[StBernard] Nursing home operators fight back

[Westley Annis]

Nursing home operators fight back
They petition to add public officials to suit 
Wednesday, September 06, 2006
By Laura Maggi
Staff writer 

In an effort to shift blame for the deaths of 35 residents of St. Rita's
Nursing Home in St. Bernard Parish during Hurricane Katrina, its owners have
filed a legal demand seeking to have a judge name a slew of public officials
and agencies, including Gov. Kathleen Blanco and the Army Corps of
Engineers, as co-defendants in a civil lawsuit pending against the facility.


Known as a third-party demand, the request, if allowed by a judge, could
result in a decision that other defendants are liable for the deaths, either
in whole or in part, and thus for damages awarded in the case, said James
Cobb, attorney for St. Rita's owners, Salvador Mangano and Mabel Mangano. 

In addition to the more than 50 civil lawsuits pending against them, the
Manganos could face criminal prosecution by state Attorney General Charles
Foti. At a Tuesday news conference, Cobb said the Manganos, who ran the
nursing home for 20 years, had a reasonable expectation that they could
safely take care of their charges at the facility without risking an arduous
evacuation that itself could injure or kill their frail, elderly patients. 

"We were there for 20 years, and we never lost a resident" in a storm, Cobb
said. "We never evacuated once." 

The Manganos filed the demand last week in the 34th Judicial District Court
in Chalmette. Some of the 51 suits counted by the St. Bernard clerk's office
are personal injury claims brought by residents themselves, while others are
wrongful death lawsuits by family members of those who perished as
floodwaters inundated St. Rita's. 


Recovery slows probe 

Cobb's offensive came as a spokeswoman for the state Attorney General
Charles Foti's office said he was nearly prepared to bring a case against
the Manganos to a grand jury, almost a year after they were booked on 34
counts of negligent homicide. The Manganos were arrested in the deaths of 34
people, but Cobb said the body of another presumed former resident has since
been found, bringing the death toll at the facility to 35. 

In public statements after the Manganos' arrest in September, Foti
forcefully made a case against the nursing home owners, who are in their
60s. He said they not only didn't follow their own hurricane evacuation
plan, which they were required to file with the local Office of Emergency
Preparedness, but also resisted an offer of busing the day before the storm.


Kris Wartelle, a Foti spokeswoman, said the state Department of Justice has
been hampered by St. Bernard's slow recovery. The local district attorney
has recused himself from the case, Wartelle said, leaving the matter in the
hands of the agency's Medicaid Fraud Control Unit, which investigates the
abuse or neglect of elderly people in facilities that accept federal money. 

"They had to wait until St. Bernard came back. We had to have enough people
to have a grand jury," she said. 

Indictments by a grand jury would be the first step in the prosecution of
the Manganos, who have not been charged with a crime. 


Blaming government 

Cobb's complaint, which aims to make the government agencies named party to
one or all of the civil lawsuits against the Manganos, targets government at
every level, including Parish President Henry "Junior" Rodriguez for not
issuing a written mandatory evacuation order of St. Bernard Parish and
Blanco, the head of emergency response in the state of Louisiana. 

Rodriguez's assistant did not return a message requesting comment, but
documents supplied by Cobb show that there was no written mandatory
evacuation. A letter from Larry Ingargiola, director of the Office of
Homeland Security and Emergency Preparedness in St. Bernard Parish,
indicated that officials did not have time in the midst of storm
preparations to write an order, but that all notices were clearly and
repeatedly "transmitted through the local public television channels." 

A Blanco spokeswoman would not respond to the specific allegations in the
complaint, but said nursing homes are responsible for carrying out their own
evacuation plans. 

Cobb faults the state Department of Health and Hospitals, the Department of
Transportation and Development and Foti's agency for failing to help with
evacuations. 

The state health agency is not responsible for actually helping evacuate
nursing homes or other medical facilities, said Bob Johannessen, a spokesman
for the department. Wartelle and a representative of the transportation
agency declined to comment on specific allegations in the complaint. 

Before Katrina, the health agency wasn't even charged with reviewing the
homes' evacuations plans, a duty it now has because of recent state
legislation. Johannessen said the department is reviewing the emergency
plans for nursing homes in coastal parishes. 

Under the new regulations, all nursing homes will be required to move their
patients in a mandatory evacuation. 


Levees criticized 

About three pages of the 10-page complaint are dedicated to charges against
the federal government for the failure of the corps to build levees that
could withstand the storm, while another page details the faults of the Lake
Borgne Basin Levee District for not adequately maintaining the flood-control
structures. 

In the document, Cobb said, "St. Rita Nursing Home sits on what is
relatively high ground for St. Bernard Parish. Despite its elevation, on the
morning of August 29, 2005, the facility became inundated in a matter of
minutes to a depth of some six feet." 


While it was not addressed in the complaint, Cobb used his press conference
to try to blunt one of Foti's most damaging claims against his clients: that
the Manganos refused evacuation assistance from Bryan Bertucci, the coroner
of St. Bernard Parish, who has said he offered the home two buses to use for
evacuations. 

The deposition doesn't refute that claim, but Cobb pointed to separate
statements in which Bertucci said he did not order the home to evacuate. 

In another portion of the deposition, Bertucci says during questioning by
defense attorneys that evacuations can endanger nursing home patients. 

. . . . . . . 

Laura Maggi can be reached at lmaggi at timespicayune.com or (225) 342-5590.