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Kennedy Trial: Prosecution Rests, ER Doc to Testify

Lawyer looks for gaps in nurse's statements; Nurse admits reprimand after accessing baby's record.

Westchester County prosecutors rested their case Wednesday in Douglas Kennedy's trial in Mount Kisco, with one of the involved Northern Westchester Hospital nurses and a security guard giving testimony.

The defense, meanwhile, is expected Thursday to call in hospital ER head Dr. Timothy Haydock, who was present with Kennedy at the time of alleged altercations with two nurses, at its witness.

Kennedy is charged with child endangerment in connection with his moving of newborn son, Bo, outside the maternity ward to get him fresh air and against medical advice, along with harassment for alleged physical contact with the nurses after a verbal dispute about moving the baby.

On Wednesday, the trial's third day, nurse Cari Luciano continued her testimony, which began Tuesday. She was questioned repeatedly by Kennedy's defense attorney about her credibility.

Luciano has accused Kennedy of kicking her with his foot when she reached out for his newborn son Bo at a stairwell entrance. Kennedy's defense acknowledges that a physical incident took place but argues that Kennedy quickly reacted on instinct to protect his child rather than doing so on purpose. Defense lawyer Robert Gottlieb visited that argument Wednesday when he questioned Luciano about it, bringing up the elapsed time of the incident and getting Luciano to acknowledge that she did not verbally tell Kennedy of her intent to get the baby.

Gottlieb, who has made credibility a central issue in the trial, spent Wednesday questioning Luciano about what he perceived to be inconsistencies between her testimony and comments she was recorded as having made to police and during a Jan. 11 check up with internist Dr. Jenny So.

Gottlieb got Luciano to recap why she attempted to get the baby; the nurse testified that she saw the infant's head shaking when the stairwell door was opened during Kennedy's attempt to leave the third-floor maternity ward.

“[It was] to protect the child,” Luciano, who sobbed during testimony, replied. 

"The baby's head looked to be shaking," she said. Luciano has also described Bo's head as "violently shaking."

Gottlieb responded by noting that Luciano did not have consistent descriptions in a statement she made to Mount Kisco police hours after the Jan. 7 incident. Nor was it included in a record of a Jan. 11 appointment that Luciano had with So.

“I don't recall what I said to the doctor,” Luciano replied when Gottlieb brought up the point.

Gottlieb used the same omissions scrutiny tactic with regards to comments made about Kennedy's speed to the stairwell after Luciano and fellow involved nurse Anna Lane blocked him from using the elevator, and about Luciano's memory of Kennedy's alleged arm twisting of Lane to stop her from keeping the door closed.

For Luciano, recalling what she said exactly before was difficult. When asked to explaining why she described Kennedy as running in her visit with So, versus walk in a recent comment, she replied: “I don't [remember my words], I was emotional with my doctor.”

Amy Puerto, an assistant district attorney, questioned the reliability of the record for Luciano's talk with So. She got Luciano to admit that she did not request the doctor writing or typing what was described.

The prosecution also objected to the omissions focus, while Gottlieb argued that it's relevant when looking at a witness's narrative. Mount Kisco Village Justice John Donohue allowed Gottlieb to continue.

Gottlieb also got Luciano to admit that she was reprimanded by NWH, in the form of a letter placed into her personnel file, for unauthorized access of Bo's contact record in the hospital's system, which is deemed to be private information.

“Yes, I violated HIPPA,” Luciano said, referencing an acronym for the Health Insurance Portability and Accountability Act, a federal law that governs privacy of patients.

Luciano explained that she wanted to look up the information because she was told, when asked about police taking action against Kennedy, about his not living in the jurisdiction.

“I wanted clarification,” she said.

Luciano denied that she shared the hospital's in-house record with others, noting that the address information of Kennedy, who lives in Chappaqua, is already a public record. The prosecution countered that what Luciano did does not constitute a criminal offense under HIPPA, but rather a minor infringement on privacy. Assistant District Attorney Amy Puerto asked Luciano about whether she was charged with a federal crime as a result, to which she replied no.

There was a brief clash between Gottlieb and Puerto over his questioning of Luciano over whether she was aware of a state child protective services investigation into his conduct with Bo. Puerto argued that, given the report on the investigation, which cleared Kennedy, is sealed, that it cannot be selectively disclosed.

"They don't get to pick and choose," Puerto said to Donohue. 

Gottlieb, who raised future voluntary disclosure of the report as a possibility, explained that all he wanted to ask was whether Luciano was interviewed by the state agency. Donohue went with Gottlieb's argument, and the attorney quickly questioned Luciano about her knowledge. She replied that she knew of the investigation but that she did not speak to the agence.

Kevin Galvin, an NWH security guard who went up the stairwell to respond to the incident, was called after Luciano left.

Galvin, a former corrections worker on Riker's Island in New York City's, testified that he went up the stairwell after be learning about a Code Purple alert, which deals with agitated people on the premises. After slowing down when he got towards the third floor – Galvin said he “didn't want to spook anybody” - the security guard said he saw Kennedy holding the baby in his left arm, with Haydock to his right. Galvin testified that Kennedy said “I want to take my baby out for fresh air.”

Galvin added that Haydock then advised Kennedy to go back to the maternity ward, which brought an end to the commotion.

The security guard also gave testimony that, while not necessarily part of the legal case, may be a public relations plus for Kennedy. He described Kennedy's question of “do you know who I am?” which the prosecution noted in his opening statement, as being asked politely. When defense attorney Celia Gordon cross examined Galvin, he recalled Kennedy having a calm demeanor, an attribute that the defense has sought to emphasize in its case.

The third day of the trial lasted just under two hours on Wednesday, including breaks, a contrast to the nearly 8-hour durations for Monday and Tuesday.

Talking to reporters afterward, Gottlieb confirmed that Haydock will be called by the defense, and that, as a procedural move, they will ask to dismiss the case. Gottlieb declined to comment when asked whether Kennedy or his wife, Molly, would be called as witnesses. 

aph47 October 25, 2012 at 12:59 AM
So now the relevant facts come out: the nurse tried to physically take this baby from its father and the father kicked her. The nurse's own testimony establishes that she was the aggressor. That's justification, plain and simple. If someone tried to take your child, what would you do? As the baby's legal parent Kennedy had a right to take his baby for some fresh air, and these nurses should not have tried to physically stop him. Moreover, it appears they knew who he was - he had been there for days and asked the nurse first for permission to leave. This is not a case of protecting a baby from abduction, its a case of nurses trying to enforce a hospital policy over the rights of this baby's legal parent.
aph47 October 25, 2012 at 01:06 AM
It's really surprising that no one seems to get grasp what's really going on here. Look at the testimony, now, 10 months later, the nurse says for the FIRST time that the baby's head was "violently shaking." Both of these nurses have hired civil attorneys but say they don't want money. Please. These nurses hired a lawyer, and now they're exaggerate so that the events look worse for Kennedy. This is a money grab.
Tom Auchterlonie (Editor) October 25, 2012 at 02:15 AM
With regards to "violently shaking," she has said it before: http://patch.com/A-rk01 I updated the story to reflect that, in general, Gottlieb criticized Luciano over different descriptive details.
aph47 October 25, 2012 at 02:29 AM
Well that speaks better of the credibility then, that it was said in February. The hiring of a personal injury lawyer is still suspicious.
Kathleen Levesque October 25, 2012 at 12:41 PM
Well there seems to be a lot of he said,/she said but what really should be the question is why Mr. Kennedy felt the need to take his 2 day old baby out for fresh air in February? Why couldn't he just wait until he took his son home like any other parent would have done? Why is it he felt the need to be different? If this was any regular Joe, there would be no sensationalism or reporting of this story. Hospitals put rules into place for the safety of the children. If the nurses are doing this for money, well then that will be on their heads. Mr. Kennedy should realize he has to follow the rules like everyone else if he is going to use public facilities for himself and his family.
YahYah October 25, 2012 at 01:39 PM
Why were they still there? You leave L&D after 2-days if you have a C-section. Did his wife suffer a complication? Why were they all hanging around there for days?
Collegenurse October 25, 2012 at 01:46 PM
I agree this entire incident was blown way out of proportion...he said/she said...the obvious concepts here are twofold...1. Why was he taking the baby outside in January before discharge? 2. The nurses were following protocol by stopping him. I have been in situations in hospitals as a nurse where patients feel they do not need to follow protocols/procedures I would inform them and if they chose not to obliage I called security and let them handle it... Maybe the underlying problem here are 4 people who failed to communicate and it obviously got way out of hand...now the lawyers are making money!
Andromachos October 25, 2012 at 02:25 PM
It was 60 degrees out that day, January 7, 2012. Not exactly frigid. With respect to the rules, Mr. Kennedy was a parent of the child. What he wants trumps whatever hospital rules there may be. Same as you. If you want to follow the hospital's policy that is your choice. However, there is nothing against the law about following or not following hospital policies.
Andromachos October 25, 2012 at 02:27 PM
Why do you think hospital policies have the force of law? They do not. If you breach a policy, it should be noted in the chart, and if necessary, the patient can be discharged against medical advice.
PC Lover October 25, 2012 at 03:23 PM
Exactly...as I have said from the get go. The nurses were way out of line. The parent has absolute decision making over his child...Kennedy or not...he has rights as parent that supercede arbitrary hospital rules. Those nurses should have asked nicely and if he did not comply they should have noted it in the file. End of story. They knew full well who he was...by which I mean he is the father of baby Bo...not that he was a Kennedy. They are nurses, not prison guards. The baby was not at risk. Nurses...G-d bless them...they do great work and save lives...but they hate when people don't do as they are told. They bum rushed him with his new baby in his arms and (unfortunately for them) he responded appropriately. I hope the judge sees it for what it is. Please allow me to apologize in advance to all the nurses out there who will send hate mail to me for disagreeing and speaking my opinion.
ML October 25, 2012 at 03:31 PM
A newborn infant should not be removed from the medical facility. Notice how he calmed down when he saw the former Rikers employee come upstairs. When it was just women, Kennedy was a big man. How misogynistic, seriously...
PC Lover October 25, 2012 at 03:31 PM
Collegenurse you are right to question his actions. He was taking the baby outside in January because it was his perogative and right as a parent. I strongly doubt his intent was to hurt his newborn baby. So agree or not...he may be a damned fool...but he has the right to be a damned fool without the nurses attacking him. You are also right that they should have called security who are professionals in handling this type of thing and likely would have talked it over in a calm demeanor and arrived at a reasonable conclusion without the aggressive behaviour which apparently precipitated Kennedys' response. Come rushing at me with my baby in my arms and I will kick you too.
ML October 25, 2012 at 03:34 PM
You're not getting the grasp that the videotape proved that he became physical with nurses. That can't happen. Those nurses were acting on the behalf of that baby. If he weren't a Kennedy, this would be a whole different story. He was absolutely wrong.
PC Lover October 25, 2012 at 03:45 PM
ML, the article states "Luciano has accused Kennedy of kicking her with his foot when she reached out for his newborn son Bo at a stairwell entrance" That is her sworn testimony. Try taking my newborn out of my arms uninvited and you too will get kicked...or worse. Again, he may have not been doing the brightest thing on the planet, but clearly the nurses escalated the situation with inappropriate aggressive behavior. They have to accept responsibility for that. The security guard came in soft and calm like a professional (as the nurses should have done) and talked the whole thing down.
Collegenurse October 25, 2012 at 04:16 PM
why is my comment flagged as inappropriate?
NorthCountyHound October 25, 2012 at 04:43 PM
You'll never know. It's like the guy in the Trial by Kafka!
PC Lover October 25, 2012 at 05:14 PM
It does not appear flagged as inappropriate as I am looking at it now.
Collegenurse October 25, 2012 at 05:15 PM
Oh I see read it wrong....
Carol October 25, 2012 at 08:55 PM
If the Kennedy's don't feel they need to follow hospital rules, Mr. Kennedy could have had his wife signed out AMA and they all could have taken whatever excursions they wanted. Problem solved. Nurses aren't there to get involved with this kind of stupidity and drama. Assaulting nurses because you don't like the rules just doesn't cut it.
PC Lover October 25, 2012 at 10:58 PM
the nurses rushed him and his newborn and grabbed for the baby. He was the one who was assaulted. He responded as any parent protecting their child should and would.
aph47 October 26, 2012 at 12:14 AM
I have to agree with PC Lover here. If someone tried to grab my child out of my arms, my foot in their "pelvic area" would be the least of their problems. Carol, I'm going to guess you don't have kids, if you do, I'm surprised that you'd be oaky with someone trying to grab your child from your arms without asking.
PC Lover October 26, 2012 at 12:41 AM
To ML...you said, "those nurses were acting on behalf of that baby", however that baby was not at risk. He was in the loving arms of his Daddy...the safest and best place to be on the planet. The nurses were not acting on behalf of that baby...they were acting on behalf of hospital rules....very different! And Kennedy calmed down when the security guard approached because he testified that he approached in a calm and non-threatening manner...not grabbing for the baby. Had he rushed in like the nurses and grabbed for the baby he would have gotten kicked too ...and rightfully so. Too bad the nurses could not just admit they over-reacted. The whole thing would be over already.
ML October 26, 2012 at 02:59 PM
PC Lover, he could have put the baby in a bassinette and there would have been no problem with him going outside. But what kind of nut takes a newborn baby outside a hospital to begin with? I never have heard of anybody even suggesting that. This clearly is a case of misogyny and arrogance. He was a Kennedy who wanted to do something. Nurses cannot be physically attacked...they shouldn't be verbally attacked. KENNEDY overreacted. He was going to run down the stairs with the baby because the nurse said he couldn't go outside? Insanity...
ML October 26, 2012 at 03:02 PM
PC Lover, a rational person would say, ''OK, fine.'' His actions were irrational and arrogant.
ML October 26, 2012 at 03:05 PM
PC Lover: Did you see the video? That's not how it happened at all.
aph47 October 26, 2012 at 08:10 PM
@ML - The nurse testified that she tried to reach for the baby then got kicked. That's also what she said on the day that she filed the police report. It's in the deposition which is posted here http://chappaqua.patch.com/articles/nurses-claim-kennedy-injured-them-in-alleged-scuffle#pdf-9203499. I watched the video and I can't tell exactly what happened, but according to the nurse's own testimony she did go for the baby first.
PC Lover October 26, 2012 at 08:23 PM
What about the nurse breaking hospital rules and her admitted HIPPA violation? She knowingly broke the rules! She should be fired!
Bonkers October 26, 2012 at 09:00 PM
Newborns are wired with bracelets that do not allow you to take them past a certain point on the floor, they are also not allowed to be held and walked around hallways..bassinettes only. Also, the nurses are not in the position to discern if a "harmless" walk outside is in fact harmless. Go and visit a maternity ward and you will quickly come to understand that Mr. Kennedy broke every existing rule in place for a child's safety. A new born is NOT allowed to leave a hospital until properly discharged
PC Lover October 26, 2012 at 09:44 PM
Kennedy was operating under doctors supervision and nurses station approval. All your "buts" and "rules" and "policies" and "what ifs" are meaningless. Regardless what you think, as a lay person he is in the clear. As I see it, he had the blessings of the medical staff of the hospital, until the other nurses tried to take it away.
Blaue Vogel October 26, 2012 at 10:38 PM
If the hospital staff, and this goes for the part time ER doc too, isn't all on the same page regarding policy and procedure, it's a recipe for disaster. A united front is much harder to break.

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