Nanny Cams in Georgia Nursing Homes: What the Law Says
Is your loved one truly safe in their nursing home, or are they being watched? This episode unpacks the heated debate around the legality of nanny cams in Georgia nursing homes, focusing on privacy concerns versus the need for surveillance to ensure safety and prevent abuse. The laws and ethical dilemmas surrounding the use of these cameras are complex and stir strong emotions on all sides. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Mike Prieto, Esq. to discuss the intricacies of Georgia law, the rights of residents and families, and how such monitoring tools can be a game-changer in elder care.
Schenk:
Are nanny cams allowed in Georgia nursing homes? Stick around.
Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode today or this week. Rather, we’re going to be talking about the use of nanny cams in nursing homes. What are the issues related to privacy with either roommates or the staff that come in to help your loved one?
And whether or not you can, if you wanted to put that nanny cam in your loved one’s room, but we’re not doing that alone. We’re doing that with a fabulous trial attorney, Mike Prieto’s law firm. In the past few years took on a case in which the footage of a nanny cam was critical to the case.
And that led to actual criminal charges against the facility or the staff involved in the incident. And we got, a Supreme court decision that which we’ll talk about in depth in the show which allows essentially the use of nanny camps in the state of Georgia.
As I mentioned, it’s all about nanny cams and in the state of Georgia, how we got to where we are with the status of that, but we’re not doing that alone. We have the fantastic trial attorney Mike Prieto. Mike Prieto, a Loyola University law graduate, began his career as an assistant district attorney before joining two large defense firms in Atlanta.
In 1999, he shifted to plaintiff’s practice focusing on cases against skilled nursing facilities. With one of Georgia’s largest long term care practices, he’s recovered millions for his clients. Mike has appeared on major TV shows and been quoted in top newspapers. A veteran, he serves as a deputy state judge advocate for the Georgia Army National Guard.
And we are so happy to have him on the show. Mike, welcome to the show. Thank you. Thanks for having me. All right. I always say consistently, this is like the nursing home podcast drinking game, but every time I say this, you have to take a drink, which is that Mike Prioto is one of the attorneys on the Mount Rushmore of Georgia nursing home abuse.
Are nanny cams allowed in Georgia nursing homes?
Schenk:
So I’m it’s a coup to get you on. I’m glad. And specifically for this topic, because I think that you are the guy. So the first thing is this just from a 40, 000 foot view, and then we can get into the actual case if you want to. But what is the current status of the family of a nursing home resident or nursing home resident him or herself of being able to put a camera in their room?
Prieto:
So it is 1000 percent legal to have an open camera. Or to have a hidden camera in a room within the state of Georgia. Despite numerous attempts on the part of the Georgia Healthcare Association to codify the existing case law. And we’ve been down to the Capitol probably three separate occasions in which they’ve tried to gut the holdings of the Supreme Court in their attempt to codify it.
And they were making significant changes and restrictions. But right now, it is completely legal. In fact, we’ve had numerous claims in which we’ve had providers who are some of the big players who have said, look, we don’t allow cameras and they can’t do that because, when you think about the fact that this is their home, right?
You get to use, You get to use that address to vote, to have an ID to receive mail. It’s their home. That’s why they’re called residents, not patients. And I really applaud the judicial system, our appellate courts. for finding the way they did because, the case was tragic. It was a horrible case.
Discover strategies for safeguarding nursing home residents from common risks and ensuring their well-being in long-term care settings.
What are the considerations for privacy of roommates?
Schenk:
I guess from my understanding then that are at least in this, and again, everybody that’s listening, that’s outside of the state of Georgia, this is specific to the state of Georgia. Wyoming might have a different, take on nanny cams and cameras and nursing homes, but this is particular to Georgia.
So just everybody keep that in mind. Okay. As of this time, we can have a camera in the room. What are some of, if any, things to keep in mind? So for example, sometimes people might say I’m worried about putting a camera in my grandmother’s room because she has a roommate or I’m worried because it might capture other people and I don’t want to violate other people’s privacy.
Is there any, Anything like that anybody should keep in mind.
Prieto:
You’ve hit on the really important issue, and that is that if it is a room that is shared with someone else, the camera has to be pointed directly at your resident, your family member, so as to not, Now, the second part of the issue that you pointed out, which is somebody else coming into the room, it could be that a resident, it could be staff members, the Supreme Court in Georgia really focused on that and said that, They don’t have an expectation of privacy, right?
Because so it’s really a good segue into the holding of the Supreme Court. And let me give you some of the setup. So this case originated from a civil case.
Learn about the critical role of reporting and combating nursing home fraud to protect residents and resources.
How did the Dempsey case discuss the right to privacy in nursing homes?
We have family that came to see us, the Dempsey family. And they came to see us because Mr. Dipsy had a fall, went to a skilled nursing facility, and was there to rehab.
He had a short stint back in the hospital due to dehydration, and then he was then remitted to the facility. He was, Coherent had some he was living alone. He was literally originally had a fall when he was making biscuits for himself of all things. Oh, wow. So this is not a demented guy who was living at a facility.
This is a guy who truly went there for rehab. So he started complaining about people coming into his room during the middle of the night. He was complaining about his glasses going missing, his clothes going missing, and so the family brought in a sitter, and they didn’t want to have a sitter 24 7. It gets really expensive.
And so they discussed the fact that they would put in a nanny cam. And this camera was actually a hidden camera that was inserted into a clock radio. So no one knew it was there other than Mr. Dempsey, his son, who was his power of attorney, and the sitter that they had during the day. There was a day that that Tim, his son, had gone to see Mr.
Dempsey, and he was doing just fine. He was literally going to be discharged within 48 hours to return home. He gets a phone call the next morning saying that Mr. Dempsey had passed. So he reaches out to law enforcement and says, Hey, I think we need to get an autopsy here because I saw him yesterday and he was doing just fine.
Explore the tactics nursing homes use to cover up abuse or neglect in this detailed podcast episode.
Autopsy shows that he died of natural causes. And that was it. So a couple of weeks later, he goes back and is reviewing the nanny cam footage and what he saw. You can see on YouTube from some of the depositions, but. He was hitting his call light, saying he had difficulty breathing. They would come into the room and say, Mr.
Dempsey, stop hitting your call light, there’s nothing wrong with you. And he was saying, help me, I can’t breathe. He’s given no attention whatsoever. And eventually, someone walks in, and he’s dead. And they then start doing C. P. R. And as well as I once you start C. P. R. You cannot stop.
And they will do it for a minute. Then they’ll leave. They’re laughing. They’re cutting it up. They can’t get the oxygen to work. And on the video, you actually, at one point, hear them say when they call 9 1 1, and they walk in and, to the building, and hear the nurses say, here they come, and then they both go over there, and they have the ambu bag, and they’re doing the breathing, and they’re doing chest impressions.
As though they’ve been doing CPR the entire time. Complete fabrication. We fast forward, and we file suit, and I can’t explain to you why. It was, the video was clearly discoverable. We would not have had grounds to withhold the video, but we were aggressive in taking the fact that fact witness depositions before they ever served discovery on us.
Understand your rights regarding the use of hidden cameras in nursing homes to ensure the safety and care of loved ones.
We go into the video we go through in the deposition, and I’ll tell you, this is this was a truly Matlock moment for me. We go through the first part of the deposition, and they’re testifying that they gave this heroic effort. They did everything right. And then we took a break in the middle of the deposition, and we started setting up computer screens.
And it’s, I shouldn’t curse to say what I actually said to them, but they’re like, what is this? What is this from my opposing counsel? You know what this is. It was a video and your witness is a freaking liar and they tried to stop the deposition. We had to get the judge on the phone. Deposition went forward and we were able to then cross examine them.
Are there limitations to how nanny cams can be installed?
Schenk:
Okay. So to to be clear, they hadn’t requested anything. You hadn’t given it to them. So they went in without any, not even the attorney knew that video existed, what were the grounds that they were giving about not why do they want to hold The deposition what’s, what grounds do they have for that?
They didn’t. They didn’t. Okay.
Prieto:
That was the whole thing. They said, the defense counsel said, we may now have a conflict of interest. I’m like, oh no. So we got the judge on the phone and luckily we had a really good judge. And the judge said this is cross examination and the deposition’s going forward.
And it was a bloodletting after that. Alright, so that sets up the case. The case eventually resolves. But what’s interesting is when we saw these facts, we actually took this to the police department and said, This is a crime. We feel like we need to report it. And We took it to the police department.
They said, no, that’s civil. We took it to the medical examiner and said, Have you guys seen this? They said, yeah, we don’t care. It’s civil. And so I’m like, all right, that’s fine. We’ve done our duty. We’ve reported it. And then we actually gave an interview with Andy Perotti at 11 Alive. And once that came out, all of a sudden people had interest.
Listen to a podcast episode about the signs and prevention strategies of identifying elder abuse on the Schenk Smith website.
We received a telephone call from the DA’s office saying, what the heck is this? Why didn’t you report this? And we’re like, hey, we did. And let me tell you, to her credit, Sherry Boston is a phenomenal district attorney, and she took the bull by the horns when it came to her attention. She wound up charging these nurses, there were two nurses in the CNA two of them were charged with felony murder, and the underlying felony being elder abuse.
And so that set the stage. Obviously, the video is very important, and so I actually have the opinion here, and I’m going to give you some law if that’s okay.
Schenk:
Yeah, please.
Prieto:
All right. So we had briefed the admissibility. of the video. And that kind of bounced all around with defense counsel. And we finally got a ruling saying it’s coming in.
And at the trial court level, you got the order.
Prieto:
Okay, civil case. And as soon as that happened, the case resolved, obviously, because the defendant could not allow that to be in evidence. Now, the criminal matter it, let me take a step back and tell you, we were, we knew that a certificate, Of immediate review would be granted on that.
And we were really concerned about having our name associated with this issue going to the appellate court. And the reason for that is the moment that it comes up in a court context. It’s going to bring in folks from the Georgia Healthcare Association, from AgMutual, from the Georgia Defense Bar. It would have been an all out war, and it would have become more of a political issue than a substantive issue.
Engage with programs aimed at improving the lives of older Americans through the Administration for Community Living.
designed to really help our elder. And so that was part of our consideration because we knew that it would also be an issue in a criminal context. We did some research. We found out that videos, even surreptitious videos, have been utilized in three different court systems to prosecute people crim for elder abuse.
And skilled nursing facilities. We really felt good about that, that Carroll County had done it, Gwinnett County had done it, and DeKalb County had done it.
Schenk:
How far along, when you got that order, Mike, how far along was the criminal proceedings? In the civil case, when you got the order saying you can come in, how far along was the criminal proceeding?
Prieto:
So that’s a great question. They’ve been arrested. That’s it. Oh, okay. That’s it. That’s it. But we knew it was coming. And in all candor, these were nurses. We knew they weren’t going to have, they’re not going to go out and hire top notch criminal defense lawyers. But, to their credit, their court appointed lawyers came up with good arguments.
They narrowed in. The basic premise is that it is illegal to have surreptitious videos of people without consent of all. And so that’s your basic framework. And then there are exceptions. And the, I have to put on glasses cause I’m blind.
Discover the legal initiatives targeting elder abuse by visiting the Department of Justice’s Elder Justice Initiative.
Schenk:
Looks good.
Prieto:
Yeah. Yeah. All right. I went through and pulled some of this OCGA 161162 said subsection two says that it is unlawful for any person through the use of any device without the consent of all persons observed to observe, photograph, or record the activities of another.
Which occur in any private place. and out of public view. That’s pretty strong language. Sure. Back when we were doing our analysis, we found that the Georgia videotaping statute is actually more restricted than the federal, which is you wouldn’t expect. In all honesty, I think a lot of this when it was passed by the legislature was designed to stop perverts from trying to video folks that shouldn’t.
Sure. And so that makes sense. But our Supreme Court really got it right. The exception. The exception that we relied upon was the security exception and the that’s in OCGA 16 11 62 2B, and there’s really a four part analysis that has to occur. One, that the video has to be made by the owner or occupier of real property, two, that it has to be used, for security purposes, crime prevention or crime detection.
Three with a device to observe, photograph or record the activities of persons who are on the property or approach the property thereto. And four, where there is no reasonable expectation of privacy. And so the criminal defense lawyers said hold on for a second. He wasn’t an owner or occupier, which right.
For comprehensive healthcare policy and regulatory information, refer to the Centers for Medicare & Medicaid Services.
So he obviously didn’t own it and they found some case law about what it meant to occupy. And to be honest with you. If I had any criticisms about the decision or the opinion from the Supreme Court, that would be it, and I think it really they get to where they need to go by saying, looking at factors such as the fact that he made That he had his personal stuff there, his toiletries were there, his clothing was there, so it’s superficial, but they really could have gone to the federal recs, to be honest with you, for all the things that we talked about, that it is their home, that they are residents, they’re not patients that they can use it to vote, that they receive mail.
Schenk:
They have a whole slew of rights associated with being a resident in that facility.
Prieto:
Yeah, correct. Because for all practical purposes, as well as legal purposes, it is their home for short term rehab. So the court. Eventually says, look, he obviously was an occupier, may not have owned it, but was certainly an occupier. The second big thing, which I thought was interesting the court really does an analysis based upon the argument from Ms. Knuckles, stating that she had an expectation of privacy. In his brain,
Schenk:
Miss Knuckles being one of the CNA is or one of the nurses. Okay.
Prieto:
And the court really slams that very quickly says you can’t have an expectation of privacy in his room.
And they said did you go to the bathroom there? And he uses bathroom. Did you ever change your clothes in his room? Or were you just there for work? And all that’s in, in the record, and the district attorney really hammered that, and did a great job at evidentiary hearing on this issue, and she said no, I didn’t do any of those things.
All I did was go in his room to provide services, and the Supreme Court really focused on that and said, if that’s the case. Then the expectation of privacy had to be his, not yours. And so it was his to do with as he chose. And based upon that, the court really said that absolutely this comes into evidence.
And even though we don’t have a codification of a specific right to do it, It is found within this Knuckles v. Georgia case, and so that’s really what we rely upon, and I’ll tell you, it’s interesting because we’ve had, when, we’ve had people who have attempted to put cameras in, the skilled nursing facility says, hey, we don’t allow cameras, and we’ve notified the Ombudsman, and the Ombudsman is now acknowledging this as a right, And within the state of Georgia and they’re citing folks for not allowing them to do it.
Understand the psychological impact of aging on cognition and emotion by accessing this study from SpringerLink.
What regulations are Ombudsman using to enforce the right to use nanny cams?
Schenk:
That’s interesting. I was actually going to ask about that. So do you know offhand which of the, which reg or which Georgia reg the ombudsman are using for this citation? What? Because I understand the argument of within the federal rights within the Georgia rights. It’s just implicit, not explicit that you could have a camera because there’s no explicit law that says you can have one. So how are the ombudsman able to cite on that?
Prieto:
I will tell you we’ve had, we had two instances in which they were going to be cited. I heard from defense counsel and general counsel. and they consented to avoid the citation.
Schenk:
Of course. Yes. But I guess as of right now, then it is like that.
It’s like there’s no explicit right. But It just makes sense based on the all the rights that you have that you can record in your own place, especially now after this particular Supreme Court decision. That makes sense to me,
Prieto:
What was interesting is the proposals from some of our legislators who are all about you patient’s rights, as they call them in skilled nursing facilities, and I don’t want to call anyone out by name, but one in particular.
And in the hearing before the legislature, I was like, first of all, they’re not patients, they’re residents. Let’s start there. This is their home. There was an attempt to put significant limitations. In fact here’s what they attempted to do. They attempted to say we want a law that says they can record, but the recordings can only be used for law enforcement.
They cannot be used in civil litigation, and they cannot be used by the state of Georgia to find the facility, but yet that was an attempt to codify existing law.
Gain insights into the challenges and opportunities of electronic health records in nursing practice through this thesis available at LSU’s digital repository.
Schenk:
There’s always that. I feel like there’s always that struggle. We talk about this a lot on the show. It’s like on the nursing home has two sides of their mouth a lot of times.
And this isn’t this isn’t something that’s, I’m not saying something that’s maligning the industry. We need nursing homes and we can all agree about that. But on one end of the spectrum, it’s we provide medical care where our nurses are top notch. We do all this medical work. On the other hand no.
Like you have a right to fall. You have a right to do what you want and, suffer with blah, blah, blah. You’re a resident, you’re free to do whatever you want. And it’s just, they’ll use, depending on the situation, the facts they’re arguing from one or the other. You can’t, it can’t be one or the other, or you can’t have both in other words.
So I get what you’re saying. Yeah. They shouldn’t be able to have cameras, but on the other hand, they have a right to fall down if they want to. Does it make any sense?
Prieto:
My big argument that I kept saying is, a lot of these facility owners and before I get there, my perspective is a little bit different because I actually worked in a nursing home as a CNA when I was in college.
And I will tell you, we do need nursing homes. Because there are times when the needs of our loved ones exceed the scope of what we can do for them, and we have to have a place so that they can get help. And there is a reason for them, and I’ve met some of the most special people in my entire life who work at nursing homes. I think it’s a calling and I celebrate those folks. And if you talk to those folks, they’re gonna say they’re too big issues are that they’re underpaid and overwhelmed. And so to me, a nursing home case is it’s much about corporate malfeasance and corporate greed and the fact that it is a foreseeable occurrence for someone to get substandard care because of financial decisions that are made by folks who are flying around in their own jets.
That’s, to me, that’s really what gets to it. The other big issue that I thought was a little bit disingenuous in the arguments not to allow recordings is the fact that it preserves the truth and if you hear many of the defense counsels in these cases or many of the providers say that there are a lot of very frivolous claims.
If they’re frivolous claims, what better way to protect yourself than to allow recordings?
Review the legal intricacies of elder law in military settings in this comprehensive document from HeinOnline.
What is the current status of legislation of nanny cams?
Schenk:
Exactly. So what is the what is the status now? And you may have mentioned this, but the status now is, and this might be just a perennial thing in Georgia, but the status now is at the the nursing home industry in Georgia is trying to get the legislation or just as trying to establish legislation, as you mentioned, which would limit or eliminate the ability to have nanny cams, but nothing has passed yet. Correct.
Prieto:
So they tried it three times, and they didn’t get anywhere with it, and it’s gone silent at this point. I think that they were attempting to utilize this potential onslaught of litigation that’s associated with it to scare the legislators into passing it. That hasn’t happened.
But I will tell you, we advise everyone to put in a nanny cam. Just to protect them, because oftentimes the overall experience for our loved ones at these facilities is not that, that they’re being dropped or they’re being punched. But a lot of actions from the care providers that are overworked takes away that dignity for the resident. Does that make sense?
Delve into the challenges of integrating technology in education for the elderly, as discussed in this article from SAGE Journals.
Schenk:
Yes.
Prieto:
Yeah, they go on very quickly. And instead of saying, Mr jones, come on, it’s time to eat. Let me help you eat. And instead they put the tray down, they give him three spoons full of food and they’ve got to go. And that’s the end of it. So You know, I think that this kind of levels the playing field to say, look, let’s go in here.
Let’s do it right. Because there are facilities that do it right.
Schenk:
I agree. And I think that, this might not be an exact analogy, but the use of body cams and for law enforcement, like you’re, you, there’s no question now what happens on these stops because there’s a body cam good or bad.
And luckily most of the time it’s just, It reinforces what we already know that they’re pretty much doing what they’re supposed to do, but when they don’t, we have a record of it. And it’s, it would be the, it’s the same thing. Or at least that would be
Prieto:
The goal is to provide excellent care.
Schenk:
What better training tool to have, what better way to hold yourself accountable. That’s exactly right. Mike, thank you so much for coming on the show and talking to us about this. I really appreciate you sharing your knowledge.
Explore recent advancements in elder law and ethical considerations in estate planning through this research published on Taylor & Francis Online.
Prieto:
Thank you so much. I appreciate you inviting me.
Schenk:
There folks, I hope that you found this episode entertaining as well as educational, informative even.
If you have any suggestions for topics that you would like for me to discuss, please let me know. If you have any ideas for guests that you want me to talk to, please let me know that as well. New episodes of the nursing home abuse podcast come out every single Monday, wherever you get your podcasts from including YouTube and the website, nursinghomeabusepodcast.com. That’s right. You can even watch the nursing home abuse podcast, which I’m not even sure if that makes it a podcast because you can watch it. It’s a show. I guess show would be appropriate. I don’t know. Anyway, new episodes every Monday, everybody. And with that, We’ll see you next time.
Guest Info: