Archive for August 11th, 2007

Who cares for the welfare of the elderly of Louisiana?

August 11, 2007

Cheryl Martin, God Bless You!

Article(s) to read first:  Levees-Lawsuits and especially one from Victor Hull at St. Pete Beach, “Care facilities lack buses for evacuation”

“… Representatives from Louisiana, Alabama, Georgia and other states agreed. They also cited communicating after a disaster, when cell phones and land lines typically fail, and deciding when to call for evacuations as other major hurricane challenges facing nursing homes..”

Find Law for Corporate Counsel reported on Friday, August 10, 2007 concerning Lafon Nursing Home. It was the first article I’ve found on Lafon.

Katrina Suit Defendant Must Disclose Nursing Home Residents’ Info

By KEVIN MCVEIGH, ESQ., Andrews Publications Staff Writer
The owner of a New Orleans nursing home sued over the deaths of 22 residents during Hurricane Katrina’s aftermath must disclose the names and home addresses of all people who were living there when the storm hit, a federal judge has ruled.

U.S. District Judge Lance M. Africk ruled that disclosure of the residents’ identities does not violate Louisiana’s health care provider-patient privilege, because the information is necessary to determine whether the federal courts may continue to exercise jurisdiction over the class-action lawsuit against the Lafon Nursing Home of the Holy Family. Cheryl Martin, who filed the suit, said she will use the information to show that more than two-thirds of the surviving residents and victims’ families are Louisiana citizens, thus making the case a “local controversy” over which Judge Africk may decline jurisdiction under the federal Class Action Fairness Act.

Martin’s mother, Ida Antoine, was one of 22 residents who died at Lafon in the days following Katrina.

Lafon, a Roman Catholic facility run by the Sisters of the Holy Family in eastern New Orleans, housed 130 elderly residents in 81 rooms at the time of the hurricane, according to the Washington Post.

Martin filed suit July 20, 2006, in the Orleans Parish Civil District Court, seeking to represent a class consisting of all facility residents and visitors who suffered injury or died as a result of conditions at the home during and after Katrina.

She alleges that Lafon failed to evacuate the residents before the storm hit and disregarding warnings and the mandatory evacuation order New Orleans Mayor Ray Nagin issued Aug. 27, 2005.

The storm hit two days later and cut the facility’s electrical power, which combined with the extreme heat to cause “unreasonably dangerous conditions” at the home, the suit says.

Lafon removed the case to the U.S. District Court for the Eastern District of Louisiana in August 2006 based on the Class Action Fairness Act.

The 2005 law provides federal courts with original jurisdiction over all class actions in which the amount in controversy exceeds $5 million and at least one class member lives in a different state from the defendant.

Martin asked the court to return the case to the Louisiana state court, citing the law’s “local controversy” exception.

In January Judge Africk refused to remand the case, ruling that Martin had failed to provide any evidence that two-thirds of the proposed class members are Louisiana citizens, as required by the exception.

However, he said Martin could refile her motion once she conducted discovery of the class members’ domicile.

Martin served Lafon with discovery requests seeking the identities and addresses of all potential class members. Lafon responded that the information was privileged.

In May Magistrate Judge Karen Wells Roby ordered an alternative to discovery under which Lafon will submit names, addresses and next-of-kin information to the court, and the court will send questionnaires to potential class members.

The court will then review the results to determine the class members’ domicile.

Lafon filed a motion to set aside the order, arguing that Judge Roby refused to apply Louisiana’s health care provider-patient privilege, which expressly prohibits the disclosure of the private information of patients not involved in the litigation.

Lafon argued that the state privilege is applicable since the case involves only state law negligence claims.

Judge Africk agreed that the magistrate erred by not applying the state health care provider-patient privilege. However, he said the state privilege does not bar discovery of medical records in cases where courts determine that the interests of justice are served by the records’ release.

Any exception to the privilege should be narrowly tailored and should extend only to necessary and relevant information, the judge said.

He found that disclosure of residents’ identifying information is necessary to determine the jurisdiction issue and for Martin to fulfill her duties as lead plaintiff by notifying all potential class members.

“Releasing this information presents a de minimis intrusion into the patients’ privacy, which is offset by the potential benefit that plaintiff’s lawsuit may provide,” Judge Africk wrote.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.


Martin et al. v. Lafon Nursing Facility of the Holy Family Inc., No. 06-5108, 2007 WL 2228633 (E.D. La. July 31, 2007).
Nursing Home Litigation Reporter
Volume 10, Issue 04
08/10/2007
Copyright 2007
West, a Thomson business. All Rights Reserved.

See Also: Martin et al. v. Lafon Nursing Facility of the Holy Family Inc., No. 06-5108, 2007 WL 2228633 (E.D. La. July 31, 2007).
Nursing Home Litigation Reporter
Volume 10, Issue 04
08/10/2007
http://west.thomson.com/product/40211158/product.asp

The Fight Moves Forward!

And from Atlanta Daily Report there is news about St. Rita’s.

Monday, August 13, 2007
Couple faces trial in wake of Katrina
Nursing home owners accused of negligent homicide, cruelty to elderly after flooding leaves residents dead

TWO YEARS AFTER Hurricane Katrina killed more than 1,400 people, the only individuals charged with any of those deaths will go on trial Monday.

Salvador and Mabel Mangano, owners of St. Rita’s Nursing Home in St. Bernard Parish, where flood waters left the dead amid mud and wheelchairs, are accused of 35 counts of negligent homicide and 24 counts of cruelty to the elderly or infirm.

The combined maximum sentence for each defendant would be 415 years in prison. The trial is expected to last at least three weeks.

The trial was moved to St. Francisville, about 100 miles northwest of New Orleans. Prosecutors, defense lawyers and state District Judge Jerome Winsberg agreed that assembling a jury would be difficult in St. Bernard. The New Orleans suburb was devastated when Katrina struck Aug. 29, 2005 and its population has been slow to return. Only six jurors are required but their verdict must be unanimous.

Prosecutors charge the Manganos’ refusal to evacuate St. Rita’s residents before the storm was a criminal act.

A mandatory evacuation order was issued the day before Katrina hit. Forecasters had predicted a 21-foot storm surge would hit St. Bernard. Of five nursing homes in the parish, only St. Rita’s was not evacuated.

St. Rita’s has been closed since Katrina and the Manganos say they have no plan to reopen the nursing home.

Speaking before Winsberg imposed a gag order, Jim Cobb, lawyer for the Manganos, said state law did not require nursing homes to comply with mandatory evacuation orders. A report compiled by the Louisiana Nursing Home Association, a trade group, showed 36 of 57 nursing homes in the New Orleans area were not evacuated as Katrina approached.

St. Rita’s was built 20 years ago, and the location had not flooded since. However, during that period no hurricane even close to Katrina’s strength had made landfall in the parish, which is ringed by waterways connected to the Gulf of Mexico.

The Manganos say the area didn’t even flood when Hurricane Betsy struck in 1965.

That history, they say, was the basis for their decision to ride out Katrina in the one-story building rather than evacuate, Cobb said.

“We’re talking frail people, people with special needs, people who would be at risk during an evacuation,” Cobb said. “The Manganos thought they were saving lives by sheltering in place.”

The couple, in their 60s, was so certain St. Rita’s was safe that they invited relatives, staffers and others to shelter there. About 30 people, including the Mangano’s children, accepted the offer, the Manganos say.

As the storm subsided, it appeared St. Rita’s was safe—the roof was tight, the parking lot was dry. But broken levees soon brought a torrent of water that over a 20-minute period flooded the building almost to the ceiling.

The Manganos and staff managed to rescue about 28 patients, floating some out windows to save them. Other rescuers arrived later that day but the bodies remained in the building for up to 10 days. No one other than patients died at St. Rita’s.

The defense contends that because of government negligence, including faulty levees that broke during Katrina, the Manganos could not have known about the potential for flooding in advance.

Among the witnesses defense attorneys have subpoenaed are Gov. Kathleen Blanco and Lt. Gen. Carl Strock, head of the Army Corps of Engineers, which was responsible for the levees. Strock has since retired.

The defense wants Strock to repeat his statement at a news conference in June 2006 that defective levee design was the corps’ fault and caused most of the flooding. The federal government is fighting his subpoena.

Blanco and other public officials failed to organize an effective evacuation and help transport “at risk” people to high ground as required by state law, according to the defense.

In court filings, defense lawyers say responsibility for the tragedy can’t be determined “without evidence that the state and local authorities failed their duties.”

The Manganos sued the government this summer, saying federal, state and local officials failed to keep residents safe and evacuate vulnerable citizens as the storm approached. If the levees had not failed, they claim, the St. Rita’s residents would have been safe.

More than 30 lawsuits have been filed against the couple by patients injured at the nursing home and the families of people who died there.

The only other criminal charges connected to Katrina deaths are against six former or current New Orleans police officers who face murder or attempted murder charges from a shooting after the storm. But the is not tied to flooding or direct impact of Katrina.

At least 34 people died at Memorial Medical Center in Uptown New Orleans after the hurricane, but three women arrested by the attorney general’s office will not stand trial. A grand jury refused to indict Dr. Anna Pou. Charges against nurses Lori Budo and Cheri Landry were dropped.

Twenty-two people died at Lafon Nursing Home, a facility run by nuns of the Holy Family order in eastern New Orleans. Residents were moved to the second floor as flooding began, but the home lost electricity. Rescuers did not arrive at Lafon until Sept. 1 amid a heat wave that had gripped the city.

Attorney General Charles Foti investigated the deaths at Memorial Medical Center, St. Rita’s and LaFon. The results of the LaFon investigation were turned over to the New Orleans district attorney a year ago but no action has been taken. A spokesman for District Attorney Eddie Jordan said the case remains under investigation.