Generally, when a patient checks into a hospital, nursing home, assisted living facility, etc., they are under the impression that their medical condition, appearance, behavior, and recovery will be free from intrusion and unwanted visitors. For the most part, no one wants to be filmed or photographed on a hospital bed as they are suffering from a horrible disease or attempting to recover from an illness or injury. However, a recent event has highlighted the importance of privacy laws, specifically within nursing homes, and the reasonable expectation of privacy that residents should demand from their nursing home staff.

On Thursday, May 15, 2014, Clayton Kelly, a journalist from Mississippi, was arrested on allegations that he snuck into a nursing home and photographed the wife of Mississippi United States Senator Thad Cochran. Kelly, who is a political activist, has been a vocal critic of Cochran’s and a supporter of his challenger, Chris McDaniel, a state senator. Kelly is being held on $100,000 bond and is charged with exploitation of a vulnerable adult after he “illegally and improperly obtained an image of a vulnerable adult resident without their consent and for his own benefit,” according to a report from Madison, Miss. police. The alleged victim is Senator Cochran’s wife Rose who has resided in St. Catherine’s Village retirement home since 2000. She has progressive dementia.

This horrible act obviously raises a number of concerns with nursing home residents, as well as the administrative staff, across the country. How did Kelly manage to sneak into a nursing home and slip by nursing home staff? Did Rose Cochran know she was being filmed, and (obviously) did not express her consent? What rights to privacy does Rose Cochran have in a public nursing home? What legal causes of action does Rose Cochran have against Clayton Kelly?

Fortunately for Rose Cochran, Clayton Kelly was charged with violating a criminal statute in Mississippi, so that he will probably end up serving a jail sentence for awhile. Additionally, Mrs. Cochran may have a civil cause of action against Kelly as well, due to her civil rights of expectation of privacy, intrusion upon seclusion, and public disclosure of private facts. However, more importantly, Mrs. Cochran may have a strong case against the nursing home, due to her reasonable expectation of privacy as a resident of the nursing home.

Under federal law, Mrs. Cochran may have a cause of action against both the nursing home and Clayton Kelly. Initially, the Health Insurance Portability and Accountability Act (HIPAA) governs the disclosure of medical records and medical conditions to third parties, which appears to have been violated in Mrs. Cochran’s case. Moreover, the federal regulations that govern nursing home facilities’ licensing requirements require that each facility, in order to maintain their license, must:

  • Promote each resident’s quality of life. (42 CFR §483.15)
  • Maintain dignity and respect of each resident. (42 CFR §483.15)

There is a strong argument that a violation of a resident’s privacy, especially by an unwanted intruder, does not promote the resident’s quality of life and does not maintain respect for that resident. Additionally, the Medicare.gov website further states that: “Privacy: You have the right to privacy, and to keep and use your personal belongings and property as long as it doesn’t interfere with the rights, health, or safety of others.” Therefore, it appears that the nursing home is in violation of several federal requirements by its failure to protect Mrs. Cochran from Kelly’s intrusion and violation of her privacy rights.

Furthermore, most states have privacy laws governing hospitals and nursing homes, similar to the federal laws, that require certain requirements to be met in order to maintain their state license. For example, Virginia Code § 32.1-138(10) requires that each patient “is treated with consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs.” Thus, Mrs. Cochran may have a possible argument against the nursing home under state law as well.

Most importantly, however, is that when a patient or resident is admitted to the nursing home, the resident is generally required to sign an Admission Agreement or Residential Agreement prior to moving into the facility. This Agreement most likely contains specific provisions governing the resident’s right to privacy, expectation of privacy, and the staff’s protection from unwanted intruders. It is highly advisable that you research the terms of the Admission Agreement prior to your admission and demand that the resident has a reasonable expectation of privacy while living in the facility. By failing to provide a reasonable expectation of privacy as stated in the Admissions Agreement, Mrs. Cochran likely has a cause of action for breach of contract against the nursing home as well.

Ultimately, Clayton Kelly’s actions are reprehensible and should not be attributed to anyone else but himself. Mrs. Cochran will have her chance at justice, both criminally and civilly, against Kelly in the near future. However, this incident highlights the importance of a nursing home’s duties and obligations to protect their residents’ right to privacy and security concerns. If you or a loved one are currently living in a nursing home, please review your Admissions Agreement for your rights to privacy, as well as address any concerns with the administrative staff to ensure that your rights and expectations will be protected.