalist that he and Eddie Jordan “weren't gung-ho” about

prosecuting the case. “We were going to give some deference to the defendant” because Dr. Pou

wasn't the usual career criminal accused of murder. At the same time, “we weren't going to shirk

our duties and tank [the case].” He personally “didn't care one way or the other” about the

outcome.135

Rather than have all evidence presented as Foti strongly suggested, the jurors were

invited to act as investigators and decide what evidence they wanted to consider. Foti repeatedly

asked the district attorney's office to present all the evidence and the experts to the jury, but was

declined .136 The jury did hear from Dr. Minyard, but not any of his forensic experts; nor any

LifeCare employees on the floor during most of the ordeal; nor the main Justice Department

investigator.137 Dr. Minyard never publicly revealed his opinion about the case until 2009. In the

end he decided that four of the nine deaths were homicides.138 “I strongly do not believe she

planned to kill anybody, but it looks like she did,” said Dr. Minyard.139

The jury also heard from only two LifeCare nurses, Budo and Landry, who were

compelled to testify after the district attorney decided not to prosecute them. They publicly

expressed their support for Dr. Pou.140

22

On July 17, 2007, a support rally marked the one-year anniversary of Dr. Pou's arrest.

Hundreds of people gathered in New Orleans' City Park to support Dr. Pou. Speakers aimed

their comments directly at the grand jury, warning that the physicians across the country would

be discouraged from staying behind and caring for their patients in future similar situations if Dr.

Pou was indicted..141

The grand jurors stopped hearing evidence the week of the rally. The district attorney's

office prepared a ten-count bill of indictment against Pou for the grand jury to consider – one

count of second degree murder in Emmett Everett's case and nine counts of conspiracy to

commit second-degree murder, one for each of the LifeCare patients.142 The grand jurors were

asked to decide whether the evidence they hear persuaded them that Pou had “specific intent to

kill” - part of Louisiana's definition of second-degree murder.xii, 143 As defined by statute,

“Specific criminal intent is that state of mind which exists when the circumstances indicate that

the offender actively desired the prescribed criminal consequences to follow his act or failure to

act.”144 Thus, to convict Dr. Pou, the prosecution had to prove beyond a reasonable doubt that

she actively desired to kill her patients.

On July 24, 2007, Judge Calvin Johnson read aloud the ten counts - the grand jury did not

indict Dr. Pou on a single one.145

Dr. Anna Pou's Suits

Dr. Pou filed two lawsuits as a result of the ordeal. The first was against the Louisiana

Office of Risk Management and demanded the agency provide her with a legal defense against

the three pending civil lawsuits.146 “The State of Louisiana abandoned Dr. Pou and others

during Hurricane Katrina and now she is being abandoned again by the state's denial of a civil

xii In Louisiana, “second-degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1 (2007).

23

defense,” claimed Simmons.147 He believed that since Dr. Pou was a state employee, she was

entitled by law to be reimbursed her legal fees,148 amounting to more than $450,000.xiii, 149

Louisiana law allows state workers to be reimbursed for legal expenses incurred due to actions

they took as part of their official duties if they are ultimately exonerated.150 Dr. Pou qualified as

a state employee because she, at the time of Katrina, worked for the Louisiana State University

Health Sciences Center.151

The second of Dr. Pou's lawsuits was filed against Foti, essentially accusing him of

playing politics with her life in hopes to be re-elected. “It is in the interest of the State of

Louisiana, through its chief law enforcement official, to shift the blame to Dr. Pou and other

medical professionals thus limiting the state's exposure and raising an obvious conflict of interest

between the Attorney General's Office and Dr. Pou,” wrote Simmons on behalf of the doctor,

“The Attorney General himself has political interest in the indictment of Dr. Pou based upon the

controversy stirred by his own improper and unethical activities in arresting Dr. Pou.”152

The Media Frenzy Regarding Confidential Records

After the grand jury failed to indict Dr. Pou, multiple media organizations filed public

records requests to access Foti's investigative materials and medical records of patients at

Memorial. Media outlets continued to pursue Dr. Pou, Richard Simmons, and other doctors and

nurses and Memorial Medical Center over access the private medical records.

In September 2007, Judge Donald Johnson, a state district judge in Baton Rouge, ordered

the release of all documents. Judge Johnson did not allow public access to all the records related

to the case, and delayed his ruling for 30 days, allowing for an inevitable appeal to the 1st Circuit

xiii On July 1, 2009, the House Committee of Appropriations passed House Bill 341. As recommended by the Attorney Fee Review Board, Louisiana paid $312,128 to the LSU Health Network, and $144,852 to the Dr. Anna Pou Defense Fund. The fees covered legal costs incurred between the time of Dr. Pou's arrest through the grand jury's investigation, not the $250,000 in legal fees incurred before her arrest and after grand jury declined indictment. (H. Comm. Appropriations B. 341, Reg. Sess. (La. 2009).)

24

Court of Appeals and eventually the Louisiana Supreme Court.153

Attorneys for Memorial employees appealed the decision, saying it violated the privacy

of people who willingly gave Foti's investigators interviews that were expected to remain

confidential.154 State public records law shields records from view when criminal litigation is

pending or "reasonably anticipated" until the case is over.155

The 1st Circuit Court of Appeals decision, which was signed by four of the seven judges

on the panel, said the files in the Memorial case would not become public. The court ruled that

the media organizations would not have access to the documents because there is no statute of

limitations on murder, and a prosecution could reasonably begin at any time.156

On October 13, 2008, the Louisiana Supreme Court heard oral arguments from CNN's

lawyers and representatives of the New Orleans Times Picayune regarding their right to access

the records.157 A ruling in their favor would open thousands of pages of highly personal

medical records and as yet unsubstantiated statements supposedly collected by investigators for

Foti as he sought, without success, to build his case against Dr. Pou and her colleagues.158 The

Supreme Court found the current record to be “insufficient” to determine whether anyone is

likely to face charges for their actions at Memorial. The Court subsequently ordered Judge

Johnson to hold a hearing to determine whether future prosecution was “reasonably anticipated”

as opposed to theoretically possible, his decision is still pending.159

Pou's Advocacy

The debate among medical professionals regarding the best way to handle disasters is

intensifying, with Dr. Pou often at the center. She strongly advocated for changes in Louisiana

laws to shield health care workers from civil and criminal liability in disaster times. With her

help, three laws have passed to help aid future healthcare professionals during a declared natural

25

disaster.

Senate Bill 330

This bill amends the Good Samaritan Statute and is applicable only during declared

natural disasters. The law protects healthcare professionals under the Good Samaritan Statute

regardless of whether or not they were compensated for their work. This is an important change

to the statute, as most healthcare professions are deemed as “employees” during a disaster.

Under the original statute, civil protection was offered only if the services were “gratuitous,” or

uncompensated / volunteered. In addition, the measure protects medical personnel from “simple

negligence” and only allows liability for “gross negligence” or “willful misconduct.”160

Senate Bill 330 is the first of its kind in the United States. The unamended Good

Samaritan Statute attempts to encourage voluntarism by medical personnel during emergencies.

The statute recognizes the self-sacrifice by medical personnel in remaining “in harm's way”

during disasters and protects them from frivolous litigation claims.161

The bill was approved by the Senate by a vote 38-0, and passed in the House of

Representatives by a vote of 94-0.

Senate Bill 301

During disasters, “reverse triage” protocols are often put into use. This plan allows for

those patients not expected to survive to be at the bottom of the “priority list” for evacuation.

Many doctors and nurses who stayed to serve during Hurricane Katrina have faced (or are

currently facing) civil lawsuits for patient deaths that occurred while waiting for evacuations.162

Senate Bill 301 gives immunity for simple and gross negligence by doctors and nurses,

thereby protecting them from civil damage to patients as a result of the evacuation or treatment

(as well as failed evacuation or treatment) at the direction of the military or government in

26

accordance with “disaster medicine” protocols.163

For the first time, a state statute defines disaster medicine as “patient care” under

circumstances when the number of patients exceeds normal medical capacities. The statute

recognizes that medical personnel should not bear civil liability for such disastrous situations

unless involved in intentional misconduct.164

Senate Bill 301 passed in the Senate by a vote 38-0 and in the House of Representatives

by 97-0.

House Bill 1379

This bill sets up a unique “Disaster Medicine Review Panel” concept to examine

“medical judgment” during declared disaster times. The important features of this, which are

first in our country's history, include:

• An independent medical panel consisting of three members: the Coroner, a member of the

medical community, and a disaster medicine expert appointed by the Governor. The panel

will render an independent opinion regarding medical judgment. The panel must rest its

opinion on scientifically reliable evidence which may help all parties avoid a lengthy Grand

Jury process where there is no forensic basis for prosecution.

• The prosecuting authority will refrain from arresting medical personnel until the opinion is

rendered, unless the medical personnel is deemed a flight risk.

• The panel review process is advisory and allows an opportunity for respondent personnel to

provide input.

• The standard of care of medical personnel is established as “good faith medical judgment”

given the disastrous circumstances under which the judgment was rendered.165

House Bill 1379 was passed by the House of Representative by a vote 102-0. It was

27

approved by the Senate at 38-0. xiv

By signing these three Acts of the Legislature, Louisiana is at the forefront of reform in

natural disaster medicine. Supporters of these bills believe they could become a model for other

states considering similar action across the country. “It is only fitting that Louisiana took the

unprecedented step of righting the wrongs that were done to medical professionals and their

patients during and after Hurricane Katrina, and to call national attention to the need for

sweeping reform and protections,” said Dr. Pou.166 “Throughout the whole ordeal, I talked about

wanting something good to come out of it... I think what happened to the three of us could really

hurt volunteering across the nation. People all across the country told me they would worry

about stepping in during a disaster, worry about what they might face.”167

Dr. Pou strongly urges states across the nation to enact similar statutes. The measures go

into effect with any declared disaster, “It's not just hurricanes, but floods, tornadoes, or terrorist

attacks... Most disaster planners agree it's not a case if something like that will happen, but

when.”xv, 168

xiv Originally the House Bill 1379 was proposed as House Bill 838. The early version mandated the panel's evaluations, but was opposed by the District Attorney Association because they felt it infringed on their right to bring charges. House Speaker Jim Tucker amended the bill to make the panel's opinion advisory. The new bill relieved the District Attorneys' fear and was supported by the Association. (Ed Anderson, Medical Review Panel in Disasters Backed, NEW ORLEANS TIMES-PICAYUNE, May 15, 2008, at 1.)

xv Emphasis added.28

1 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 1.2 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 4.3 Anne Rochelle Konigsmark, Louisiana Affidavit Describes Alleged 'Mercy Killings': State Accuses 3 of Taking 'Law into

Their Own Hands,' USA Today, July 19, 2006, at 3A.4 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 3.5 60 Minutes (CBS television broadcast September 24, 2006).6 Robert Leben, CU-Boulder Researchers Chart Katrina's Growth in Gulf of Mexico. UNIVERSITY OF COLORADO NEWS

SERVICES, September 15, 2005, at 1.7 “Congressional Reports: S. Rpt. 109-322 – Hurricane Katrina: A Nation Still Unprepared.” Gpoaccess.gov. Retrieved

2009-10-05.8 Bruce Nolan, Katrina Takes Aim, NEW ORLEANS TIMES PICAYUNE, August 28, 2005, at 1.9 Governor: Evacuate Superdome, Rescue Centers (Fox News Broadcast August 20, 3005).10 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 2.11 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 3.12 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 3.13 Stephen Barr, Coast Guard's Response to Katrina a Silver Lining in the Storm. WASHINGTON POST. September 5, 2005, at

1.14 Dan D. Swenson, Flash Flood: Hurricane Katrin'as Inundation of New Orleans, NEW ORLEANS TIMES PICAYUNE, August

29, 2005, at 2.15 David Walker, Blanco Says Evacuation Buses on the Way to N.O., NEW ORLEANS TIMES PICAYUNE, August 30, 2005.16 John McQuaid, Anatomy of a Disaster, NEWHOUSE NEWS SERVICES, September 8, 2005.17 Julie Scelfo. A Doctor Says She Didn't Murder Her Patients, NEWSWEEK, September 3, 2007, at 1.18 Interview by Morley Safer with Dr. Anna Pou, CBS Broadcast 60 Minutes, September 24, 2006. Transcript accessed at

http://www.cbsnews.com/stories/2006/09/21/60minutes/main2030603.shtml/ last accessed on November 22, 2009.19 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 3.20 Susan Okie, Dr. Pou and the Hurricane – Implications for Patient Care During Disasters, 358 THE NEW ENGLAND

JOURNAL OF MEDICINE , 1 (2008).21 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 3.22 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 3.23 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 4.24 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 4.25 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 4.26 Joseph B. Treaster, Rescuers Search for Survivors as Higher Death Tolls are Feared, N.Y TIMES, August 30, 2005, at 1.27 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 4.28 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 4.29 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 4.30 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 5.31 Bush Meets with Disaster Relief Task Force in D.C. (Fox News broadcast September 1, 2005).32 Joseph B. Treaster, Rescuers Search for Survivors as Higher Death Tolls are Feared, N.Y TIMES, August 30, 2005, at 2.33 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 5.34 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 5.35 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 5.36 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 6.37 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 6.38 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 7.39 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.40 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.41 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.42 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.43 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.44 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.45 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.46 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 8.47 Julie Scelfo, A Doctor Says She Didn't Murder Her Patients, NEWSWEEK, September 3, 2007, at 2.48 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 10.49 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 10.

50 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 10.51 Julie Scelfo, A Doctor Says She Didn't Murder Her Patients, NEWSWEEK, September 3, 2007, at 2.52 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 10.53 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 11.54 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 11.55 Anne Rochelle Konigsmark, Louisiana Affidavit Describes Alleged 'Mercy Killings': State Accuses 3 of Taking 'Law into

Their Own Hands,' USA Today, July 19, 2006, at 3A56 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 11.57 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 11.58 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 12.59 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 13.60 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 13.61 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 13.62 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 13.63 Drew Griffin and Kathleen Johnson, Katrina Investigation Focuses on More Than One Person, available at

http://www.cnn.com/2005/us/12/21/katrina.hospital/index.html/ last accessed on November 22, 2009.64 Drew Griffin and Kathleen Johnson, Katrina Investigation Focuses on More Than One Person, available at

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JOURNAL OF MEDICINE , 3 (2008).94 Letter from Dr. Michael M. Baden, Forensic Pathologist, to Dr. Frank Minyard, Orleans Parish Coroner (October 2,

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95 Letter from Dr. James Young, Chief Coroner of the Province of Ontario, Canada / Physician, to New Orleans Coroner's Office (October 3, 2006). (Accessed at http://i.a.cnn.net/cbb/2007/images/08/27/memorial.medical.center.pdf/ last accessed on November 20, 2009).

96 Letter from Dr. James Young, Chief Coroner of the Province of Ontario, Canada / Physician, to New Orleans Coroner's Office (October 3, 2006). (Accessed at http://i.a.cnn.net/cbb/2007/images/08/27/memorial.medical.center.pdf/ last

accessed on November 20, 2009).97 Letter from Dr. Frank Brescia, Oncologist and Palliative Care Specialist, to Dr. Frank Minyard, Orleans Parish Coroner

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98 Bob Meadows, Mercy – or Murder? A Doctor and Two Nurses in New Orleans Are Accused of Killing Four of Their Elderly Patients in the Dark Days After Hurricane Katrina, PEOPLE, August 7, 2006.

99 Letter from Dr. Dyril Wecht, Forensic Pathologist, to Arthur Schafer, Esquire (October 3, 2006). (Accessed at http://i.a.cnn.net/cbb/2007/images/08/27/memorial.medical.center.pdf/ last accessed on November 20, 2009).

100 Interview by Dr. Charles I. Lugosi with Dr. Cyril Wecht, Esquire, October 20, 2006.101 Michelle Roberts, Doctor in Katrina Case Reassigned, SIGN ON SAN DIEGO, July 20, 2006.102 Michelle Roberts, Doctor in Katrina Case Reassigned, SIGN ON SAN DIEGO, July 20, 2006.103 Inteview by Dr. Charles I. Lugosi with Charles C. Foti, Jr., Attorney General, State of Louisiana, July 20, 2006.104 Michelle Roberts, Doctor in Katrina Case Reassigned, SIGN ON SAN DIEGO, July 20, 2006.105 Michelle Roberts, Louisiana Kin Suspicious About Hospital Deaths, Start-Telegram.com, available at

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patients' charts to indicate consent.111 Affidavit, State of Louisiana v. Pou, Budo and Landry, available at

http://news.findlaw.com/hdocs/docs/katrina/lapoui706wrnt.html/ (last visited November 22, 2009).112 Interview by Dr. Charles I. Lugosi with Dr. Cyril Wecht, Esquire, October 20, 2006.113 Adam Nossiter, Patient Deaths in New Orleans Bring Arrests, N.Y. TIMES,July 19, 2006, at B1.114 Affidavit, State of Louisiana v. Pou, Budo and Landry, available at

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117 KevinMD.com : http://www.kevinmd.com/blog/2006/07/dr-anna-pou-hurricane-katrina-and.html/ last accessed on November 22, 2009.

118 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 17.119 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 17.120 Interview with Charles F. Foti, Louisiana Attorney General, in New Orleans, Louisiana. (July 18, 2007). (Accessed at

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124 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 17.125 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 17.126 Kevin Featherly, The Fine Line Between Mercy and Murder, Louisiana Super Lawyers, January 2009, accessed at

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127 Kevin Featherly, The Fine Line Between Mercy and Murder, Louisiana Super Lawyers, January 2009, accessed at http://www.superlawyers.com/louisiana/article/the-fine-line-between-mercy-and-murder/77970b3-fbc5-485b-9e78-864512bb5f87.html/ last accessed on November 19, 2009.

128 Kevin Featherly, The Fine Line Between Mercy and Murder, Louisiana Super Lawyers, January 2009, accessed at http://www.superlawyers.com/louisiana/article/the-fine-line-between-mercy-and-murder/77970b3-fbc5-485b-9e78-864512bb5f87.html/ last accessed on November 19, 2009.

129 Interview by Morley Safer with Dr. Anna Pou, CBS Broadcast 60 Minutes, September 24, 2006. Transcript accessed at http://www.cbsnews.com/stories/2006/09/21/60minutes/main2030603.shtml/ last accessed on November 22, 2009.

130 Interview by Morley Safer with Dr. Anna Pou, CBS Broadcast 60 Minutes, September 24, 2006. Transcript accessed at http://www.cbsnews.com/stories/2006/09/21/60minutes/main2030603.shtml/ last accessed on November 22, 2009.

131 Interview by Morley Safer with Dr. Anna Pou, CBS Broadcast 60 Minutes, September 24, 2006. Transcript accessed at http://www.cbsnews.com/stories/2006/09/21/60minutes/main2030603.shtml/ last accessed on November 22, 2009.

132 Floyd A. Buras, Statement Regarding Dr. Anna Pou, accessed at http://www.lsms.org/LSMS%20stmt%on%20Anna%20Pou.pdf/ last accessed on November 1, 2009.

133 Advertisement from Baton Rouge Eat, Nose & Throat Society, The Advocate, July 27, 2006, at A18. (emphasis is original)

134 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 20.135 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 20.136 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 20.137 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 20.138 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 21.139 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 21.140 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 21.141 Frank W. Dawkins, J.D., LL.M. candidate, Good Samaritans or Mercy Killers: And Never the 'Twain Shall

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142 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 21.143 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 21.144 La. R.S. 14:30.1. This note relies on the Louisiana definition of intent.145 Sheri Fink, Strained by Katrina, a Hospital Faced Deadly Choices, N.Y. TIMES, August 20, 2009, at 21.146 Gwen Filosa, Foti Sued by Doctor Accused in Memorial Hospital Deaths, NEW ORLEANS TIMES PICAYUNE, July 16, 2007,

at 1.147 Gwen Filosa, Foti Sued by Doctor Accused in Memorial Hospital Deaths, NEW ORLEANS TIMES PICAYUNE, July 16, 2007,

at 1.148 The Associated Press, Louisiana: Doctor Wants Legal Fees Paid, THE ASSOCIATED PRESS, February 11, 2009.149 Jan Moller, Panel Recommends Paying Dr. Anna Pou's Legal Fees, NEW ORLEANS TIMES PICAYUNE, MARCH 18, 2009, at 1.150 The Associated Press, Louisiana: Doctor Wants Legal Fees Paid, THE ASSOCIATED PRESS, February 11, 2009.151 Jan Moller, Panel Recommends Paying Dr. Anna Pou's Legal Fees, NEW ORLEANS TIMES PICAYUNE, MARCH 18, 2009, at 1.152 Gwen Filosa, Foti Sued by Doctor Accused in Memorial Hospital Deaths, NEW ORLEANS TIMES PICAYUNE, July 16, 2007,

at 1.153 Bill Barrow, Judge Says Memorial Records Should Be Public, NEW ORLEANS TIMES PICAYUNE, September 20, 2007, at 1.154 Laura Maggi, High Court Considers Making Public Records of Memorial Medical Center Deaths During Katrina, NEW

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ORLEANS TIMES PICAYUNE, October 13, 2008.160 La. R.S. 37:1731.1 (2009).161 La. R.S. 37:1731.1 (2009).162 La. R.S. 29:735.3 (2009).163 La. R.S. 29:735.3 (2009).164 La. R.S. 29:735.3 (2009).165 La. R.S. 29:735.3 (2009). La. R.S. 40:1299.39.3 (2009).166 Mary Foster, New Legislation Pleases Doctor Accused of Murder, The Committee for Disaster Medicine Reform at

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