Five Days at Memorial: Life and Death in a Storm-Ravaged Hospital (63 page)

Rick Simmons badgered the producers before the broadcast. Believing
he could not influence the script, he argued instead that the very idea of the program was insensitive, not only to Dr. Pou but also to the family members of the dead. The timing was inappropriate, airing only a little over a year after the alleged events, with a grand jury investigation about to get under way.

The producer refused to disclose the verdict, saying only that the show’s attorneys rarely lost a case. Simmons asked for a disclaimer to be broadcast in the local area to help blunt any negative effect on potential jurors.

A last-minute campaign to stop the network from airing the episode was launched by Pou supporters including Dr. Michael Ellis, an influential fellow otolaryngologist and the former president of the state medical society. Ellis attempted to rally colleagues in an interview for a Louisiana medical newsletter. He noted that public pressure had recently resulted in the cancellation of a book and a two-part television special,
O.J. Simpson: If I Did It, Here’s How It Happened
. Simpson had been arrested for the murder of his wife and her friend and acquitted in a criminal trial, but was viewed by many members of the public as responsible for the deaths.

“It’s abhorrent to all of us in the medical family that some of our most respected colleagues, well known personally to so many of us, could be so horribly and unjustly attacked in such a vicious and inappropriate manner,” Ellis said to the
Louisiana Medical News
reporter. He had taught Pou and known her since she was a child, although the article did not
mention this. “Shame on our entire legal community for allowing such a travesty to occur.”

The day before the
Boston Legal
episode was set to air, Simmons spent hours making calls and writing e-mails. On show day, he went to the local ABC station for an interview. It wasn’t until he saw the program that he learned its conclusion.

The doctor on the show—Donna, not Anna, a middle-aged white woman with the same haircut as Pou—“had five patients faced with very painful deaths if she didn’t do something,” one of her television lawyers said. “I need somebody to first establish my client as an underdog—not easy, because she’s a doctor—and then, keep her out of prison.” Just what Simmons was trying to do.

Looters had stolen drugs. Corpses were rotting. “The hospital was like a death camp.” In his closing argument, TV attorney Alan Shore claimed that New Orleans was not part of America after Katrina. Different norms applied. “During that horrendous week, the United States of America was nowhere to be found.” Only the doctor, by helping the patients go peacefully, retained her “innate sense of humanity.”

When Simmons saw the program he ripped up his copy of the unused version of the show’s ending. The jury in the television case found the doctor not guilty of first-degree murder.

After the broadcast, medical professional organizations released more statements of support for Pou and the two nurses, as if the fictional show proved their innocence.
“Their acts were those of heroism,” said the American College of Surgeons. The chairman of the department where Pou had trained, a grandfatherly man who was deeply fond of her, had written the statement. It went so far as to assert that Pou, who had voluntarily stopped performing surgery, had been denied her constitutional right to due process because she was “forbidden to practice—a situation that gives the impression that she has been deemed guilty without review of the records.”

DR. EWING COOK was elated by the
Boston Legal
episode. “Boy, that’s good for her,” he said aloud when he watched it. “I hope that’s what goes on in the grand jury in New Orleans.” The writers had captured what he felt. Nobody who was not there at Baptist could judge.

Cook was still feeling the effects of his time there. He’d had surgery, for kidney stones that he attributed to dehydration. He had tried not to drink much while at the sweltering hospital to avoid having to go to the bathroom.

Cook’s lawyer had managed to keep him out of trouble. After the subpoena, he had never been called in for an interview. Cook worked a couple of hours a day now at two rural hospitals. He and his wife had moved far west of New Orleans and 110 feet above sea level, out of range of any storm surge a hurricane might cast against the earth again.

WHILE FRANK MINYARD had commissioned many forensic reports on the Memorial dead, he lacked the views of an ethicist, someone who could situate the alleged acts of the health professionals in a panorama of history, philosophy, law, and ever-changing societal norms. This was a perspective Minyard wanted, even though his job by law was merely to decide whether the deaths were technically homicides—caused by human intervention. In advance of a grand jury, he was doing his own unnecessary, unbidden—but, he felt, vital—investigation.

Minyard reached out to the noted bioethicist Arthur Caplan, who had appeared on CNN soon after the allegations emerged and opined that a jury might consider “
very, very extenuating circumstances” a defense for mercy killing. Now Caplan reviewed the records of the nine LifeCare patients on the seventh floor and concluded that all were euthanized, and that the way the drugs were given was
“not consistent with the ethical standards of palliative care that prevail in the United States.”
Those standards make clear, Caplan wrote, that the death of a patient cannot be the goal of a doctor’s treatment.

Caplan knew that the history of thought, law, and policy on aid in dying could be arrayed along two axes. One was whether or not the patient had requested to die, making him or her either a voluntary or involuntary participant. The other was whether the aid in dying came in an active form, such as the giving of drugs, versus what was referred to as “passive” withdrawal or non-initiation of life-sustaining treatment. The poles of these two axes were known as voluntary, involuntary, active,
and passive euthanasia.

Whether killing someone who wishes to be killed is an act of mercy or an act of murder was a question that had divided humanity from ancient times, millennia before the advent of critical care medicine focused the modern mind on it. In a story related in the Bible, King Saul, injured in battle, asked his armor bearer to finish him off. He refused,
“for he was sore afraid.” Saul then fell on his own sword and called out to a passing young man,
“Stand over me and kill me! I am in the throes of death, but I’m still alive.” The young man did so and later told the story to King David, saying,
“I knew that after he had fallen he could not survive.” David condemned the young man to death for his actions.

Physician involvement in killing had also long divided opinion, back to the time of ancient Greece and Rome. Hippocrates’s thoughts eventually held sway, and many medical schools still honor his tradition by having graduating doctors swear an oath descended from the one attributed to him:
“I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan.…”

This marked an important transition in medicine. “
For the first time in our tradition there was a complete separation between killing and curing,” anthropologist Margaret Mead told the eminent psychiatrist Maurice Levine, who recounted their conversation in a widely quoted 1961 lecture reprinted in his book
Psychiatry & Ethics
. “Throughout the primitive world, the doctor and the sorcerer tended to be the same person.
He with the power to kill had power to cure, including specially the undoing of his own killing activities. He who had the power to cure would necessarily also be able to kill [….] With the Greeks the distinction was made clear. One profession, the followers of Asclepius, were to be dedicated completely to life under all circumstances, regardless of rank, age or intellect—the life of a slave, the life of the Emperor, the life of a foreign man, the life of a defective child.”

Mead added: “This is a priceless possession which we cannot afford to tarnish, but society always is attempting to make the physician into a killer—to kill the defective child at birth, to leave the sleeping pills beside the bed of the cancer patient.” Mead was convinced, Levine said, that “it is the duty of society to protect the physician from such requests.”

The Christian acceptance of mortal suffering as redemptive only solidified the Hippocratic stance. In notable historical cases even the exigencies of the battlefield could not shake doctors’ exclusive commitment to preserve life. After Napoleon Bonaparte’s troops were struck by plague in Jaffa, in May of 1799 he told his army’s chief medical officer, René-Nicolas Dufriche Desgenettes, that if he were a doctor, he’d put an end to the sufferings of the plague patients and the danger they represented to the army. He would give them an overdose of opium, a product of poppies that contains the opiate painkiller morphine. Bonaparte would, he said, want the same done for him. The doctor recalled later in his memoirs that he disagreed, in part on principle and in part because some patients survived the disease. “
My duty is to preserve life,” he wrote.

Less than two weeks later, Turkish troops closed in on their position. Bonaparte ordered that those in the hospital not strong enough to join the retreat be poisoned with laudanum, a tincture of opium. Dr. Desgenettes refused. The fifty or so patients left in the hospital, seemingly close to death, were poisoned instead by the chief pharmacist, but apparently he gave an insufficient dose.
The Turks found several alive in the hospital and protected them.

Although stories of wartime mercy killings of injured soldiers frequently
appear in fictional novels and movies, it is extremely difficult to find a real, documented
case of physician involvement. In the nineteenth century, however, a movement arose to challenge the physicians’ absolutist views on preserving life. In the United States and Europe, some non-physicians criticized doctors’ penchant for prolonging lives at all costs. They advocated using anesthetic drugs developed in the 1800s not only to ease the pain of dying but also to help it along. Known as “euthanasiasts,” these advocates called their proposal “euthanasia”—a Greek-derived term (
eu
= “good,”
thanatos
= “death”) that English-language writers had for centuries used to mean “
a soft quiet death, or an easy passage out of this world.”

Many doctors argued against the proposed use of their skills to bring about dying, fearing the public would lose trust in the profession. Allowing death to claim patients naturally struck them as far different from causing patients’ deaths.
“To surrender to superior forces is not the same thing as to lead an attack of the enemy upon one’s own friends,” editors of the
Boston Medical and Surgical Journal
opined in 1884.

Still, the movement for euthanasia grew in the United States and Europe, and it morphed. Some advocates noted the great burdens the sick, mentally ill, and dying placed on their families and society. Helping them die would be both merciful and a contribution to the greater collectivist good. Why not, some asked, extend to terminally ill people what few would deny their sick animals, regardless of whether they were capable of expressing the wish to die? These were lives not worthy of living.

These ideas found particular resonance at a time of widespread economic privation, suffering, and hunger in post–World War I Germany. Attention focused on the costs of caring for the elderly, disabled, mentally ill, and other dependent individuals, many warehoused in church-run asylums. (Also couched in terms of public health was the growing international support for eugenics—improving the gene pool of the society—and these individuals were seen as a threat to the purity and superiority of the German race.)

In an effort to save money and resources during wartime in the early 1940s, the Nazis took the ideas to their logical extreme and implemented programs of
involuntary
euthanasia of these populations. By some counts up to 200,000 people with mental illnesses or physical disabilities were executed, the Darwinian notion of survival of the fittest employed to justify the murders. After these programs were shut down, their administrators were sent to orchestrate mass killings of Jews and others in extermination camps in Poland.