Casey's Reaction to Found Remains was Video Taped

[Chilly Willy]

As long as the tape was stopped when Casey received her treatment for asthma/hyperventilation, anxiety meds, how has HIPPA been violated???

An anxiety attack IS a medical condition, even before treatment. If Casey experienced an attack that was filmed for security reasons, it appears that the jail is responsible for keeping that information private.

http://findarticles.com/p/articles/mi_hb6399/is_1_65/ai_n29062636

In subsequent modifications of the regulations, HHS stated, "Individually identifiable health information about inmates is protected health information under the final rule." Thus, HHS clearly envisions that certain correctional institutions must comply with HIPAA.

 

[Themis]

The jail is owned by the County and is under the operational responsibility of the Sheriff. The jail must provide medical services to inmates. The jail does this either by using medical staff working for the County or by hiring contractors. The County is therefore the "provider" under HIPAA. Inmates, pre or post conviction, have HIPAA rights.

 

[Marina2]

As long as the tape doesn't reveal treatment KC received, I don't think it violates HIPAA regulations. Wasn't she in a waiting area? If she were filmed in an exam room this is a violation. Disclosures that occur in waiting rooms in Dr.'s offices, ERs and the like do not violate HIPAA. When I walk into a waiting room and call a person by his full name, I'm not violating HIPAA, nor is the sign in sheet with the person's full name. If I were to say, "Mr. John Smith, please step to the back for a chest x-ray." that would be a violation.
Anyone that sits in an ER waiting room with a visible ailment isn't afforded HIPAA protection. I don't see how this security tape is any different than one found in an ER waiting area.

 

[Chilly Willy]

As long as the tape doesn't reveal treatment KC received, I don't think it violates HIPAA regulations. Wasn't she in a waiting area? If she were filmed in an exam room this is a violation. Disclosures that occur in waiting rooms in Dr.'s offices, ERs and the like do not violate HIPAA. When I walk into a waiting room and call a person by his full name, I'm not violating HIPAA, nor is the sign in sheet with the person's full name. If I were to say, "Mr. John Smith, please step to the back for a chest x-ray." that would be a violation.
Anyone that sits in an ER waiting room with a visible ailment isn't afforded HIPAA protection. I don't see how this security tape is any different than one found in an ER waiting area.

I agree, if she was in a 'common' area that is normally filmed for security reasons, the tape may not violate the HIPAA laws. However, what if it turns out that Baez is right, that jail personnel took her there intentionally so that she would be filmed when she heard the news? What would you make of that?

 

[Marina2]

I agree, if she was in a 'common' area that is normally filmed for security reasons, the tape may not violate the HIPAA laws. However, what if it turns out that Baez is right, that jail personnel took her there intentionally so that she would be filmed when she heard the news? What would you make of that?

The county stated that it's SOP to take inmates there if they are to receive bad news, not to be filmed. The fact that one goes to a doctor isn't protected by HIPAA nor is the fact that KC went to the jail infirmary. Just her PHI, protected health information, is covered. Going to the doctor isn't PHI, treatment received is. I doubt they filmed her receiving the treatment and if they did, that part can be ruled inadmissable.

 

[fortytwo]

I'm going to try a brief summation of the consensus of this thread so far, just to see if I'm following everyones' views correctly.

The filming of her reaction is most likely, but not certainly, admissible as evidence in trial. The legal ins and outs will be left to the judge.

The usefulness of this piece of tape is dubious for either the prosecution or the defense, but the smart money seems to be leaning towards the prosecution, if at all.

The obligation to release this footage to the public if included by the prosecution as evidence, and thus a part of 'discovery', is unquestioned unless the judge finds grounds to suppress its release.

The right of OCSO to release the footage in the absence of any discovery issues has not really been discussed in this thread beyond the subject of the motion to suppress, which to me begs the question; If the judge finds against the motion to suppress and the prosecution does not include the footage as part of their case evidence will we ever get to see it?

How am I doin'.

 

[fortytwo]

Something else I was curious about, and this seems as good a place as any to bring it up.

In the court session where JB argued his motion he as much as accused the OCSO and the prosecution of a conspiracy to entrap KC and to deny her her right to counsel, among other things. What kind of latitude do attorneys have as regards their statements in court. At the time I was watching it seemed to me that he had crossed a line into actionable slander.

 

[Themis]

Something else I was curious about, and this seems as good a place as any to bring it up.

In the court session where JB argued his motion he as much as accused the OCSO and the prosecution of a conspiracy to entrap KC and to deny her her right to counsel, among other things. What kind of latitude do attorneys have as regards their statements in court. At the time I was watching it seemed to me that he had crossed a line into actionable slander.

Many things lawyers say in courts could be the basis for a slander action. However, things said in court are excluded from being the basis for a slander action by the "litigation privilege." What lawyers and litigants say in pleadings and in court are excepted from being a basis for slander.

 

[debs]

I'm going to try a brief summation of the consensus of this thread so far, just to see if I'm following everyones' views correctly.

The right of OCSO to release the footage in the absence of any discovery issues has not really been discussed in this thread beyond the subject of the motion to suppress, which to me begs the question; If the judge finds against the motion to suppress and the prosecution does not include the footage as part of their case evidence will we ever get to see it?

How am I doin'.

OCSO has no obligation to release the video for public view. In fact, they have made plenty of comments along the lines of "it is not the practice of OCSO to discuss our inmates." If the prosecution will not enter it into evidence, and if JB decides he will not use it for his defense, the tape will remain unseen by you and me and dozens of folks out there curious to see the drama.

 

[Themis]

The media is making requests for disclosure under the sunshine laws of Florida, which are very liberal favoring release. The issue of whether or not the public will see it depends on whether or not the video is requested under and falls under the sunshine laws. OCSD may not "discuss" inmates as a matter of policy, but may be required to release the video pursuant to a valid request for public records. Whether the video is entered into evidence by either side is a separate matter from a public records request. In other words, OCSD doesn't really have the choice. If a public records request is made that identifies the video, the OCSD will have to produce it and generally, a County employee who is a public records action officer will consult one of the County's attorneys and then make the decision whether to release or deny release and state the reason for nondisclosure.

 

[fortytwo]

Many things lawyers say in courts could be the basis for a slander action. However, things said in court are excluded from being the basis for a slander action by the "litigation privilege." What lawyers and litigants say in pleadings and in court are excepted from being a basis for slander.

(bold above by me)

I believe I understand what you are saying, but the first two sentences seem to contradict each other.

I think you said that while a lawyer might say things in court that would be actionable in other contexts, as long as he's in court when he says them then he's safe.

 

[fortytwo]

OCSO has no obligation to release the video for public view. In fact, they have made plenty of comments along the lines of "it is not the practice of OCSO to discuss our inmates." If the prosecution will not enter it into evidence, and if JB decides he will not use it for his defense, the tape will remain unseen by you and me and dozens of folks out there curious to see the drama.

I understand that they have no obligation to release anything. My question was meant to address whether or not there was any statutory issue that prevented them.

 

[Themis]

(bold above by me)

I believe I understand what you are saying, but the first two sentences seem to contradict each other.

I think you said that while a lawyer might say things in court that would be actionable in other contexts, as long as he's in court when he says them then he's safe.

You got it exactly right. The general rule is Attorney Jones said "*advertiser censored*" could be the basis for a slander action. However, since it was said in court or in the pleadings, it is an exception to the general rule ("Litigation Privilege") and thus cannot be used to form the basis to a slander action.

 

[Themis]

The reason for the "Litigation Exception" is so that people can write pleadings and present the cases in court without constantly screening for potential slander. Litigated cases often involve stating a position or saying something "bad" about someone. There must be some reasonable effort to ascertain the truthfulness of the statements. Some states require people to "verify" pleadings under penalty of perjury.

 

[fortytwo]

The media is making requests for disclosure under the sunshine laws of Florida, which are very liberal favoring release. The issue of whether or not the public will see it depends on whether or not the video is requested under and falls under the sunshine laws. OCSD may not "discuss" inmates as a matter of policy, but may be required to release the video pursuant to a valid request for public records. Whether the video is entered into evidence by either side is a separate matter from a public records request. In other words, OCSD doesn't really have the choice. If a public records request is made that identifies the video, the OCSD will have to produce it and generally, a County employee who is a public records action officer will consult one of the County's attorneys and then make the decision whether to release or deny release and state the reason for nondisclosure.

Oh, goody.

You're saying that absent questions of suppression by the judge the OCSO can, under the right circumstances, be compelled to release the footage irregardless of its evidentiary status?

 

[Themis]

I understand that they have no obligation to release anything. My question was meant to address whether or not there was any statutory issue that prevented them.

HIPAA might prevent disclosures of some PHI information.

 

[fortytwo]

You got it exactly right. The general rule is Attorney Jones said "*advertiser censored*" could be the basis for a slander action. However, since it was said in court or in the pleadings, it is an exception to the general rule ("Litigation Privilege") and thus cannot be used to form the basis to a slander action.

That sucks.

(Oops. Can I say 'sucks' here?)

 

[Themis]

Oh, goody.

You're saying that absent questions of suppression by the judge the OCSO can, under the right circumstances, be compelled to release the footage irregardless of its evidentiary status?

Yes. The evidentiary status (intent by prosecution or defense to use the material or whether or not it is admitted as evidence in the criminal trial or a pre-trial hearing) and required disclosure under the sunshine laws are two different legal issues.

 

[fortytwo]

The reason for the "Litigation Exception" is so that people can write pleadings and present the cases in court without constantly screening for potential slander. Litigated cases often involve stating a position or saying something "bad" about someone. There must be some reasonable effort to ascertain the truthfulness of the statements. Some states require people to "verify" pleadings under penalty of perjury.

Okay. I've got it now.

Sometimes it sucks.

 

[fortytwo]

Yes. The evidentiary status (intent by prosecution or defense to use the material or whether or not it is admitted as evidence in the criminal trial or a pre-trial hearing) and required disclosure under the sunshine laws are two different legal issues.

Cool. I like. (I think?)