[StBernard] Appeal court issues ruling in St. Rita's nursing home case

[Westley Annis]

Appeal court issues ruling in St. Rita's nursing home case
Posted by St. Bernard bureau July 12, 2007 5:24PM
By Paul Rioux 
St. Bernard bureau

The owners of a St. Bernard Parish nursing home where 35 elderly residents
drowned during Hurricane Katrina's aftermath can present evidence at their
negligent homicide trial next month that the government was responsible for
the deaths, according to a state appellate court decision upholding a ruling
by the trial judge. 


But the First Circuit Court of Appeal overturned the judge's ban on
testimony and evidence about the fate of other local nursing homes, a
double-edged sword with advantages and disadvantages for both sides in a
case that has drawn national media attention. 

Prosecutors want to focus on the other three St. Bernard nursing homes, all
of which evacuated before Katrina made landfall in late August 2005 and had
just one combined death. 

Defense attorneys say they will seek to introduce evidence that the majority
of nursing homes in the New Orleans area did not evacuate, including Lafon
Nursing Home in eastern New Orleans, where 22 residents died. No charges
have been filed in connection with the deaths at Lafon. 

The ruling released Thursday was in response to a writ filed by prosecutors
arguing that Judge Jerome Winsberg had erred in prohibiting evidence about
what happened at other nursing homes while allowing the defense to blame the
government for the tragedy. 

Jim Cobb, an attorney for St. Rita's owners Mabel and Salvador Mangano, who
are facing 35 counts of negligent homicide, said he's pleased with the
ruling to permit testimony about third-party fault. 

"It allows us to present evidence of who really was at fault for the deaths
of the poor folks at St. Rita's: The Army Corps of Engineers for the failed
levees and a host of state and local officials who botched the evacuation,"
he said. "It's a critical part of our case." 

The state Attorney Generals' Office, which is prosecuting the case, did not
return a call seeking comment Thursday afternoon. 

In a partial victory for the state, the appellate court overturned
Winsberg's blanket ban on evidence about other nursing homes, instructing
him to consider the admissibility of such evidence on a case-by-case basis. 

The ruling fell short of prosecutors' request that Winsberg be ordered to
allow testimony about evacuations at St. Bernard's three other nursing
homes. 

"In total, 188 frail, elderly folks were evacuated, many by ambulance, with
the loss of only one life because the owners and administrators heeded clear
warnings of danger and honored their obligation and duty to care for those
entrusted to them in spite of the difficulties and cost of doing so,"
prosecutors wrote in a court filing. 

Prosecutors argued it is impossible to assess whether the Manganos' decision
to not evacuate amounted to negligence without looking at what other nursing
homes in the parish did. 

"The whole theory of negligence presupposes some uniform standard of
behavior," they wrote. 

Although defense attorneys have sought to bar comparisons between St. Rita's
and the other St. Bernard homes, Cobb said a broader comparison with homes
in the region -- not just in St. Bernard Parish -- is more favorable to the
Manganos. 

He said figures compiled by the Louisiana Nursing Home Association indicate
36 of 57 nursing homes in the New Orleans area did not evacuate as Katrina
approached. 

"The truth is that most nursing homes did exactly what St. Rita's did," he
said. 

Cobb also said he will seek to introduce testimony about the
little-publicized tragedy at Lafon Nursing Home run by the Sisters of the
Holy Family. More than 100 elderly residents rode out the hurricane at the
home on Chef Menteur Highway, and 22 died in the subsequent five days as
help was slow to arrive. 

Cobb has said it was improper for Attorney General Charles Foti to charge
the Manganos but not the nuns at Lafon. 

The trial is slated to begin Aug. 13 in St. Francisville in West Feliciana
Parish, where it was moved after Winsberg granted a defense motion for a
change of venue. 

Winsberg, a retired New Orleans judge, is presiding over the case because
all St. Bernard judges recused themselves, most because they knew some of
the victims at St. Rita's. 

Katrina's massive storm surge flooded the one-story nursing home near
Poydras to the ceiling within 20 minutes, overwhelming the elderly
residents, many of whom were confined to beds or wheelchairs. 

The Manganos and staff members saved 26 residents, floating many of them out
windows on mattresses. In addition to the negligent homicide charges, the
couple is charged with 26 counts of cruelty to the infirm for the hardships
endured by the survivors. 

The couple had allegedly ignored a mandatory evacuation order from the
parish and refused an offer by parish officials to bus residents to safety a
day before the storm hit, authorities have said. 

The Manganos, who are in their 60s, have maintained their innocence, saying
through their attorneys that the nursing home had never flooded in 20 years
and that they were worried some of the frail residents wouldn't survive the
ordeal of an evacuation. The couple also said they were never ordered to
evacuate.