Safety v. Privacy?
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues. He wrote a great article for the Cincinnati Enquirer about a recent Georgia case involving neglect at a SavaSeniorCare facility. The case weighs the safety and well-being of a nursing home resident with the alleged privacy interests of an employee. The court smartly sided with the resident. He first explains the underlying case.
Facts of the Case
James Dempsey was a resident in a nursing home owned and operated by the national for-private chain SavaSeniorCare. His son Timothy installed a video camera that recorded in five-minute increments onto a memory card. Timothy placed the camera across from Dempsey’s bed. It was focused only on Dempsey and his belongings. Dempsey’s roommate’s only appeared on camera when he came over to Dempsey’s area.
Dempsey died in February 2014. The camera had recorded about 400 hours of video. Timothy had visited Dempsey the night before his death. Dempsey had been doing well, so Timothy found his death to be unexpected. Timothy requested an autopsy. Later, after Timothy finally viewed the video, he forwarded it to law enforcement.
Police then arrested Wanda Nuckles. Nuckles is an employee of the nursing home. Police charged her with one count of depriving an elder person of essential services and one count of concealing the death of another.
“[F]or an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy[.]”
Nuckles argued that the exception didn’t apply because Dempsey wasn’t the owner or occupier of his room, and because she did have an expectation of privacy. The court disagreed on both counts.
In the court’s view, Dempsey qualified as an occupier of his room. The court noted:
“The evidence at the hearing showed that Timothy signed paperwork in connection with Dempsey’s admission to the rehab facility, and the facility received payment for the services and accommodations it provided to Dempsey, both from insurance and from his family. Dempsey moved into the facility . . . and stayed in the same room until his death on February 27. He stored his personal items in the room, including clothes, toiletries, a blanket, and photographs. Under these circumstances, Dempsey must be considered an occupier of real property within the meaning of the Security Exception . . . .”
Additionally, the Court also noted that the expectation of privacy changes depending on the person. So, Dempsey may have an expectation of privacy in his room while Nuckles, as an employee, did not. As the court noted:
“The evidence presented at the hearing demonstrates that Nuckles never exercised exclusive control over Dempsey’s room and never used it for personal reasons. She testified that she did not pay any rent for the use of the room; never slept or changed clothing there; never used Dempsey’s bathroom; and she never kept her personal items in his room. Instead, it appears that Nuckles was engaged in her work duties at the time the recording was made, and there is nothing to suggest that she would not have been subject to supervision or observation by other rehab facility employees in the performance of her duties.”
Sometimes the law comes down to common sense. Here, the court found that a nursing home resident’s safety outweighs an employees’ expectation of privacy at work. Families can record activity for their loved one’s own protection. And caregivers cannot hide neglect or abuse behind a legal technicality.
There must be accountability. We can no longer allow the neglect and abuse of our most vulnerable citizens. Each generation must protect older generations. It is the right thing to do. I’m glad the Georgia Supreme Court agrees. I hope this gives peace to the family.