A Long Term Care Nightmare Part II

“A grand jury in St Bernard Parish has just returned a multi-count indictment against Sal and Mabel Mangano, the owners and operators of the St. Rita’s Nursing Home where dozens drowned in Katrina’s floodwaters. There may be more than one hundred counts in the indictment, and Eye Witness News will bring you all the details beginning at 5 pm.”

Twenty-four counts of cruelty corresponded directly to the number of residents Sal and Mabel rescued in the floodwaters. The government’s theory was that these survivors should have been evacuated in advance of the storm.”

Defense Atty James Cobb did some quick math; the penalty for negligent homicide was five years maximum for each count; cruelty to the elderly and infirm was ten years for every count. Thus, if convicted, Sal and Mabel were exposed to 175 years in prison for 35 counts of negligent homicide in addition to 240 years each for cruelty to the elderly and infirm. Practically speaking, a conviction on one count meant a sentence on all counts or a 118 count indictment.

If they lost the case, Sal and Mable would be in prison for the rest of their lives.

Sal and Mabel Mangano

LESSONS FROM THE DEFENSE-

There are many reasons why defense attorneys take on colossal cases, such as the case of Sal and Mabel Mangano. Often defense attorneys are former prosecutors and have a change of heart after being disillusioned all too often by the system.

Others are always crusaders for the oppressed- a life’s mission. 

Still, others are thrown into a similar circumstance and can relate on some level with their client. The latter was the actual circumstance of James J. Cobb, Jr, Esquire. 

He was a personal Katrina survivor. His New Orleans home had been devastated by the hurricane, and he headed to Texas, where he also had a license to practice law. 

He has practiced civil law for “deep-pocketed corporations” and insurance companies since 1978 and was a managing partner in Emmett, Cobb, Waits, Henning. Cobb also served as an adjunct professor at Tulane University Law School since the 1980s and has taught at Harvard University since 2008. 

One of his clients was the Louisiana Nursing Home Association, who ultimately contacted him and persuaded him to represent the Manganos. 

The kicker was he had never been a criminal attorney! So the fact that he jumped into it without hesitation was a reflection of leading with his heart. 

Law Professor Robert Mead made these points concerning the pros and cons of taking on such a case:

Factors Against the Prosecution and for the Defense

  • Most Problematic for both sides – The issue of the actual cause. Was it the inadequacies and poor maintenance of the levees that failed OR personal negligence? (i.e., the State and Federal government’s responsibility?) They would need strategic testimony concerning how to build and maintain a flood system properly.
  • The Manganos remained at St Rita’s to rescue other residents when only about one-third of the nursing homes in total affected by Katrina evacuated;
  • The building was built of brick and located on somewhat higher ground with a generator, nurses, and a history of no floods;
  • Elder abuse and neglect is difficult to prove legally due to the unwillingness of the resident to report; It may be a snapshot in time; Difficult to see a pattern without evidence; 
  • Transfer trauma had caused deaths in the past. Mabel knew this fact.
  • At that time, the legal difference between gross negligence and ordinary negligence was insufficient. 

Note- In the aftermath of Katrina, the Louisiana Legislature added this provision to Gross Negligence/Willful Misconduct- Keep in mind that neither Sal nor Mabel were considered medical personnel.

“In a declared state of emergency, La. R.S. 13:1731.1 applies a gross negligence/willful misconduct standard to liability claims. Still, only those against a “physician, surgeon, or physician assistant or a nurse.” This statute applies to the listed class of health care providers who, “in good faith and regardless of compensation, render or fail to render emergency care, health care services or first aid during a declared state of emergency when the state of emergency affects the rendering of medical care.” Thus, under this provision, these healthcare providers must be rendering medical care affected by the state of emergency.”

  • Louisiana law states that a violation of an ordinance or statute exists that qualifies as presumptive evidence – (i.e., evidence stemming from circumstances that appear to fit with the facts.)

However, the question becomes, is it guilt beyond a reasonable doubt which is the criminal standard?

Factors Against the Defense and for the Prosecution as per Richard Mead-

  • In a nursing facility, especially in an emergency, a heightened standard of care is the expectation and failure to perform a particular duty- (i.e., A nursing home administrator with an evacuation plan and the means to execute it, coupled with Mabel’s refusal to take the buses should have constituted a special duty;)

As per Atty James A. Cobb-

  • Federal evacuation plans are long on generic info and full of platitudes. There is no mandate for critical decision-making.
  •  Mr. Mead commented that, Typically facilities don’t pay attention to the content of government policies. Instead, they adapt to policies that fit their needs.
  • On a personal note, as I read ‘Flood of Lies”, Mabel and Sal frequently indicated that they could not understand basic information given by their attorney. They needed the simplest of explanations, the bottom line. This may have been due to their lack of education and worldliness, as well as their extreme stress. How could they comprehend and complete information on the fly from a Federal document that didn’t say anything? Additionally, how does a clerical function of filing your plan in the local courthouse and the State Department of Health and Hospitals in Baton Rouge, and with a personal copy that may have been destroyed in flood, bring any solace? The government rule was- They must have a plan on file, but they are not required to implement it. How ridiculous!
  • James Cobb learned while preparing his defense that a letter written by Sal Mangano could have potentially been very damaging. St. Rita’s emergency plan included a transportation company owned by Sal consisting of one van to transport 59 people and their life-sustaining medical equipment. Does this make any sense?
  • The families of those who died, the St. Bernard Parish community, national and international media, including ‘Nancy DisGrace’ spun the story with so much hype, many untruths, that Sal and Mabel were the most hated couple in America. They were the perfect scapegoats! How would the defense overcome that?

A Closer Look at the Defense-

James A. Cobb’s primary purpose initially was to get Attorney General Foti to quash the arrest charges and arraignment of Sal and Mabel, even though the Army Corp of Engineers took public responsibility for the failure of the levees. The AG did not respond directly, nor did backroom deals work. Foti was a career politician and reportedly not a competent AG. He had done some unethical things for which Atty Cobb wanted him disqualified. It didn’t happen.   

Defense strategies can include blaming the victim or various other legal maneuvers for buying time. They can distract with other issues beyond the core issues, damage control for trial by media, obtain the best help on your team to assist in various specialty areas, obtain interviews with key people before the other side. 

Cobb also employed a technique called third-party demand. In good faith, the defense believed it  played a part in the tragedy, such as the Army Corps of Engineers, Governor Kathleen Blanco, and other local politicians. Thus, St Rita’s could file this document claiming that they were not responsible; other parties were responsible. 

Without giving away the primary content and the outcome of the trial of James A. Cobb’s book, “Flood of Lies,” I will say that Mr. Cobb writes with heart and empathy for his clients and his community. He gives an honest portrayal of the overall situation. Cobb is not afraid to expose his considerable flaws, including drinking far too much or lacking the criminal experience needed. He was virtually abandoning his entire family in their great time of need in favor of the case, making promises he couldn’t keep. But, therein lies the attraction and great human storytelling. Each chapter unfolds some new ingredient.

Defense Attorney Cobb had what he termed a three-legged stool for best evidence involving these areas:

  1. He presented testimony from a former Medical Director that the number of evacuating people during a hurricane or flood is roughly equal to those who shelter in place.
  2. 37 of 52 area nursing homes also decided to shelter in place, yet none were criminally charged.
  3. He subpoenas a reluctant engineer and scientist from LSU regarding the poor manner in which the Federal levees were built, including miscalculated surge speeds, infrastructure built for a Category 2 storm versus Category 4, the wrong height, and no protective covering. 

Then there was the question of whether Sal and Mabel should testify after keeping silent for two years. Legal scholars and the public wanted them to testify, as the core issue, why they didn’t evacuate in their own words could tip the scales of justice. So the one decision they made independently was not to testify.   

The defense had far fewer witnesses compared to the prosecution. But Sal and Mabel’s daughter-in-law, T.J Mangano, also an employee, would testify as being ‘at the scene of the crime and give a heart-wrenching narrative.

 Ultimately, the outcome entirely rests on a jury, who they believe, and not believe, with an ever-present reminder of seeking evidence of the truth ‘beyond a reasonable doubt.’ 

A Story of Courage- “Saved by a Loaf of Bread” (Passage taken from “Flood of Lies”)

Before the story winds down to final endings, there should be room for an incredible level of bravery and dedication in the face of extreme terror and probable loss of life. Whatever you may think of the State of Louisiana, the Federal Government’s mishandling, and the poor judgment of the Manganos, there is no doubt they provided a nurturing service for 20 years. Right up to the end, two nurses chose life against all odds.

The accurate account of the Director of Nurses, Diane, and the Assistant Director of Nursing, Thelma, as the water was rising.  

(Paraphrased passage )- After they tried to pick up residents and place them on mattresses hoping they would float to safety, they realized the water was approaching chest level, rising 8 to 10 feet in 15 minutes. There was no safe place to go. The nurses now needed to be rescued. Four other survivors and Thelma and Diane were clinging to floating pieces of furniture. They floated together to survive. Thelma had diabetes and hadn’t eaten since early morning. She clung to Diane and said, 

“I can’t make it. “I can’t hold on any longer” after floating a couple of hours in the dark. Diane grabbed her by the hair and shoulders and said, “You’re not going anywhere.” Suddenly a plastic container floated in front of them, a loaf of bread meant for lunch with the red beans and rice. It gave Thelma energy to balance her blood sugar and gain some power. Hours later, they heard an outboard motor and rescuers -including Sal, on the roof desperately trying to get in. Thelma believed that a loaf of bread was a gift from God!

LOOKING TO THE FUTURE – WHAT SHOULD HAVE BEEN A HAPPY ENDING- 

A New Assisted Living Facility re-Opens or Does It?

The Village at St. Bernard

ANOTHER MYSTERY! What I thought might be a happy ending in the aftermath of tragedy. Instead, I found more questions than answers. To give you a taste – I discovered that the Manganos were silent partners in a new assisted living facility called the Village of St. Bernard. It was a facility where Mabel and Sal did not have to be consumed with managing many nursing staff or complex and frail residents, as they were healthier and more independent.

Their new assisted living facility, The Village at St. Bernard, was built on the very site where the hurricane destroyed St. Rita’s Nursing Home. A builder opened a 36-bed independent living – assisted living unit on June 28, 2018. The location was very controversial for some.  

After the grand opening, virtually no record a month later from many places I looked. For example, no date appeared on the Dept of Public Health licensure records, the Director’s Name, or subsequent newspaper articles.

I could find little information about the building contractor- property developers- King and Kelly Barber, except that they invested $3 million.  

Facebook posts stopped July 22, 2018. A statewide moratorium was declared on all nursing homes in St. Bernard Parish as of July 2018, leaving them with practically no facilities! What happened to the (former) Village at St Bernard?

Did they lose their license in 2018? Did Sal and Mabel have to step down due to health reasons? Was the community not as welcoming as they anticipated? 

I don’t know.

And Then, the Final Ending –

Of all the ironies in the world, I was still trying to figure out the real story behind the former assisted living venture that started with such fanfare and then no trail to follow. 

I wondered about Sal and Mabel themselves. More than likely, they were still shunned by their community. But I couldn’t see them moving to any other place on earth, for St. Bernard Parish was the genuine fabric of their lives. Mabel did not have her beloved nursing home residents for comfort and nurturing. 

What I discovered, purely by accident, was that Sal and Mabel had passed away this year, 2021. (I am assuming by the period and requests for masks that it may have been due to COVID), one month apart – March for Sal and April for Mabel after 61 years of marriage.

There were no messages of condolence on the funeral home website.

Mabel’s Obituary-

Sal’s Obituary- 

References-

1) St Rita’s Lost Cause- Improving Nursing Home Emergency Preparedness. Robert Mead, J.D. Public & Faculty Services. U of Kansas, School of Law Wheat Library, Marquette’s Elder Advisor, Vol  7; Issue 2, 2006; 48 pages;

2) Eight years After Katrina; St Rita’s Owners ‘Still Feel the 

Stigma’; ABC News Live/ “Flood of Lies” Book Interview, Aug 29, 2013;

 3 pages;

3) “What Really Happened at St. Rita’s?; USA Today, Laura Parker;

November 28, 2005; 6 pages; 

4) The Loved Ones; Esquire Magazine, Tom Junod, September 9, 2007;

20 pages;

5) No Way Out- 48 Hour Article CBS News, Harold Dow; January 31, 2008; 3 pages;

6) “Flood of Lies” Author, James J. Cobb Jr, July 2013, 330 pages;

 7) Health Administration Degrees https://www.healthadministrationdegrees.com/programs/nursing-home-administrator;

8) https://www.weather.gov/media/publications/assessments/Katrina.pdf;

9) https://www.octaviabooks.com/event/jim-cobb-flood-lies;

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