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Hospital video of shooting still is under wraps

STORY BY MICHELLE GENZ (Week of May 5, 2022)

More than a month after deputies shot and killed a mental health patient after he came at them with scissors in the emergency room of Cleveland Clinic Indian River Hospital, Judge Janet Croom, in a order filed last Friday, questioned “the propriety” of the search warrant that caused the hospital to turn over hospital surveillance video to Sheriff Eric Flowers, as well as the patient’s records.

The judge also made clear she wants to involve the patient’s family in any decision to release the records, which include photographs, audio and video records and his private medical information.

In deferring her ruling on the hospital’s motion for an injunction that would keep the video private, Judge Croom ordered the preservation of the status quo – the video and other records will remain private for now.

Flowers has said publicly multiple times that he wants to make public the hospital’s surveillance video because he thinks it shows the actions of the patient more clearly as he moved toward the two deputies who fired, and in Flowers’ view is more likely to exonerate them than the bodycam video he has already released.

But in a footnote to her order, Judge Croom questioned “the authority by which the Sheriff could make such proposed public use of the surveillance video” since the warrant itself directed that the originals of any materials obtained through the search warrant be filed with the court within 10 days. They were not, she noted.

In her order, the judge gave the sheriff five days to provide notice to the patient’s family or personal representative of “the materials obtained in response to the warrant, the existence of this lawsuit, their rights to participate in this suit, and obtain and immediately file either a signed waiver of their privacy rights, or a signed statement that they would like to be heard as to the issues presented herein.”

The sheriff also has to produce to the court under seal the sworn affidavit presented to Circuit Judge Dan Vaughn, who signed the warrant, for an “in camera” or private review. The sheriff also must file a sworn affidavit on the status of the department’s compliance with the search warrant’s own requirement that the original materials obtained through the warrant be filed with the court.

In footnoted remarks, the judge addressed the sheriff’s position that the hospital has no standing to raise the patient’s privacy rights. “The Court finds that with the facts as presented thus far, the Hospital appears to have standing at this juncture, but will defer final determination until after such notice (to patient’s family) is provided.”

She also pointed out that “the validity of the warrant is unclear” because it requests patient records “for the entire month of March, not just for the period encompassing the March 26th incident, though the materials sought were alleged to be related to medical records being kept or used in violation of (crimes allegedly committed by the decedent).

“However, the Court is unaware of the legal authority supporting a search designed to aid of prosecution of a crime which has no defendant to charge.”

In fact, the search warrant entered into the docket requests records for a full year, not just a month, from March 1, 2021 to March 26, 2022, the date the patient was shot to death. It’s not known if there was a subsequent correction to that earlier date, or whether any other records for the patient that year even exist.

Prior to the judge’s order, the attorney for the hospital, June Hoffman, filed a proposed order granting the motion. That proposed order came the day after a hearing on the matter last Tuesday, and presumably at the request of the judge.

That filing did not appear to include the specific issues Croom raised in her order to defer. It did cite Florida’s Mental Health Act, better known as the Baker Act, for its “special confidentiality protections for a patient’s mental health clinical record and other data.” It further quotes a section of the law that unless waived by the patient, or in the case of a deceased patient, a personal representative or family member, “the confidential status of the clinical record shall not be lost by either authorized or unauthorized disclosure to any person, organization or agency.”

The act goes on to say any “person, agency or entity” receiving those records shall “shall maintain such information as confidential” and exempt from provisions of Florida’s public records law, in other words, they can’t be released to the media through public records requests.

Hoffman’s proposed order spelled out that the hospital’s surveillance video is within the scope of the Mental Health Act’s umbrella of “all other information recorded by facility staff which pertains to the patient’s hospitalization and treatment.”

Hoffman goes on to write – again, proposing how the order could read should the judge rule in the hospital’s favor –  that even if the Mental Health Act did not have the confidentiality restriction, “the interests of patient confidentiality and the dignity of a patient and his family under these extraordinary circumstances outweigh any public interest in access to the clinical records of a young mental health patient in crisis and the Hospital’s surveillance video that graphically depicts the tragic last months of his life.”

The proposed order was sent to the sheriff’s attorney, Adam Fetterman, for comment, according to the filing. Fetterman said Monday “we are evaluating Judge Croom’s order and examining our options.”

The patient, brought to the ER by family the day before the incident because of his mental state, was held there under the same Florida law that may now protect his records. The Mental Health Act, better known as the Baker Act, provides for a voluntary or involuntary 72-hour hold so that the patient can be evaluated as to whether inpatient admission for a longer stay is warranted.

That Friday in late March when the patient came in, and all day Saturday well into the evening, there were apparently no in-patient beds available in nearby designated Baker Act receiving facilities. That included Cleveland Clinic’s own Behavioral Health Center directly across from the hospital.

And because the ER was also packed, there was no actual room for the patient to wait in. Instead, he was made to sit on a gurney in a hallway, dressed in a hospital gown, with two caregivers assigned to him. According to Sheriff Flowers, the wait may have stretched close to 30 hours.

By around 10:30 p.m., four deputies – one hired by the hospital and three others there for other cases – had congregated at the nurses station, when the patient got up from his gurney and with a pair of scissors he “acquired from a nurse,” according to the hospital attorney, approached the deputies. Two of the deputies, both SWAT team trained, shot and killed him.

Flowers has already released video – and without blurring faces first – from the only one of the four deputies with an operational body camera. But he wants the public to see the hospital’s security camera video because he believes it more clearly shows that his deputies were threatened.

At the press conference, Flowers made mention of separate security cam video, and declared he would release those tapes as soon as he got them.

There are four steps plaintiffs must pass to be granted a motion for temporary injunction. They must show there is irreparable harm done if an injunction is not granted; that there is no legal remedy sufficient to compensate for that harm; that they are likely to prevail on the merits; and that the injunction is in the public interest.

Regarding public interest, Hoffman told the court that the way to determine whether deputies acted appropriately is through an internal affairs investigation. “The public is not the ultimate arbiter of whether this was an appropriate law enforcement response to the behavior of a patient in our facility,” she said.

“And even in the event that there is an appropriate public interest in that particular issue, that the privacy and dignity of the patient and his family as well as the nature of this patient’s experience while he was undergoing a mental health crisis, that that should be more in favor of non-disclosure.”

At his press conference the day after the shooting, the sheriff disclosed information concerning the patient’s specific actions related to his mental state prior to coming to the hospital. He also disclosed medical details involving his condition.

Since the release of that information and video, Hoffman told the court, “there have been public disclosures concerning the patient’s identity, and the sheriff’s office specifically identified the name of the patient.

“There has been no consent by the family to the disclosure of private health information or the patient’s identity,” said Hoffman. “To our knowledge, the family learned of the patient’s death through the media.”

As of this weekend, the patient’s family had not stepped forward. Hoffman said they declined an invitation to meet with hospital officials.

Fetterman argued the hospital had “no standing to argue all of the damages the plaintiff argues to protect the identity of the patient and his caregivers … Dignity and privacy is not at issue here as it relates to the hospital itself. The only issue that relates to the hospital itself is whether or not the disclosure of the video results in fine for some type of HIPAA violation to the hospital.”

Such a fine would not amount to the irreparable harm necessary to legally warrant an injunction, Fetterman argued.

“The hospital by their own admission released this video to the sheriff pursuant to a lawful exception to HIPAA … At that point, the sheriff can do whatever he wants with it frankly. If there’s someone else who wants to argue that he can’t, then it needs to be someone with the proper standing to do so.” Fetterman said that could include members of the patient’s family.

So far, Flowers has seemed interested in the public seeing only a few seconds of the security cam tape, when the patient approached the deputies with the scissors. But Hoffman pointed out that the subpoenaed video shows much more: a half-hour before and a half-hour after the shooting.

“It’s very disturbing video, as one would expect, given a shooting incident of this nature. We’re very concerned about the fact that the sheriff has an hour’s worth of video that includes other patients; the demise of the patient; and his care and treatment after he’d been shot several times in the facility. It’s just very graphic. They say it’s only a five-second video but they have a whole hour.” She added that Fetterman “wasn’t even aware that they have an hour.”

According to Hoffman’s timeline, the hospital did not comply with the sheriff department’s initial civil subpoena demanding the security cam tapes and the patient’s medical records. Civil subpoenas do not qualify as an exception to federal HIPAA rules.

On April 4, though, the sheriff took a different approach, using the state attorney’s office to issue a criminal search warrant as part of a law enforcement investigation.

That investigation was a legitimate exception to HIPAA as well as Florida’s Mental Health Act and the hospital complied, producing the patient’s clinical records as well as the hospital’s surveillance video, said Hoffman.  The search warrant asked for surveillance video from 10 p.m. to 11 p.m. The shooting took place around 10:30 p.m.

The hospital immediately protested the sheriff’s plan to release the tapes. Hoffman said there were several attempts to arrive at a resolution that would protect the patient’s privacy. But no agreement was reached, and on April 13, the hospital filed a motion for a temporary injunction, as well as a verified complaint for declaratory and injunctive relief; declaratory relief is not as strong as an injunction, but gets the plaintiff an official declaration on the status of the controversy at issue.

On the day Flowers received the summons for last week’s hearing, he posted on the sheriff’s office Facebook page that he was “fighting” to release the video. Though his battle was intended to restore public confidence in his officers, many comments on the post questioned why the officers didn’t try non-lethal methods to stop the patient from, as the sheriff put it in his press conference, committing suicide by cop.

De-escalation methods did not go beyond backing up in what the sheriff described in his news conference as “a small narrow hallway, gurneys, all kinds of stuff in there.”

The hallway earned more detail than the shooting itself.

“They draw their weapons, and two of the deputies fire, shooting and killing this man,” Flowers told reporters.

And while Flowers tries to manage perceptions of his deputies, the hospital’s attorney mentioned one detail at last week’s hearing that to date had not been released, or at least not broadly: Hoffman said the patient “acquired from a nurse” the surgical scissors used to threaten the deputies.

That would seem a startling revelation by a Cleveland Clinic attorney, especially if the nurse were a Cleveland Clinic employee. That may not be the case, though. According to Steve Myers,  business agent of the Teamsters Union local that represents the hospital’s registered nurses, he was told the nurse was a travel nurse assigned to the hospital through an agency. Had it been a Cleveland Clinic nurse under investigation, Myers said he would have to have been notified. It is his understanding the scissors were picked up by the patient from a table nearby.

Both deputies who fired on the patient are on the sheriff’s department SWAT team; both are on paid administrative leave. Though he has publicly identified the patient by name, the sheriff had not identified the deputies as of press time.

Also on the zoom hearing was Gordon Snow, Cleveland Clinic’s chief security officer – not just for Indian River but for the entire international health system. Snow is the former assistant director of the FBI in charge of the cyber division.

Snow’s corporate-level presence spoke volumes about the gravity with which the vaunted health system regards the Indian River incident; the hospital’s pushback against the local sheriff, an early salvo in what could be years of litigation, hints at how seriously it regards not only the tragedy but its fallout.

That fallout extends to the hospital system’s public image; news media in Cleveland and New York also covered the shooting.  The story also was picked up by the Guardian in the U.K., where just three days after the shooting in Vero, Cleveland Clinic celebrated the opening of a stunning 184-bed hospital near Buckingham Palace.

Before the motion for temporary injunction was filed by the hospital, Flowers showed a brief portion of the hospital’s video, downloaded to his cellphone, to at least two reporters attending a press conference the day after the shooting. Later, he showed it to the Board of Directors of the county’s Mental Health Collaborative, according to Brett Hall, the group’s executive director.