Videotaping to protect nursing facility residents: a legal analysis.

In recent months, the use of video cameras in nursing facilities has received an increasing level of attention. USA Today ran a front-page article on resident advocates’ efforts to place video cameras in residents’ rooms. In Maryland and Texas, legislation was introduced to establish the right of a resident or a family member to place a video camera in the resident’s room. In this journal’s November/December edition, Dr. Andrew Weinberg presented a case study involving the use of a hidden video camera. In Dr. Weinberg’s case study, a nursing facility resident had suffered more than 40 bruises, all of an unknown etiology, over a period of more than 18 months. Understandably concerned about these bruises and about other indications of inadequate care, the resident’s family surreptitiously placed a video camera in the resident’s room. Four weeks of secret videotaping revealed a quality of care (if it can be called care) that was consistently negligent and oftentimes malicious. Nurse aides told the resident to “shut up,” threw a pillow at her, and hit her. Staff members laughed at the resident and ate food from her tray. On several occasions, transfers were performed by only one staff member although a two-person transfer was advisable. Family members notified the facility administrator of the presence of the camera and the substance of the taped events. In response, the facility’s attorneys asked a local court to order the camera’s removal, but the court denied the request. The resident (and the camera) stayed in the facility and, according to the family, the quality of care improved markedly. A lawsuit was filed on the resident’s behalf against the facility and was settled, before trial, for more than 1 million dollars. Although the case study does not explicitly recommend the use of video cameras, the case study does intimate that videotaping in some instances might lead to an improved quality of care. Importantly, however, the case study also recognizes that videotaping raises significant legal issues, and, to date, those legal issues have not been resolved. The remainder of this article explores two legal issues — privacy rights and electronic eavesdropping statutes — that must be considered by anyone contemplating the use of a video camera in a nursing facility. Although these issues certainly are not the only relevant issues, they likely present the most legal danger to a prospective videotaper.