Facing South

Trial to open in lawsuit connected to hospital deaths after Katrina


By Sheri Fink, ProPublica, co-published with the New York Times

A jury trial set to open today will weigh whether one of America's
largest health care corporations should be held accountable for deaths
and injuries at a New Orleans hospital marooned by floodwaters after
Hurricane Katrina.

The class-action suit is expected to highlight desperate e-mail
exchanges, not previously made public, between the hospital and its
corporate parent.

"Are you telling us we are on our own and you cannot help?" Sandra
Cordray, a communications manager at Memorial Medical Center, which
sheltered some 1,800 people, wrote to officials at the Tenet Healthcare
Corporation's Dallas headquarters after begging them for supplies and an

The suit, brought on behalf of people who were at the hospital during
the disaster, alleges that insufficiencies in Memorial's backup
electrical system and failed plans for patient care and evacuation,
among other factors, caused personal injury and death.

The complaint also focuses attention on the lack of comprehensive
emergency preparedness requirements for the nation's hospitals. Proposed
regulations aimed at addressing "systemic gaps" identified after
Katrina were scheduled for release by the federal Centers for Medicare
and Medicaid Services in January, but have been delayed. President
Obama's budget proposal trims spending on a national hospital
preparedness program by $42 million, or about 10 percent from current

The bodies of 45 patients were discovered
at Memorial Medical Center after the August 2005 storm, far more than
at any other hospital, and some doctors subsequently acknowledged that
they had injected patients with drugs to hasten their deaths. No
criminal charges were brought. Last year, a relative of a patient who
died filed a civil claim of euthanasia against a Memorial doctor. It was
dismissed and is on appeal.

Staff members at Memorial said they did their best in the face of inhuman conditions.

"The doctors didn't create that environment. The hospital created that
environment," said Joseph M. Bruno, one of the lead lawyers for the
class-action plaintiffs. He said no physicians had opted out of the
class and some might testify at trial in New Orleans.

The hospital and Tenet deny the allegations.

"We are confident that in the end, the evidence will show that Memorial
Medical Center and its staff and physicians acted heroically in the face
of such a tragic situation," Rick Black, Tenet's director of
communications, said in a statement.

Lawyers for Tenet and Memorial have lined up experts to testify that the
city's failed levees, a chaotic government response and the huge
hurricane are what created the deadly environment. Plaintiffs' lawyers
have moved to exclude all such evidence from consideration, arguing that
it is irrelevant to the duty the hospital had to its patients.

One issue almost certain to figure in the trial is the extent to which
executives at Memorial and other hospitals understood the possible
dangers of flooding. It has been previously reported that Memorial did
not act on a 2004 recommendation to move components of its electrical
system above the ground floor. New documents raise questions about
whether design, maintenance or other factors led to the total failure of
backup power after the floodwaters rose.

Even before all power was lost, Memorial's air-conditioning shut down,
by design. American hospitals are required to maintain emergency power
systems, but they do not have to support air-conditioning or heating.

According to employees, temperatures inside Memorial soon rose to over
100 degrees, threatening older patients in particular. Among them was
70-year-old Leon Preston, an amputee who died at Memorial and whose
family's case is part of the lawsuit.

Memorial's hurricane plan assumed that backup power would function for a
minimum of three days, but the system failed in less than two.

At least some hospital employees were aware that the system would be at
risk in a flood. Memorial's director of plant operations learned from
the Army Corps of Engineers in 2004 that the hospital could be
surrounded by 12 to 15 feet of water after a major hurricane. The
director, Eric Yancovich, who also served as safety officer, recommended
raising basement and ground-level emergency power transfer switches and
the pumps that supplied most of the hospital with medical air and
vacuum suction -- needed by patients with respiratory problems

A partial bid for the electrical work came to more than a quarter of a
million dollars. "Due to the lack of capital, I don't anticipate
anything being approved right now," Mr. Yancovich concluded in a memo to
his supervisor. "I'll keep it on file for future consideration."

Given these vulnerabilities, the hospital should have warned patients
and visitors away before the hurricane, according to Mr. Bruno, the
plaintiffs' lawyer. "Fundamentally, they could have told their patients:
'It's not safe for you. Go.'"

The New Orleans mayor's pre-storm evacuation order for Katrina
specifically exempted hospitals, even though a 2002 poll by the city's
health director revealed deficiencies in generators and evacuation plans
for flooding. Hospital evacuations are costly and risky, and hurricanes
often change course. According to the minutes of a statewide hospital
emergency conference call held the day before landfall, nearly all
hospitals had either generators, electrical switches or both at ground
level, yet they chose not to evacuate.

An expert hired by the plaintiffs, Jerry Watts, concluded that the
floodwaters shorted out Memorial's electrical transfer switches and many
distribution panels, much as the plant operations director had
predicted. However, Gregory Gehrt of ccrd Partners, an expert hired by
Tenet, attributed the power shutdown to mechanical problems in the
hospital's three 750-kilowatt diesel generators, which were located well
above the water.

Codes and standards require only that potential for flooding be given
"careful consideration" in electrical-system design. Hospital generators
must be tested monthly, but for short periods, unlike what would be
needed in a major disaster.

A central question likely to be raised at trial is why Tenet did not try
to hire private helicopters immediately after Ms. Cordray's call for
help. A vice president of the Federation of American Hospitals
also appealed to Tenet for medevac resources that day, saying that
Senator Mary Landrieu's office was "begging us to help them fill in
emergency rescue gaps in Louisiana."

Tenet officials have said publicly that they did not hire private
helicopters until the following day, after emergency officials told them
that Memorial was low on the state's evacuation priority list and that
they would need to use private resources to get patients out quickly.
Before that, they said, emergency officials told Tenet that Federal
Emergency Management Agency and National Guard troops were coordinating
hospital evacuations, and that it would not be possible to get into the

Tenet corporate headquarters did not have an emergency command system in
place and established one as the disaster unfolded. Company officials
lobbied hard to get federal rescuers to prioritize Memorial, warning
that dozens of patients were in danger of dying. Ultimately, the company
spent more than $1 million on airplanes, buses, ambulances and security
personnel to support its six hospitals in the region, a portion of
which was later recovered from insurance.

The Tenet Healthcare Corporation has since sold Memorial and its other
Louisiana hospitals. Tenet bills itself as one of the largest publicly
owned health care companies in the country, listing operating revenues
of $9.2 billion in 2010. Tenet's 49 hospitals in 11 states counted more
than a half-million patient admissions that year, and its outpatient
centers treated nearly four million. Tenet's corporate structure
includes more than 400 subsidiaries.

Claims were also made against Lifecare, a separate health care company
that leased space at Memorial to operate a long-term acute-care
hospital, many of whose patients died awaiting evacuation. It reached
confidential settlements with all but one plaintiff and is not a
defendant in the class-action suit.

(Photo of Memorial Medical Center after Katrina by Infrogmation via Wikipedia.) 


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