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New Day

Report Says Rivers' Clinic Failed to Spot Trouble; Ferguson Braces for Grand Jury Decision

Aired November 11, 2014 - 06:30   ET

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

(COMMERCIAL BREAK)

MICHAELA PEREIRA, CNN ANCHOR: Good to have you back with us here on NEW DAY.

Here's a look at your headlines:

Fifty troops from the U.S. have arrived in Iraq's Anbar Province. It is the first wave of up to 1,500 American soldiers being deployed to the region to advise and assist in the war on ISIS. The White House says these soldiers will not be involved in a combat role. They are there to bolster Iraqi forces. Ahead, we're going to speak with Arizona Senator John McCain about all of this in our next half hour.

Israel is vowing to crack down on violence after a rash of deadly attacks. The latest victim, an Israeli woman who was stabbed to death at a West Bank bus stop. Near the scene of where three Israeli teenagers were kidnapped and killed by Palestinians back in June. Earlier on Monday, an Israeli soldier was stabbed and killed in Tel Aviv.

Here in New York, an historic shift with how the NYPD deals with minor pot possession. Starting next Wednesday, police will ticket rather than arrest anyone caught with less than 25 grams of marijuana. A first-time violator would face a $100 fine if found guilty.

So, we put the question to you, good idea? Let us know. Go to our Facebook page, Facebook.com/NewDay, or give as you tweet #newday.

The images are stunning, a woman walks out of her home to find her car sticking out of the ground. Her vehicle swallowed by a massive sinkhole.

(BEGIN VIDEOTAPE)

PEREIRA (voice-over): Above ground, just a bumper and taillights.

UNIDENTIFIED FEMALE: Just a big thud. Big thump.

PEREIRA: Giant sinkhole swallowed this small Hyundai in roughly 15 minutes Monday just outside Tampa. The residents rushing to evacuate.

CAROLINE BROWSER, EVACUATED FROM HOUSE: We had five minutes to move the golf cart. Grab the dog and get out. PEREIRA: The gaping hole ten feet wide and ten feet deep, opening

right in front of this mobile home. The woman inside, shaken but not injured.

LARRY PICKERING, PARK MANAGER: She's fearful, she's all safe and stuff. She's all fine.

PEREIRA: This year alone, giant sinkholes have engulfed vehicles cross America. A sinkhole opened up under a Corvette Museum in Kentucky back in February and a car drove into one on a rural Illinois road in July.

But in Florida, the sudden and possibly deadly sinkholes are all too common. From 2006-2010, the Sunshine State averaged nearly 17 sinkhole insurance claim as day according to a legislative panel in Florida.

Last November, a giant sinkhole swallowed an entire home about 15 miles south of Monday's nearly devoured driveway.

(END VIDEOTAPE)

PEREIRA: To give awe sense of how fast the holes with develop, a CNN affiliate WFTS reported a hole when emergency personnel first got there, started out four by four feet wide by deep, it grew to ten by ten in 15 minutes. People had to evacuate. But thankfully nobody was seriously injured in the incident.

CHRIS CUOMO, CNN ANCHOR: It's still growing?

PEREIRA: Well, look, you don't know again how much it's going to grow and spread.

ALISYN CAMEROTA, CNN ANCHOR: Scary.

PEREIRA: It is. It's very frightening.

CUOMO: What do you do after?

CAMEROTA: I don't know.

CHRISTINE ROMANS, CNN CHIEF BUSINESS CORRESPONDENT: Call your insurance guy.

CUOMO: Thank you very much.

PEREIRA: And another claim.

CUOMO: A good business tip. That makes sense because -- it's CNN money time. Chief business correspondent Christine Romans here.

Big news to stocks.

ROMANS: Yes, remember how worried we were in October, guys? It could be another record high day on Wall Street today, U.S. stock futures pointing higher right now. Yesterday, the Dow climbed 40 percents to close at a high 23rd record close this year. The S&P 500 also set a record for the record, Dow up 6 percent this year. And the NASDAQ is up 10 percent, that's great for your 401(k).

All right. President Obama taking an aggressive stand for the free and open Internet. He says the Internet should be more heavily regulated and treated as an essential public utility. That means Internet service providers must treat all traffic equally and not charge content providers for better access. You can expect a big fight over this to continue.

And a lot of businesses are saying thank you to veterans with a bunch of different free stuff. Here's what's out there. Vets can get a free hair cut at Great Clips, a meal at Golden Corral or Hooters, a burger at Shoney's or Red Robin. A coffee at Starbucks. Pancakes at IHOP or Bob Evans.

Just a lot of local businesses also doing something today for veterans. It really, I mean, it's such a small price to pay for gosh the freedom that they helped secure for the United States, but it is something.

CAMEROTA: Yes. That's nice, and make sure to go out and thank, whenever you see a service member around.

ROMANS: Yes, absolutely.

CUOMO: The Bob Woodruff Foundation did a stand-up for heroes, a veteran came out he was paralyzed and now is now wearing a new piece of equipment that allows him to move.

PEREIRA: Isn't that amazing?

CUOMO: And he said, hey, people ask me all the time what can you do for a veteran, he said do something that shows you care about this country. Don't worry about me, don't worry about us. It matters that we fought for something that matters to you.

CAMEROTA: That's a great reminder.

Thanks, Christine. Great to see you.

ROMANS: You're welcome.

CAMEROTA: So, there are new details surrounding the death of Joan Rivers, a shocking new report that claims the deadly mistakes were made by her doctor and the clinic. So how did doctors fail to notice the comedienne's vital signs were dropping?

CUOMO: Plus, we're waiting for word about the grand jury in the Ferguson situation. The shooting of the teenager, Michael Brown. What do they need to find in order to bring an indictment? What would make them not bring an indictment? What is the key evidence? What are the two key moments that they're going to have to think about?

We will lay it out for you here.

(COMMERCIAL BREAK)

CUOMO: Welcome back.

Federal investigators are slamming the New York City clinic that treated Joan Rivers. In a new report, they say the clinic made several mistakes, including somehow not noticing that Rivers' vital signs were slipping away. And the report confirms that a doctor took a cell phone picture of an unconscious Rivers during it, which kind of adds to the feeling of what was going on in the clinic.

So, let's figure out what happened, what needed to happen, what should have happened?

We have CNN medical analyst, Dr. Alexander van Tulleken.

When you take a look at this, you know the protocols that are in place. These are simple procedures. That's why they don't have to be done in a hospital anymore. Clinics like this are popping all over the place.

What's your take-away?

DR. ALEXANDER VAN TULLEKEN, CNN MEDICAL ANALYST: It seems to me, as you say, these are very routine. People get very relaxed about them. Yet, when you don't follow the safety procedures, things can easily go wrong.

So, they didn't do a proper, what's called a time-out, where they go through every procedure. Everyone in the room is meant to introduce themselves. Everyone in the room meant to say what they're doing and why they're doing it, and they didn't do that properly because we at least had one procedure looking at her larynx -- her voice box that was not consented for.

So, whether or not she knew she was going to have it. We don't know. She's brought her larynx with her. But never, there was no written consent. There was a number of systemic errors here.

CAMEROTA: Let's go through the findings in this report they say went wrong. Number one, Rivers did not consent to the nasolaryngoscopy.

VAN TULLEKEN: We don't have written consent of that, but she's really bad. She may have known it was going to happen, because she's brought her doctor with her. Nevertheless, you got written consent. That is dismal.

CAMEROTA: Number two, fail to check Rivers' weight before sedation, that seems important.

VAN TULLEKEN: You can't. I mean, this drug is commonly used. Used very widely so it may be that the aesthetician just eyeballing people's weight, or so they think. But it just looks so bad, and again, it's a checklist thing. You got to weigh everybody.

CAMEROTA: This one worries me, did not document the dose of Propofol that was being administered. VAN TULLEKEN: This is the most sinister thing to me. There are a

couple of this, a lot of this, you go, you know what, if you had inspected any clinic in the city, you would find regular lapses, that are terrible, but you'll probably find them.

But this bit is really strange. So, the dose of Propofol that's recorded in the notes is 300 milligrams. At 9:30 in the morning, around that time, is the arrest and the code and she gets transferred to Mt. Sinai. At 2:00 in the afternoon the anesthesiologist goes back and alters the record and say, it wasn't 300 milligrams, it was 100 milligrams of Propofol. And that's a huge --

CUOMO: One of the nurse's staffer said, oh, I double enter by mistake.

VAN TULLEKEN: It's a double click thing on the computer. It just has a feel of --

CUOMO: Sloppy.

VAN TULLEKEN: It just doesn't feel good. You haven't weighed them. You then recorded. And after the arrest, you go back and change the notes hours later.

CUOMO: And when she goes into arrest, it's interesting, the report points out that they don't believe the right thing was done when she went into cardiac arrest.

VAN TULLEKEN: So, we've got two different issues, one is the clinic procedures and the clinic has got a physician who is not credentialed to be in that room doing a procedure they don't have consent for. Not doing an appropriate time-out check list. Things like that. And those are systemic failures, they're taking pictures, all of that look bad.

But there are two specific things that look like really bad medical practice. One is the dose of anesthetic and not weighing her and the other was the code performed correctly. It looks from the report like her vital signs are deteriorating and things are not done rapidly enough. We don't know it may be that they're taking appropriate action and the documentation of that code is wrong.

CUOMO: Or maybe that they're taking photos.

VAN TULLEKEN: Who knows at that point, because you've got two different records with two different times.

CAMEROTA: But the bottom line here is that a throat probe doesn't kill someone. So did she get too much Propofol? What killed her?

VAN TULLEKEN: That's interesting. We don't know is the answer. If I had to guess, I would say, this is speculation on my part, if you're doing a throat probe looking at someone's voice box. You can put the voice box into spasm, your vocal chords close and it prevents all oxygen going into your lungs, at which point your oxygen saturation start to pull. Now, there are drugs you can use to threat laryngospasm. We don't know if the clinic. It doesn't look like they use them.

That would be, that's anesthetics 101. I mean, you could recognize that quite quickly. So, that would be so a voice box probe can be irritating enough to the voice box that you could cause something like that. It could also be the dose of Propofol.

Remember as well, Ms. Rivers is an 81-year-old surgery, she had a lot of surgery. At least, she said before on the television, she had arrhythmia in the past. So, all of these mistakes could just be coincidental to a reasonably high risk procedure, having a very unfortunate. Nevertheless, to me if feels very, very bad.

CUOMO: And now, we hear that her family is doing a wrongful death litigation. She was cremated and buried. So, the body is not going to be available to do any of the kinds of findings you would want to do to vet -- you know, to Alisyn's question, to vet what killed you. She had a heart attack. Why did she have a heart attack? Why wasn't she brought back?

VAN TULLEKEN: So, my understanding is there was there has been already a detailed autopsy and report has been done. So, probably exhuming a body at this stage or looking at it would not be terribly helpful it may than we don't ever get to the bottom of that moment of laryngeal spasm.

But I think this investigation is just the start. They're going to go through everyone. Go through the machines in detail. I think we'll see much more emerging.

But so far, it looks like a set of systemic failures for these walk-in centers where profit is prioritized even for someone like Joan Rivers.

CUOMO: And they're popping up all over the place. This is the trend in health care.

VAN TULLEKEN: We have it seems like doctors not doing a great job in a situation that encourages them to make mistakes.

CAMEROTA: Dr. van Tulleken, thanks so much for helping us understand this. It really helped. Thank you.

CUOMO: All right. To another situation this morning, a grand jury as you know, is meeting in Missouri right now and they are approaching a decision we're told in the Michael Brown death case. So what evidence are they looking at? What will matter most? And what do they have to find to say that there are grounds to indict? We'll tell you.

CAMEROTA: Plus, this Veterans Day, there's massive overhaul of the Department of Veterans Affairs, after a more than a year of scandal. Will the new plan work? We'll ask the new V.A. Secretary, Bob McDonald. He will join us live.

(COMMERCIAL BREAK) CUOMO: We are on grand jury watch in Ferguson, Missouri. And Michael Brown's family right now is actually in Geneva, talking about the issues surrounding the shooting. But his mom and dad, they flew to Switzerland to present a report to the U.N. Committee Against Torture. They say the shooting and police tactics towards protesters are violations of the U.N.'s Anti-Torture Convention.

So, that's what's going on with the Brown familiarly. But really the story centers in Ferguson, Missouri, because for all the leak details and everything we're hearing about the grand jury, this is about their process. They're looking at all of the information called evidence and the question is, what will they find? Do you indict or not?

It's not a simple process as were being laid to be, and it's being confused by a lot of people.

So, let's get the real information here with HLN legal analyst and criminal defense attorney, Joey Jackson.

Joey, thank you for helping us do this.

JOEY JACKSON, HLN LEGAL ANALYST: Sure, Chris. Good morning.

CUOMO: We've talked about this. When people are going back and forth about whether there should be an indictment, they seem to be applying the standard to a trial as opposed to what it is when you indict. Explain the difference.

JACKSON: All right. So what happens is, different states vary in terms of what's necessary for the grand jury.

Let's talk about Missouri. There's 12 members who are impaneled in that grand jury. Now, they don't have to be unanimous, unlike a trial jury of course, where you would need a unanimous decision on a verdict. There needs to be nine of those 12 members, Chris, that voted indictment. That's one thing.

As to the standard, in a trial, it's beyond a reasonable doubt.

CUOMO: Very high.

JACKSON: Very high standard.

When you're talking about simple indictment, you're talking about two things, probable cause to believe a crime was committed. And that Darren Wilson committed it. So, that's what they're looking at.

I should also mention, Chris, that they're considering a number of charges, like what? Like murder, intent, second-degree murder. The first-degree murder would be intent. Second-degree murder, the absence of intent. Manslaughter. Was there provocation, sudden passion? Or involuntary manslaughter. Was it reckless?

So, these are the things that the grand jury is determining at this time. CUOMO: They don't have to figure it out, though. That's the key.

People get caught up, well, but it was this and he's got a good story and this one story, and this one. They don't have to decide the questions of fact. They just have to decide that there are questions of fact that make them feel it rises to the level of probable cause, that this could have happened.

JACKSON: Excellent point, Chris, because listen, in a grand jury you have a prosecutor who is essentially the -- you know, running the show, OK? The judge, the jury and the executioner, so to speak.

So, what happens is that the prosecutor presents all of the evidence. And the grand jury doesn't really know what happened. Why? It's not cross-examination there. There's witnesses who are simply testifying, giving a version of events -- as you can imagine, is consistent with most cases, there's inconsistencies. One witness says one thing. Another witness says another thing.

So, as to the facts, that's left for a trial jury, if it gets that far. They as you rightfully said know there are questions of fact and that's what goes to a jury.

CUOMO: All right. So, now, let's get to the key moments here, OK? You have what happens in the car. And who was grabbing for the gun or not grabbing for the gun. Why did the kid feel he to run away.

That's going to be one set of analysis. Then you get to the shots that killed the kid. And that gets to distance. Distance is going to be the key?

JACKSON: Absolutely. As you rightfully mentioned there are separate moments in time.

CUOMO: Yes.

JACKSON: Of course, you have to analyze what happened at that car. Was there a struggle? What precipitated that struggle? Who was involved? Was Officer Wilson getting out of the car? Was the door slammed back on him? That's one set of analysis, apparently a shot or two was fired at that point.

CUOMO: What reasonably might that have made the officer think about Michael Brown?

JACKSON: Exactly.

CUOMO: That will be key.

JACKSON: That's one.

CUOMO: Then it comes down to distance.

JACKSON: Then it comes to the second point you mentioned, distance. That is, Chris, at the time they had the encounter at the vehicle, what happened next, what happened at the critical moment, the shots were fired, the how far away was Michael Brown from Darren Wilson. And was in Darren Wilson in imminent fear for his life at the time he fired the fatal shots.

CUOMO: Three different medical examinations have been done of this kid's body. Let's assume all of them are presented. The prosecutor can present whey wants. But, certainly, if they're at trial this will become very confusing.

They all seem to agree that most of the shots came facing. The question is under what circumstances.

JACKSON: Under what circumstance.

CUOMO: So if we're close, OK, because this is going to be the difference. If I'm this far away from you, you're the officer, I'm Michael Brown. Now, the shots are here, what is the scenario? How are they weighing it? How would it be presented?

JACKSON: OK. So, what happens, Chris, is it comes down to whether or not the officer acted reasonably under the circumstances. Was there a threat being posed? And was that threat being posed imminent? Did he fear for his life?

CUOMO: Right, if I'm like this and you're firing at me --

JACKSON: There's no imminence, you're not posing a danger. But the issue then, of course, witness -- we have conflicting accounts -- was there a turning or spinning of Michael Brown at the time, and what did that represent? Were his hands up? Michael Brown's? Were his hands down?

CUOMO: Also, this matters because you are much more fearful, what I can do even if I'm raising my hands here.

JACKSON: Sure. Because now we're talking about the grab area. If I have a weapon, remember the initial struggle in a car.

CUOMO: And you may have reasonably thought as the officer that I might have grabbed the weapon.

JACKSON: Because if it happened at a prior occasion, now perhaps the officer is fearful for his life.

What's critical at the moment those shots were fired, was that officer acting reasonably and responsibly and believing that his life was really in danger? That's the crux of it.

To your issue of distance, it matters. Can you get to me? Do I feel the threat? Are your hands up? Are you posing a threat? Are you posing a danger? Are you surrendering?

That's critical, that's going into the grand jury's analysis as we speak.

CUOMO: So, we know he was running away, right? Because he was running away from the car. The officer is exiting the car.

JACKSON: Right. CUOMO: So, if he's close here and turning, it's one set of analyses as you just set out. What if as many of the witnesses say, I'm 25 feet away, I'm here and something has happened, maybe I got shot from behind, maybe I'm hearing you or maybe I'm scared, or maybe I'm angry and I turn. How does it change when I'm here?

JACKSON: It change it is in a couple of ways. First of all, the issue is going to be, am I now in imminent fear for my life? Now, you have conflicting accounts.

In the event that you're turning around, posing no danger, the shots are not justified. In the event you're turning around and you're attempting to run towards the officer as accounts have suggested and accounts have refuted, there's competing facts. That's up to a jury.

But in the event you're coming at the officer, now the officer is in a heightened state of alertness and may have justification. If Michael Brown is not coming at him and simply turning and surrendering, changes the analysis completely.

CUOMO: Especially at distance.

JACKSON: Absolutely.

CUOMO: Because closer you can say I was afraid, I saw hands. But that becomes less reasonable as the victim gets farther away.

But still, does it matter? Because what's the best version we've heard for the officer. Is the kid turned around, and started coming back at him and they start looking at the shots, the last one being at the top of his head.

JACKSON: Right.

CUOMO: What does that do to the analysis for this to have been a reasonable fear?

JACKSON: All right. Now, Chris, a couple of things. The first thing you mentioned is reasonableness. It comes down to whether Darren Wilson acted reasonably under the circumstances. There's a couple of ways you could explain a shot to the crown of the head. Either, A, you're lunging and charging. Now, OK, it would show that.

It could also represent --

CUOMO: He was going down.

JACKSON: -- that he was going down or he was cowering down, having been shot. So, it depends upon how it's sorted out.

But to your point, the grand jury simply has to determine there are questions of fact. It's up to a jury to sort out what those factual questions are.

CUOMO: That's the key. You know right now, watching Joey at home, you're saying, think this happened, I think this happened. I think I would do this.

he grand jury doesn't have to get into any of that. All they have to do is say, oh, boy, if he was this far away and I think he might have been, I think there are questions as to whether or not this was right or wrong. That's it.

JACKSON: Absolutely. And at the trial, the prosecutor will spin the evidence one way, the defense will spin it quite the other way.

CUOMO: Right. And conversely, if they don't think there's any real question, they think it makes, they don't indict.

JACKSON: Right.

CUOMO: Joey, thank you very much.

JACKSON: It's a pleasure and privilege always.

CUOMO: All right. This is one story we're going to stay on for you, but a lot of news this morning. Let's get right to it.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Another ISIS propaganda tool.

UNIDENTIFIED MALE: This war cannot be won by air power. It's got to be won on the ground.

UNIDENTIFIED MALE: I think what they're finding now, if they move, we're going to hit them.

JOE BIDEN, VICE PRESIDENT OF THE UNITED STATES: We will not let Iran acquire a nuclear weapon, period.

UNIDENTIFIED FEMALE: San Bernardino sheriff's deputies announced they had Chase Merritt in custody.

What would you ask him?

UNIDENTIFIED MALE: I wouldn't ask him anything. Only one person came out of that room.

(END VIDEOTAPE)

CAMEROTA: Good morning, everyone. Welcome back to NEW DAY. I'm Alisyn Camerota, alongside Chris Cuomo. Happy Veterans Day.

On this day when America honors its war heroes, ISIS has released a chilling video with a message for the West, as the first 50 U.S. soldiers set foot in one of the world's most dangerous places, the Anbar Province in Iraq.

CUOMO: They represent the first wave of up to 1,500 American troops being deployed to the region.