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Legal View with Ashleigh Banfield

Alarming Mortality Rate For Babies At Pediatric Hospital; Ohio Judge Hands Down Interesting Punishments Not Found In the Criminal Code; FIFA President Sepp Blatter Resigns. Aired 12:30-1p ET

Aired June 02, 2015 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEOTAPE)

[12:30:00] ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: Elizabeth Cohen at CNN how are you sir?

Sir, we want to know, why what's the death rate is for your babies at the pediatric heart hospital in your program?

He also wouldn't answer the parent's question why did so many babies die at St. Mary's. Last year a team of doctors from the State of Florida's Children's Medical Services evaluated the program. It was at the request of St. Mary's which sought "To evaluate and identify opportunities for improvement."

The head of the team Dr. Jeffrey Jacobs the professor of cardiac surgery at John Hopkins found St. Mary's was doing two few surgeries to get good at it. How few? In the United States 80 percent of children's heart surgery programs performed more than a 100 surgeries a year.

Each procedure giving them valuable expertise but the review of St. Mary's program shows in 2013 the hospital performed just 23 operations. "It is unlikely that any program will be capable of obtaining and sustaining high quality when performing less than two operations per month." Dr. Jacob's wrote.

Considering the major complications like Lila's and the deaths of a Amelia and the other babies. Dr. Jacob's concluded the situation at St. Mary's "Is not the failure of any one individual, it is the failure of the entire team and system."

The State of Florida has a letter that says, there's been a failure.

MARQUITA CAMPBELL, PA'RISH WRIGHT'S MOTHER: OK. They shouldn't do any more surgery on kids at St. Mary's. St. Mary is not qualified for surgery. Is that.

COHEN: Dr. Jacobs recommended that St. Mary's stop doing complex heart surgeries on children and stop doing any heart surgeries on babies younger than six months old.

But St. Mary's didn't listen. Just 10 days after receiving that recommendation, St. Mary's did a complex surgery on 18 day old Jashnide Desamours. And 10 months later St. Mary's did another complex surgery on 16 day old Davi Ricardo Brandad.

Both suffered terrible complications and had to go on life support. And more babies died. Weston Thermitus in April 2014. And just this past May Milagros Flores died. In total that's at least eight deaths and three serious complications since the program started.

The hospital response that the recommendations to limit surgeries were just that, recommendations not mandates. In his statement the St. Mary's CEO told us we are working carefully to improve our volumes. So how did the State of Florida respond when it received these doctors concerning reviews?

Remarkably the states says they investigated and none of issues raised broke any roles and that St. Mary's legally authorized to operate. In statements Florida health officials told us "The death of any child is a tragedy, and we will continue to closely monitor this program and this facility." That leaves these parents infuriated.

NNEKA CAMPBELL, AMELIA CAMPBELL'S MOTHER: Everyday is somebody's making a decision to allow some parent to bring their child and to turn them over into the care of a group of people that aren't fit to do what they're doing.

COHEN: These parents want to know why St. Mary is still doing heart surgeries on babies. And the answer may come down to one thing, money.

According to a study on type of open heart operation for one surgery on one baby a hospital collects more than $500,000. In response to lawsuits filed by the families of Keyari Sanders and Lila McCarthy, St. Mary's and Dr. Michael Black denied any wrong doing. These parents are left to grieve.

CAMPBELL: I know we don't got a chance to hold her and none of that --

COHEN: And you had to watch your baby.

CAMPBELL: Suffering.

COHEN: The McCarthys say they're actually fortunate that their daughter is only paralyzed. She still with them, a lot of other parents can't say the same.

(END VIDEOTAPE)

ASHLEIGH BANFIELD, CNN HOST: That video I think it just so speaks to this issue.

First of all you've been working on a story for a year with your team. After the break I want to ask you why all of sudden it started to get difficult for you to get the information that you so rightly had access too, and who try to block you from getting it.

All that after the break.

COHEN: Sounds good.

BANFIELD: We'll back right after this.

(COMMERCIAL BREAK)

[12:38:06] BANFIELD: You maybe surprised if not outraged to learn hospitals often expect us to take their abilities on faith.

CNN Elizabeth Cohen just reported on a Children's Hospital in Florida whose record on complex heart operations is abysmal. Yet many of its young patients, families never knew that. And then only found out when it was much too late.

Elizabeth joins me live now along with CNN Legal Analyst Danny Cevallos.

Your report which took a year to compile the facts were remarkable in this. They show even if the CEO of St. Mary's tried to stop you from getting this information. How and why?

COHEN: So what happen was we went to the Florida Department of Health and we said we heard that you sent a team of experts in to review this hospital. Can we please have those reports?

And then later we got an e-mail that the CEO of the hospital had sent through states saying "Hey hear CNN a reporter is asking for these reviews, well we thought that they wouldn't be released without our approval." And there were e-mails going back and forth through in the state and tenet (ph) that accompanied their (inaudible) hospital.

BANFIELD: This is the CEO who closed the garage door.

COHEN: The CEO who closed the garage door I mean it wouldn't talk to me and refuse to do an interview despite the fact that these parents want answers. And the state said "No, we can't hold this report and they did send it us. But he may -- he certainly made an effort.

BANFIELD: So our hospitals actually required to release, I hate to call death rates but the mortality rates.

COHEN: You know, I think a lot of Americans think that they are but they're not, they're not. A hospital got a very high death rate in just not tell anybody. And that is why Ashleigh we took things into our own hands.

We went to the websites of every single hospital that operates on baby's hearts since more than a hundred hospitals in the United States. And we look to see if they release their death rates and other outcome information.

And, you know, what more than half of them don't

BANFIELD: More than half don't.

COHEN: And so we have a chart on cnn.com to help parents so they can see who's open and transparent and who keeps secrets. [12:40:00] BANFIELD: Cnn.com and Elizabeth Cohen is our Chief Medical Correspondent--our Senior Medical Correspondent.

So Danny Cevallos from a legal perspective these families who are grieving, do they have recourse, do they have civil recourse against hospitals who it seems from the lay person standpoint only in fraction is that that they just don't do the operations a lot.

DANNY CEVALLOS, CNN LEGAL ANALYST: Yeah, I have to play devils advocate to some degree. The mere fact of an adverse outcome, the mere fact that a doctor may not have as much experience as say another doctor and another hospital.

These facts alone do not a medical malpractice case make. These cases and people who practice in this area will tell you these are very difficult cases to make because you must prove as a plaintiff that a doctor's care fell below in applicable standard.

Now in the case of day to day driving a car or performing normal activities it's easy for lay people I guess talk about the standard of care. But when we're talking about medicine the only other person qualified to talk about the standard of care is another doctor, an expert.

So these cases are off, and battles of the experts. So matter what even if there was some adverse outcomes you must prove not only a breach of the standard of care but beyond that that breach cause the injury because lots of things happened during a surgery that could be arguably negligent. But you must prove that that act was connected to the adverse outcome.

Keeping in mind that the people on that operating table are often very sick individuals to begin with.

BANFIELD: Yeah, Elizabeth I don't know if you can answer this but what is the recourse for, you know, those of us watching the story hearing what Danny just said. If I have a sick child how can I get information to know that I'm going to the right caregiver?

COHEN: Well the first thing that you have to know is that in most cases it's not a true emergency, you have more time than you think. And I talk to patients who say the hospital made them feel like, "Hey you've got come in here and the surgery now or your child's going to die when actually they had days or weeks or even longer. So that's the first step.

The second step is just ask for the outcome and say "How many children did you operate on last year and how many children survived and say where are these number show me on their website, if it's on their website that a problem they're keeping secrets.

BANFIELD: I think that's an excellent piece of advice if it's not out there if they're not proud their work --

COHEN: Exactly.

BANFIELD: -- that's the first line of defense maybe for us medical consumers.

Elizabeth Cohen, excellent work you and your team doing. Oh, a years of worth of work here. And Danny Cevallos always thank you for that, I appreciate it.

Coming up any judge can sent perks jail, right. But can a judge sentence them to a face full of paper spray? What? In open court, administered by the victim of the crime?

This actually happened and after the break you're going to meet the man the judge you handed down that sentence and quite a few others that you might not find in the criminal code, big robust debate.

Coming up next, with the man himself.

(COMMERCIAL BREAK)

[12:46:24] BANFIELD: Traditional sentences don't always appeal to a judge in Northeast Ohio. I want you to see how Municipal Court Judge, Michael Cicconetti, sentenced a woman who had pepper sprayed a Burger King worker. He gave her a choice. You could take jail time or you can be pepper sprayed yourself by the victim who you maimed.

So, here's the weird part.

At the container was actually filled with a saline solution. But the defendant did not know that when she opted for the spray.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: No, (inaudible).

UNIDENTIFIED MALE: No, just water.

(END VIDEO CLIP)

BANFIELD: In another case, the same judge sentenced a woman to walk 30 miles because she stiffed the cab driver for a 30 mile trip.

And here's the video to prove it.

And then there's the time he ordered the woman to spend a night in the wood because she'd abandoned 40 kittens in a park during the winter, and the time that he sentenced three men to wear chicken suit in public for soliciting prostitute.

The judge also ordered a DUI offender to spend five days in jail and visit victims of drunk-driving in the morgue.

And that judge himself, Judge Michael Cicconetti, joins me now live from Cleveland.

Judge, thank you so much for being in the program. I rarely get an opportunity to speak with judges, so this is a real treat.

I am -- I want to laugh at the time at some of these sentences. I want to cheer at the time. And then I sort of pullback and I think what about judicial temperaments and the sanctity of the higher office that you hold. How do you balance that?

JUDGE MICHAEL CICCONETTI, PAINESVILLE, OHIO, MUNICIPAL COURT: Well, I think, Ashleigh -- first of all, you have to remember that these are all misdemeanor offenses. These aren't felonies. These aren't real serious crimes. And in every case, I give the defendant a choice. They can do the traditional jail time, or they can choose to do one of these alternative sentences.

BANFIELD: So that escaped sort of the eight amendments cruel unusual punishment issue, right?

CICCONETTI: Well, maybe not the unusual. But it's their choice. Yeah, they choose to do it.

BANFIELD: Yup. What about the woman, you know, who is sentenced to walk 30 miles and she took up, you know, she took up on your offer. What if she'd been injured because that is a pretty aggressive feat (ph)? Would you have been liable for that in some way? Were you ever concerned that that is a pretty arduous thing to ask her to do?

CICCONETTI: Well, you know -- and that's valid point. You know, I take all the precautions to omit to avoid any injury. We have some provision on it. For instance, that day there was thunder and lightning so we had to pull her off for a while to make sure, you know? That -- that's part of the sentence. I have to ensure compliance and I have to ensure safety and I have to ensure supervision because without those, the sentence wouldn't be effective.

BANFIELD: So effective? That's -- I'm glad you ended with that on that sentence because I was asking Mel Robbins, one of our legal analyst, what she thought of this and she said, you know, jail isn't always effective. We turn out a lot of recidivist. We turn out a lot of people who are worst after they come out of jail.

And so, this is sort of a creative way of trying to really make something stick and emotionally affect somebody by their crimes.

So to that end is it working? Have you got enough of a track record at this point to see that what you're doing makes a difference in those defendant's lives after they, actually, carry out their sentence?

CICCONETTI: I think so, Ashleigh. I would put my recidivism rate up against any other court, particularly for the ones that have performed these types of sentences.

In my experiences been that they just don't come back.

You know, my initial criteria is that they -- it's usually a first offender, they're young and impressionable and somewhat remorseful and so that, I'm not going to -- I wouldn't met out one of these types of sentences.

[12:50:11] BANFIELD: So, I guess the other question I have for you is that, you know, we have sentencing guidelines in the American system of jurisprudence for a reason so that we can ensure consistency and uniformity so that one guy doesn't get over punished where the next guy gets under punish. And effectively is this regulated enough to fit in to that basket?

CICCONETTI: Well, I don't have to follow those specific sentencing guidelines like the federal court does.

And there -- it's not one size fits all. You can't do that. Every individual is different.

As they approach the bench, I have probably two seconds to read them as they're coming up there. And by the time they get to me, I know where it's going.

BANFIELD: Judge Cicconetti, I appreciate that you're come in on. Thanks. Like I said, I was loved the opportunity to speak to the judges. We don't get it very often. Nice to have you. And I look further talk again.

CICCONETTI: Well, thank you, Ashleigh.

BANFIELD: Judge Cicconetti in Ohio, thank you.

But I have some breaking news I want to bring your way. This is just crossing our wires right now. And it is big story, especially for those in the international arena and that is that the president of FIFA, the world governing body for soccer, Sepp Blatter has announced he's resigning. This is just days after he was reelected, I think, for his fifth term.

Speaking in Zurich currently, he called for new election. He's asking for an extraordinary congress as soon as possible to elect his successor.

You can pull this one right out of the book of, "Who saw that coming?" But Sepp Blatter embattled and controversial and long standing president of FIFA walk off the job.

That's it. More after this.

(COMMERCIAL BREAK)

[12:55:26] BANFIELD: So our breaking news right before the commercial break, a big surprise to probably everyone in the international community. And here in America, Sepp Blatter, the brand newly elected president of FIFA, just re-elected to his fifth term on Friday has decided he is going to resign and it is remarkable scandal that just keeps growing with the domino effect of information that's been leaking about the investigation that was spear headed by the American.

Out he goes after 17 years as president 79 year old leader stepping aside saying, I have thoroughly thought about my presidency in the 40 years FIFA has played in my life, I love FIFA more than anything else and I only want to do the best, I decided to stand again for election, for the good of football, his calling for new election. Yet again, another set of election. So stand by, we should know what happens next on that one.

Prosecutors in the James Holmes trial are arguing that the accused mass killer knew exactly what he was doing, when he opened fire in a crowded Colorado movie theater. And then he knew it was wrong. And then he should be sentenced to death because of it.

The defense on the other hand is arguing something else, that Holmes is not guilty, because he's supposedly experienced a psychotic episode during that attack.

The trial is now on its sixth week, here are some of the most compelling pieces of evidence the prosecution has presented against him, so far couple of months before the shooting, James Holmes bought more than $2 thousand worth of tactical combat gear.

May 10 2012, Tear gas, grenade $43 and then sum. May 10 2012 a gas mask kit. June 6 2012, handcuffs, roadsters those are spikes for the road incase someone is chasing you, like if you're bad and they're trying to catch you, catch my drift? Trauma bandage. June 28 2012 Black Kevlar combat helmet $336. June 30 of 2012, Ballistic chap, I hadn't even heard of them. But they cost over $850. June second bulletproof body armor over $900 that ticket.

Prosecutors are saying those purchases, prove that Holmes that knew his attack was wrong and was preparing for the police top come and try to stop him. But his planning went beyond weapons and gear.

And joining me now to talk about the prosecution case in the Holmes trial is CNN Legal Analyst Paul Callan and HLN Legal Analyst Joey Jackson.

That list alone is remarkable, but then you actually have a sound by from by him that played an open court about regret. And usually regret because you regret you did something you shouldn't have, let me play that and then we'll take about it.

(BEGIN VIDEO CLIP)

WILLIAM REID: What brings tears in your eye sometimes?

JAMES HOLMES: Just regrets.

REID: Can you tell me a little more?

HOLMES: Usually it's before I go to sleep.

REID: Regrets about?

HOLMES: About the shooting

(END VIDEO CLIP)

BANFIELD: Regrets about the shooting. Do you need more than that?

JOEY JACKSON, HLN LEGAL ANALYST: According to the prosecutors you certainly don't and when you put that together, because that's testimony, right. We often talk about whether defendant will testify, he's testifying in court and he's really being cross examined by the psychiatrist, so what you do is you mac up (ph) his testimony, he seems consistent, he seems logical, he seems lucid, he seems expressive.

And then you look at all the plotting premeditation that he did and they say, "You knew what you what you were doing and you knew it was wrong."

BANFIELD: Paul Callan, you know, what? If you don't think that's enough. How about the facts the he booby trapped his apartment and he looks for something far a way from a police station to attack?

PAUL CALLAN, CNN LEGAL ANALYST: You have that. And let me throw in a couple of things that came out in testimony yesterday, we tried to find to be really bazar.

One, his theory of human capital which was out lined, he has this theory that if he kills you, you -- his -- yourself worth gets absorbed by him, so his plan was to kill people in the theater so that he could increase his own self worth.

The second thing is, he didn't shoot cops during the course of the assault, they said to him "Why?" Doctor William Reid said, "Why?" And he said apparently if he shoots people and the cops had there back to him and he didn't shoot anybody in the back, you have to be forward facing for this theory to work.

And then finally his mission plan which he sent to a psychiatrist before he did it, show clear planning.

BANFIELD: So guys all I can say is that the defense has such an uphill road, but we have months to go--

[13:00:02] CALLAN: We do indeed --

BANFIELD: And I'm -- we're out of time, but thank you Joey, thank you Paul, appreciate it always. And thank you all of you and my colleague Wolf starts right now.