Killer Nurse (11 page)

One of defense attorneys' favorite ploys in trials is to blame investigators for having tunnel vision—for locking in on one suspect too soon, to the exclusion of others. Obviously DaVita's statement was fuel for a defense attorney, and LPD was quick to counter it.

Lieutenant David Young, LPD spokesman, put a different slant on it in reaction to DaVita's statement. He said, “The investigation is focused on a lot of things, including an investigation into one person.”

There were those who also said that the DaVita statement was more than a mere PR move—that it was an attempt to take the focus off some other things that were going on at the time. For example, DaVita issued the statement on Thursday, May 15. The very next day, they received a letter from the Texas Department of State Health Services and the Centers for Disease Control, which had conducted an in-depth inspection of every aspect of DaVita Lufkin's operation, stating the inspection found “potentially serious or life-threatening risks to patients requiring the highest level of corrective action to be carried out before reopening.”

Among the problems DHSH found were staffing and operational problems that didn't meet state-required standards. However, those were far from the only issues that existed at the DaVita facility. The investigation revealed that DaVita Lufkin failed to monitor care provided to patients and did not immediately detect an increase in adverse events related to health and safety. It also found that the facility did not keep complete and accurate patient medical records, including patient deaths, which had not been properly documented. Included in these lapses was that cause of death or possible death trends among DaVita patients from September 2007 through April 2008 had not been documented. Along the same lines, the inspection found that the staff hadn't properly documented an Adverse Occurrence Report Policy, which staff are instructed to fill out for “any unexpected event that is inconsistent with routine operation of a dialysis facility.” A review showed that although thirty-four patients were transported to a local emergency room in April, only nineteen of those patients had been documented by the facility.

DaVita Lufkin had some serious hoops to jump through before they could reopen, and the DSHS gave them ten days to submit a plan that corrected the problems.

One of the state's requirements was that DaVita appoint four monitors—a physician, two nurses, and a dialysis technician—independent of the DaVita company. The doctor would oversee all operations and training, including verification of competency. The two nurses had to be on-site for five days a week for the first month the facility would be open. Their job was to ensure patient safety. The technician would monitor the facility's existing water treatment system, machine maintenance practices, and all other related policies. DaVita would also have to pay these monitors' salaries.

Furthermore, DaVita would also need to undergo what the state called a “Safety Net” program. This involved checks by nursing staff to ensure that correct dialysate, medications, blood flow rates, and safety checks were utilized.

To DaVita's credit, they quickly did everything that the DSHS ordered. While they were closed, they'd been busing patients at DaVita's expense to other area dialysis centers for treatment. They hired the monitors recommended by the state, fixed the problems, brought in a new facility director, and retrained their staff.

As the date for their July reopening neared, DaVita also renewed their PR machine. A Wednesday, June 18, newspaper headline read,
DAVITA: CHARGES AGAINST NURSE UNPRECEDENTED
. A gentle reminder to the public that someone was being charged and it wasn't DaVita. The article even said, “Criminal allegations against a former DaVita nurse are unprecedented in the dialysis industry,” and went on to relate how DaVita itself had first spotted the problem and brought in their own investigators and monitors to try to find what the problems were. Michael Chee, the DaVita spokesperson, told the
The Lufkin News
about Saenz's suspended nursing license for allegations of stealing Demerol from another employer, and called her “a very deceitful person. This was a person trying to hide their actions, we believe.”

He wouldn't be the last person to call Saenz deceitful.

On Monday, June 30, the state gave DaVita permission to reopen in phases and gradually build up to operating at full strength. However, the independent monitors remained at the facility for six months to ensure that DaVita remained in compliance with state and federal guidelines.

The doors reopened for nine patients on July 2, 2008. Not everyone was happy about the reopening. That morning, Wanda Hollingsworth, daughter of Ms. Thelma Metcalf, one of the patients who died on April 1, led a group that included her daughter, nephew, and sister-in-law to picket the clinic's opening. Passing cars honked as they waved signs. One sign said,
BEWARE. THEY DON'T CARE. MY GRANNY WAS MURDERED THERE.

Hollingsworth left before the official opening. She later told
The
Lufkin News
that DaVita had told them to get off the property. “I wanted to ask a few questions or at least listen to what [DaVita spokesperson Chee] had to say. [ . . . ] If he was so sure of himself and his statement, then he shouldn't have had a problem with one of the victims' family members being here. But with how they have handled things, it doesn't surprise me. I want the facility to shut down, DaVita to take responsibility and the nurse who has been charged to serve jail time. You can't tell me that someone else did not know what was going on.”

Before the clinic reopened, DaVita told the newspaper that the patients were anxious to come back home, as Chee put it. “All but two patients were anxious to return. That's two out of 130.”

He didn't say which two weren't anxious to come back, but Ms. Marie Bradley was quick to put her name on that list. She told
The Lufkin News
, “I'm not going back. I'd be petrified. They tried to kill me.” Ms. Bradley had been rushed to the hospital from DaVita in cardiac arrest. She woke up at the hospital two and a half days later with no memory of what had happened.

July and August 2008 brought more deaths to East Texas. On July 15, Ms. Cora Bryant died in the hospital, and then on August 15, Mr. Garlin Kelley Jr. added his name to the list of possible murder victims.

As the investigation continued,
The
Lufkin News
was finally able to get a comment from Sergeant Steve Abbott. In October he said, “This is a very complicated investigation with a huge amount of medical information involved and requires us to go outside our normal investigative resources to seek medical expertise for review of the facts.”

Lieutenant David Young added, “Once the police investigation is completed it will be presented before an Angelina County grand jury, which will decide whether or not to issue an indictment for Saenz.”

Obviously, with or without Saenz, DaVita had some problems at the clinic. However, the question paramount to the Lufkin Police Department and to the citizens of East Texas was this: Was DaVita responsible for the injury to the two patients, and the deaths of the others, or were those acts by one individual?

CHAPTER
12

BIRTH OF THE SCAPEGOAT

When someone dies of old age or natural causes, the family grieves, but they are eventually able to get on with their lives the way most of their loved ones would want them to. After all, painful as it may be for the ones left behind, dying in such a manner is a natural process—something we all expect.

But no one expects their loved ones to be murdered—especially not by the medical professional trusted to care for them.

Murder is a crime against nature, willfully robbing an individual of his or her remaining natural life, and taking that person away from his or her loved ones. Murder isn't just a crime against a single person, but against that person's loved ones, too.

This is the reason motive plays so big a role on TV crime shows. People really do yearn to know who committed the crime and, more important, why. It is almost impossible to go from grief to closure without answers to these questions.

At issue in the DaVita case was that the loved ones of the dead not only didn't have the who or why answered, but didn't even know if their loved one died from natural causes or if they were robbed of that person's love by murder. They were in suspended animation. Their grief couldn't end, and they couldn't get on with their lives. Did the Good Lord call one of His own to heaven? Or did someone interrupt the natural process and kill their loved one? If so, why?

Although the families weren't getting any answers, as 2008 came to a close, Sergeant Steve Abbott and the investigation were starting to see some results. Even though they'd expected it, the results of the blind study conducted by the FDA still surprised them. They'd sent fifty-one numbered samples with the victims' samples intermixed. The FDA had no idea which sample belonged to the victims. However, the report they sent back indicated that every single sample from a victim showed traces of bleach, while not one of the other random samples showed any.

Although the large biohazard bags containing the patients' bloodlines were all labeled with the patient's name on the outside, Sergeant Abbott had gone the extra mile and had each of the bloodlines tested using DNA.

The DNA lab compared blood samples from the lines themselves to each individual patient's blood. (In the case of Ms. Few and Ms. Metcalf, for whom blood samples weren't available, DNA was compared to blood from daughters of the victims.) DNA results indeed confirmed that the bloodlines inside each bag actually belonged to the person whose name was marked on the outside.

Along with this, Abbott had hundreds of people to interview, including all of the DaVita employees. He even went to the trouble to interview ex-employees who'd been fired by DaVita. This also turned out to be a smart move in the investigation.

By the end of the investigation, he had sorted through 16,000 documents. Some of those documents that Sergeant Abbott examined were DaVita employment time records, which were very revealing. By this time, he was investigating what he believed to be five murders and five aggravated assaults. As he studied the time sheets, he discovered that the ten occurrences had occurred on six days, and there was only one DaVita employee present and working on the days that all of the occurrences happened: Kimberly Clark Saenz.

As 2008 closed and a new year began, Herrington and Abbott knew that they had a ways to go for trial, but they were almost ready for that grand jury Lieutenant Young had spoken of.

* * *

By the end of 2008, everyone in East Texas knew that the police were investigating not only the two aggravated assaults but possible homicides, too. Rumor after rumor swept through the small community about the possible serial killer; that it was a nurse sworn to help the sick made it even more unconscionable.

And then there was the accused method—the idea that she'd used bleach via IV was seen not only as heinous but cowardly in the gun-loving area. East Texas is a land that respects courage and the American way. It's a land where they really would need to pry the guns from an East Texan's cold, dead hands, a land where hunting and shooting are a way of life—almost a religion of its own.

By January 2009, Saenz had changed attorneys—from Scott Tatum, a veteran local attorney, to Thomas Ryan Deaton, a young attorney. Also, since it was quite obvious that she was never going to get another nursing job (and in any case, wasn't allowed to work in a medical facility as part of the terms of her bail), she voluntarily surrendered her license. This also saved her the trouble of having to testify or respond to the allegations from Woodland Heights or the State Board of Nursing, where her testimony could be subpoenaed by the district attorney.

Despite surrendering her license, however, Saenz did violate the stipulation of her bond agreement when she got a job with Dr. Matthew Rowley, a local dermatologist, and in March 2009, went to work at the Lufkin Dermatology Clinic—though as a receptionist, not a nurse.

But with her name splashed across the state and the nation under serious charges, how was she even able to get the job at the Dermatology Clinic? Although the news carried Saenz's name, few East Texans could tell you what it was. Most people simply referred to her as the DaVita nurse, and even after the trial, still did. And besides that, she also lied on her application. Naturally she couldn't put down her work history. So she didn't. She put on the application that she'd been working for a roofing company and gave her husband's cell phone number as a reference.

While Kim Saenz began what was to be yet another short-lived job, in downtown Lufkin at the courthouse, Herrington had convened a grand jury to listen to evidence of cases in Angelina County, but one in particular involved Herrington, Sergeant Steve Abbott, Corporal Mike Shurley, and several others. How she was able to get off of work to attend the grand jury session is anyone's guess, but the members of law enforcement were surprised when the doors to the grand jury room opened and Saenz marched in.

Herrington said that in Angelina County, suspects are welcome to speak to the grand jury if they want to, though people accused of crimes don't often appear to testify. Seldom will a suspect's attorney let them. For one thing, if they appear, they are by themselves—their attorney can't appear with them. Second, the testimony is a matter of record and can and will be used in a criminal trial. And third, the members of the grand jury are empowered to investigate as well as review evidence, and are allowed to ask questions of the suspect, who very well could incriminate herself—especially without an attorney by her side.

Some people later said that it was a ploy by the defense attorney to get certain things on the record to try to combat what Saenz had said in the police interview, and that she walked in with a script. Herrington called it the birth of the “scapegoat” theory, which would become an integral part of the defense strategy.

As a matter of fact, Saenz's entire testimony to the grand jury contradicted what she'd told the police in her earlier interview.

On the other hand, her stated purpose for appearing and asking to speak to the grand jury was that she'd been accused of some things and she wanted to clear her name. But if it was meant as a means for Saenz to try to talk her way out of trouble—and it was noted that she was sober, a stark contrast to what the grand jury had already seen from the police video—it didn't work.

Big bold headlines in the April 1, 2009, newspaper declared:
GRAND JURY INDICTS FORMER NURSE ON CAPITAL MURDER CHARGES OF FIVE PATIENT DEATHS
. The news swept through Angelina County and across the entire country. Finally, the family members of the dead patients knew without a doubt that the investigators and the district attorney believed that their loved ones had been murdered by Kimberly Clark Saenz.

In an odd twist of fate, the newspaper headlines came out on the one-year anniversary of the day that Ms. Thelma Metcalf and Ms. Clara Strange had coded on their machines at DaVita, within five minutes of each other. Near the headlines about Saenz's indictment was a picture of Walter Metcalf Sr., husband of Ms. Metcalf, flanked by their children. On his right were their two sons, Johnny and Walter Metcalf Jr., and on his left, their two daughters, Patricia Metcalf and Wanda Metcalf Hollingsworth. In the picture, Ms. Metcalf's loved ones were standing by the creek in Arkansas where she had played as a child. Nearly a year earlier, they had spread Ms. Metcalf's ashes over this area.

Johnny Metcalf's statement to
The
Lufkin News
in many ways reflected the feelings of other victims' family members. “I have mixed feelings about the nurse being accused of murdering my mother. Evidence will show if she was intentionally hurting those patients or if she is being blamed for others' wrongdoings. I have to have faith that the justice system will decide if she is guilty or innocent, only time will tell. I do feel that something horrible was happening at DaVita and the clinic is guilty of not properly supervising its staff and protecting the patients from harm. We sent our loved ones up there to be cared for and treated humanely, instead all our families have had to live this horrible nightmare.”

In other words, while a jury would decide Saenz's guilt, DaVita still ought to shoulder some responsibility for the actions of one of its employees. DaVita, meanwhile, was trying to distance itself from the indictments, and released a statement saying, “Yesterday's grand jury indictments of a lone individual for murder of patients at DaVita Lufkin Dialysis Center in 2008 is a painful reminder of the terrible tragedy that has impacted our teammates, our patients, their families and our community.” Obvious PR from a Fortune 500 company facing a mounting pile of lawsuits from family members of the victims. (To their credit, they ended up settling most of them.)

Ms. LaFrancis Kelley, Mr. Kelley's wife, said to the paper, “It's hard to understand what happened and how she could've done that because [my husband] was the love of everybody.” Even so, LaFrancis said she forgave Kimberly Saenz for what she'd done. She said, “Love does not delight in evil, but rejoices in the truth, it always protects, always trusts, always hopes.”

The grand jury indicted Saenz on the five counts of capital murder: the murders of Ms. Metcalf, Ms. Strange, Ms. Few, Ms. Bryant, and Mr. Kelley. However, that would not be all. Seldom does law enforcement charge anyone with attempted murder in Texas—it's difficult to prove—but the grand jury also indicted Saenz on five counts of aggravated assault, against Ms. Risinger, Ms. Rhone, Ms. Castaneda, Ms. Oates, and Ms. Bradley. Aggravated assault is a serious charge that could result in a twenty-year sentence for each count. Even without the murders, Kimberly Saenz would spend most of her life in prison if convicted of the assaults. Linda Few James, Ms. Few's daughter, voiced what many East Texans were thinking when she said to the paper, “This many people? It's blowing my mind. I mean, we live in Lufkin. How can a person that sick walk around like a normal person?”

The news of the indictments told nothing about the victims. The ten victims listed were just names to most—just numbers. Angela Scott, the daughter of Ms. Cora Bryant, called up
The
Lufkin News
and told them she wanted people to know who her mother was. She went on to tell them about the values Ms. Bryant had instilled in her, how her mother had passed on the will to never give up, and how Ms. Bryant had given her strength to carry on. “We knew my mother was going to die eventually of kidney failure, but not this way. Not by the hands of someone else.”

The one divergent voice in all this, unexpectedly enough, was Ms. Carolyn Risinger, one of the victims whom the two witnesses saw Saenz inject with bleach on the morning of April 28.

Ms. Risinger told her story about that day to KTRE-TV on April 2, 2009. “It started out with a pressure on my chest. It felt like somebody was pushing on me and then my stomach started a severe hurt.” She said, “It turned into a nightmare, and so many had died I thought it was my turn.”

Her husband, Jim Risinger, also told the reporter, “You don't go in there [to the dialysis center] expecting to be up dancing or anything, but you'd like to see them still be alive.”

But neither Ms. Risinger nor her husband blamed Kimberly Saenz for killing the five patients or attempting to kill or harm her. On the contrary, they told about a time when they thought Saenz tried to help her. They put the blame squarely on DaVita's shoulders. “The fault lies with more than a single person,” Ms. Risinger said. “DaVita was such a rat hole that I said they're using her as a scapegoat.”

Interestingly enough, Ms. Risinger would be the first person to use the word “scapegoat” in public. Saenz had said it to the grand jury, but that was sealed and no one knew it at the time. Saenz's new attorney, Ryan Deaton, would also use it in an interview with the paper, but not until later. Ms. Risinger was also the only patient to refer to DaVita as a “rat hole.”