This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello there, and thanks for joining us. My name is Rob Schenk.
Smith: And I’ll Will Smith.
Schenk: And we are your hosts of the Nursing Home Abuse Podcast. We are also trial attorneys concentrating in the area of nursing home and abuse in the state of Georgia. Thank you for joining us. Lots of interesting things on the table today – we’ve got our coffee from the local coffee shop – or iced coffee in Will’s instance because he’s a huge sissy. I come from a stock where no matter how hot it is outside, you man up.
Smith: You drink hot coffee.
Schenk: You drink hot coffee. It’s how I was raised. It’s how you should have been raised, but you didn’t. Anyways, Will is used to drinking water straight out of a mountain stream, so that’s where his taste for ice coffee comes from.
Anyways, an interesting topic today because this is a topic we’re seeing more on the news, the nightly news, and this is the consideration and legality surrounding the use of nanny cams or secret, hidden cameras to capture potentially negligent or abusive behavior by nursing home staff , secretly placing a camera in the room of a nursing home. What are the considerations involved in that? What are the legalities involved in that? We’re going to kind of touch on this topic on today’s episode.
Smith: And just to give a little caveat in the beginning here – we are not advising you in a legal manner about placing a nanny cam in your loved one’s room at a nursing home. The best that I can tell you is that from our perspective, this is not something that is explicitly legal under Georgia law.
Schenk: Or explicitly legal depending on what state you’re in.
Smith: So it could be illegal under Georgia. It’s not very clear and you’re taking that risk if you do it.
Schenk: And we’ll get into it in terms of nationwide, but the law is fluid state to state in terms of who can be recorded, the circumstances behind it. So before you do it, first of all, as far as this nursing home podcast is concerned, we never give this disclaimer, which we probably should start doing that, but this is not going to constitute legal advice in any way. We are not your attorneys and this is not an attorney-client conversation, and you should not consider it legal advice.
Smith: I just want to point out that there are actually four states – I don’t recall, I think one of them is Iowa. Anyways, there are four states that have specific statutes that say you must allow residents to place nanny cams in their nursing home rooms. Georgia is not one of them.
Smith: Anyways, moving on.
Schenk: With that caveat out there, let’s kind of talk about this, but before we get into that, another component is that I think from my standpoint as a Georgia lawyer that a consideration, a recommendation prior to placing a nanny cam or a hidden camera anywhere is if you seriously suspect abuse or neglect of your loved one in a nursing home, to go through the various channels that are available to you as a citizen of the state that you’re in. So for example, contact your local ombudsman. The ombudsman program is there exactly for that purpose, to investigate, to ask questions, to go on scene. They have carte blanche to go anywhere on the nursing home they so choose to investigate and get to the bottom of any claims. You can call Adult Protective Services, Department of Community Health, whatever the healthcare regulatory body or healthcare facility regulatory body is in your state, get in touch with them. At the end of the day, the more individuals shedding light and investigating a case of potential neglect, the better because you’ll be able to sidestep a lot of these issues with regard to videotaping and nanny cams and things like that. So seek out the advice of an attorney with any suspected neglect or abuse.
With that being said, let’s talk about this because I feel like once a month, there’s a news article on the nightly news, in the local paper, whatever, of a family putting a nanny cam, like what is it, a little teddy bear?
Smith: It’s a teddy bear or something like that, a flower box.
Schenk: Yeah, and it captures blatant abuse or neglect.
Smith: And so you get to see – it’s usually some CNA punching a slapping an elderly person sitting in a wheelchair and it’s awful. I think the most recent one, it was a World War II vet lying in bed, and he’s screaming, “Help me! Help me! Help me!” and you just watch him and nobody comes to do anything.
Schenk: Right. So the use and the expense of nanny cams has dropped in recent years. Everybody has a camera attached to everything. It’s amazing to me the level of technology in just our phones. So the nanny cams are getting smaller, they’re getting better so they’re getting more and more used.
Smith: Spy cams.
Schenk: Spy cams.
Smith: Spy cams in general, you can just assume now they’re everywhere. I’ve got a friend in law enforcement that was showing me some of the surveillance cams they use. I mean it’s everything from a can of shoe polish to a watch to a pen. Everything has a camera nowadays. Just assume that you’re being recorded.
Schenk: Seriously. So most nursing homes or many nursing homes already have video surveillance.
Smith: In the public areas.
Schenk: In the public areas. However, if you suspect neglect or abuse, if you were to say, “Hey, can I have copies of those videos?” they would say no. The only time you’d be able to get those videos is if there was a lawsuit and they were subpoenaed. So that’s not available to you. But placing a camera in the resident’s room is probably not going to be – more than likely, I’m almost 99 percent sure – not going to be allowed based on the contract you signed or your loved one has signed with the nursing home. Most nursing homes are not going to allow that unless you’re in one of the states that we mentioned earlier, which are Oklahoma, Texas, New Mexico and Washington, D.C. so one in a federal area.
Smith: Washington state or Washington, D.C.?
Schenk: Washington, D.C., a federal district. So those are going to be the only places where a nursing home has to under the law allow a video camera in. But one of the main reasons why that’s an issue with the nursing home, not just because they want to cover things up, which sometimes they do, but the main consideration for why this is not something allowed and one of the reasons a resident or the family of a resident can get in trouble for this is because there are various privacy issues that could be ensnared if you attempt to secretly record your loved one.
Smith: Well first and foremost, you may not just be recording your loved one.
Schenk: That’s an exact point. So everybody that’s in a medical facility has a right to privacy. So for example, if you attempt to videotape your loved one, you may inadvertently tape the roommate of your loved one in that nursing home in that room.
Smith: And I just want to say this, and this is just anecdotal, but I’m sure that I’m not far off on this. I would say that 90 percent and maybe a little higher – 95 percent, I’m going to go out on a limb, 95 percent of nursing home rooms are double occupancy.
Schenk: Right, so any hidden camera unless it’s done in such a way and this is carefully monitored is probably going to pick up someone other than the staff and someone other than your loved one, and that becomes a massive HIPAA violation, HIPAA being the federal violation that provides privacy to your, mine and Will’s medical records and treatment facts of our medical care. And violations of HIPAA can result in fines, it can result in lawsuits, so a consideration prior to placing that camera in there is you’re not doing the roommate a favor if they get recorded. So that’s an important thing to consider.
The other component to this, not that a HIPAA violation isn’t very important and the privacy rights of other residents – not staff – isn’t important, is that each state has in their statute or common law certain restrictions on the ability to covertly, clandestinely record other people in their conversations or video-wise. So for example, go ahead Will, I’m sorry.
Smith: No, no. The keyword being clandestine.
Smith: In public, all is fair.
Schenk: Right, so for example, no one is going to sue the paparazzi of taking video footage and camera footage of Robert Downey Jr. leaving a restaurant or Jennifer Aniston leaving the same restaurant. The issue comes when someone is at a place where there is an expectation of privacy, and they’re being recorded without knowing it. So generally, these fall under wiretapping and eavesdropping statutes. So for example in Georgia, in order to clandestinely, meaning in a situation where somebody has an expectation of privacy, to record that conversation without them knowing it, one of the parties has to know they’re being recorded. That’s codified in the statute as the eavesdropping statute. So in other words, if I want to record Will telling me that he’s watched all the episode of The Crown and that’s not something he’d freely admit in public, as long as I know the conversation is being recorded, I should be able to record it and not be in violation of that eavesdropping statute in the state of Georgia.
Smith: Yeah, and that’s a really low standard. So in other words, you can record somebody’s audio in Georgia as long as you’re recording it and you know you’re recording it. It really has to do in situations in domestic cases.
Smith: In divorce cases, where you’ve hired an investigator, that investigator cannot then record two people talking because he’s not one of the two people involved.
Schenk: That’s right.
Smith: So if somebody calls you on the phone and you want to record them, you can do that.
Schenk: And what about videotaping? The eavesdropping of videotaping?
Smith: Higher threshold.
Schenk: It’s a higher threshold.
Smith: Much higher threshold.
Schenk: Generally in Georgia, both individuals need to know they’re being recorded where there is an expectation of privacy. So in the statute here, and this makes these issues tricky, and again this is not giving legal advice, but what makes these tricky is that nursing homes. That room is a residence and the statute says that you’re not allowed to clandestinely take videos unless it’s – hang on, what am I trying to say? A nursing home room is a residence. What does the statute say? Wasn’t there an exception that says you can do it in your house?
Smith: Oh no, hold on. Exceptions – first, may occur in jails. Second, property owners may record surveillance of their private property. People don’t have a reason – yeah, I think it’s this one.
Schenk: Security purpose and crime prevention. A homeowner may set up a camera to observe the immediate surroundings of the house. Recordings may be used…
Smith: So I think it’s these two.
Schenk: So a nursing home room is basically a residence, and there are certain exceptions under the law for videotaping your residence where there is a potential non-issue of expectation of privacy. Now what that means is a gray area. So does that mean – let’s take the HIPAA violation off the table. Let’s say for some reason that your loved one is in a room that has no other person in it and you put that…
Smith: So they have a private room.
Schenk: So they have a private room. There’s that secret nanny cam in there. Because there are certain expectations, and we won’t get into the nitty gritty, for people that are residents and property owners and people who have residences, does that necessarily mean you can videotape this in Georgia? Absolutely possibly not. But I think that – what do you think of the fact, Will, that a ramification of this… Do you think that a nursing home would say, “You know what? I’m going to enforce my civil right to file suit against the family of the resident who has actually in fact captured abuse?”
Smith: Yeah, and see, I think that’s actually what it comes down to is that just because you have standing to bring a suit, you might have other issues going on that would necessitate you not being sued. So if you’re in a nursing home where a World War II vet is seen on tape getting beaten by your staff, the last thing you want to do is then say, “Well we’re going to sue that individual.”
Schenk: And the last thing that the district attorney in that county is going to do is to enforce the eavesdropping statute.
Schenk: But an interesting case in this is that there’s another state that’s going to allow cameras in nursing homes and we left this out of our list earlier – Illinois. Illinois nursing homes are the latest locations where video and audio recordings are allowed as the trend continues to create an indisputable record of what takes place in certain settings. A new bill that became law on January 1st of 2017 allows electronic monitoring devices in residents’ rooms in the state’s 816 nursing home facilities. This is from the Pantagraph.com, which is an Illinois news organization. So the Illinois Department of Public Health receives more than 21,000 calls annually and responds to more than 5,000 complaints, most of them regarding long-term care facilities, and the ability to record what goes inside a nursing home may be beneficial – this is according to Attorney General Lisa Madigan – can be beneficial. And so that’s the genesis behind it. Obviously a picture speaks a thousand words. A video is 10,000 words?
Smith: Yeah. You know something else that really needs to be discussed on this too, and I would see this all too often, and this is another resident’s rights issue, we have to remember the resident themselves should be consenting to this. Sometimes you have residents that have dementia. Sometimes you have residents who are simply non-cognizant. They’re not with it. You can’t discuss things with them. They’re in a coma. And the family – does the family have the ultimate right to say to them, “Hey Mom, we’re going to record you?” That’s another issue
Schenk: That’s right. That comes to the fact where consent is an issue, and that comes to where does the power of attorney that a family member has confer the right to the other individual, to the attorney in fact, to make that decision. And that may or may not be the case depending on the wording of the power of attorney.
Smith: There’s not a lot of litigation on this issue, and that’s why it’s hard to say. Unless there is a specific statute…
Schenk: Or case.
Smith: …Or case that says you can do this or that, or there’s a case that says we have decided this is what this means or that, it’s really anybody’s game, and that’s why we say unless you’re in one of those four states, Texas, Oklahoma, New Mexico, the Washington, D.C. area…
Schenk: Or Illinois.
Smith: Yeah, or Illinois, unless you’re in one of those five states, it is not clear.
Schenk: Yeah, it’s a moving area, and that’s why again, our not legal advice, but our recommendation is to…
Smith: Try something else.
Schenk: Try something else.
Smith: Call an ombudsman.
Schenk: Yeah. So moving on, we’re going to talk about a case out of Syracuse, New York. A state health department inspection conducted last April found Iroquois nursing home did not properly manage two male residents with histories of being aggressive and sexually abusing other residents in the dementia unit of a 160-bed facility in Syracuse. The health department recently fined that nursing home, Iroquois Nursing Home, $16,000 as part of a settlement agreement based on an inspection for it that showed two men in this facility that suffer from dementia and other health problems sexually abused other residents.
So this article is interesting because it provides some staggering stats. One is the study of 10 New York nursing homes with more than 2,000 residents found one in five residents were involved in one negative or aggressive encounter with one or more fellow residents in the previous four weeks. So really the issue here, Will, is when is a nursing home itself responsible for the sexual abuse or just the physical abuse of one resident to another resident, not the staff sexually abusing the resident, but resident to resident.
Smith: Well it’s like it says in this statement, which found the nursing home did not properly manage two male residents with histories of being aggressive and sexually abusing other residents. So that’s what it’s comes down to. Did they have knowledge?
Schenk: Right, so the question that’s asked is did the nursing home have actual knowledge of the residents committing abuse or constructive knowledge? And constructive knowledge is should they have known based on the evidence at hand? The nursing home may be liable for the actions of the residents to other residents where there is a pattern, a history, or evidence showing they have a propensity to do things and then the nursing home did not take appropriate steps to mitigate those actions.
Schenk: So that’s the important component, because no one’s omnipotent. I mean I feel like sometimes we beat on nursing homes all the time – they don’t have to prevent every single tragedy, every single injury, every single abuse. They couldn’t. They’re not a god.
Smith: Not to mention, and we’ve talked about this before, residents have rights. So they have rights. You could just lock to in a room and strap them to a bed that turns every two hours so they don’t get bedsores and they’ll be perfectly safe, but what kind of life is that to live? Liberty comes with risks and nursing home residents have liberties.
Schenk: That’s right. So it comes down to the level of care in revealing the propensity of danger with the residents and the level of care it took in preventing the potential risk in that. So that’s really what it comes down to. Just because somebody, a resident, beat on another resident doesn’t mean a nursing home is responsible, not necessarily. It has to do with the level of knowledge, either actual or constructive knowledge that the resident would do that held by the nursing home itself.
Smith: There’s something else that’s interesting about this article that I want to point out as well because I know that not too long ago, a few weeks ago, we did a video podcast on the CMPs – civil monetary penalties – and how toothless they can really be. I want you to consider in this case that the state health department in New York concluded that this nursing home failed to manage two men who had a history of sexually abusing other residents.
Schenk: And did abuse other residents.
Smith: And did abuse other residents – they fined them $16,000. That’s it. Once. No more. And just based on what we know, I mean I’d have to look more into this, there’s a potential that this is even reduced more, this 16,000. That’s nothing. That really is. And I think I remember the nursing home in question from the CMP podcast was an Illinois nursing home that they had made $5.2 million that year. So you can imagine that this nursing home in New York is somewhat similar – 5, 6, 7, 8, 9 million.
Schenk: But also at the same time, remember that there are different components to seeking justice, so even though the CMP doesn’t have much teeth, remember this family holds a civil right to sue this nursing home and be awarded compensatory damages, but also depending on the laws of the state of New York, punitive damages. So all is not lost.
Smith: No certainly, and this goes on their record. This goes on their permanent record, that they have a fine that they had to reach a settlement with the Department of Community Health in New York or whatever it’s called. And that’s not good.
Schenk: That’s right. Something else that’s not permanent is the length of each and every episode of the Nursing Home Abuse Podcast, that is to say we have reached the conclusion of this particular episode of the Nursing Home Abuse Podcast. You can check us out on Stitcher or iTunes where you can download the audio via MP3 or you can watch us on our YouTube channel or at our website, which is NursingHomeAbusePodcast.com. New episodes are available every Monday morning. We thank you for joining us and we will see you next time.
Smith: See you next time.
Thanks for tuning in to the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher, and feel free to leave us some feedback. And for more information about the topics discussed in this episode, check out the show website NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.