Determination 126: St. Therese Home v. WCCO-TV
Participants included the complainant, Dave Bredenberg, administrator of St. Therese Nursing Home, and Jim Williams, Director of Communication for the Minnesota Health & Housing Alliance. WCCO-TV chose not to attend the hearing, but sent a written response to the complaint.
Background: In early 1999, WCCO began investigating a story on deficiencies in the state Health Department’s ability to monitor complaints about the quality of care in nursing homes. The series focused, initially, on the complaints of a niece of an Alzheimer’s patient; the niece contended that St. Therese nursing home neglected her aunt’s care and that the Department of Health failed to investigate her complaints promptly and adequately.
WCCO took an undercover camera into the nursing home and videotaped residents in a common area of the dementia unit. One resident, Charlie Winkler, drew the attention of the reporter because he had a bruise on his face as a result of an accidental fall days earlier. The photographer documented his injuries on video that was later used in the broadcast series, which aired July 22 and 23.
Winkler’s daughters were upset to see their father on television, without their knowledge and approval. Winkler’s daughters sent a letter to the Council in support of the position of the nursing home, but did not join in the complaint.
Complaint: Bredenberg charged that WCCO:
1. Entered the nursing home (a private residence) and photographed a (vulnerable adult) resident without permission, thus invading his privacy.
2. Produced a story that was inaccurate and misleading and resulted in a picture of the nursing home as providing inadequate care:
a) Presented the complaints of the niece without mentioning the results of Health Department investigations that denied the accuracy of those complaints;
b) Created the impression that two residents had died as a result of neglect when they had, in fact, died from natural causes;
c) Reported that a 96-year-old resident had had a significant weight loss without reporting that weight loss often accompanies the dying process and that the nursing home had taken steps to minimize her weight loss.
Response: WCCO responded:
1. The station appropriately reported on Winkler’s condition after discovering that the state had cited the home for negligence in connection with his fall. The producer of the series had extensive phone conversations with one of Winkler’s daughters. The station says the daughter told the producer she believed her father’s fall contributed to his death and said she thought all nursing homes should have surveillance cameras to document such incidents. The station did not, however, report this opinion, but instead relied upon the documented findings of the state.
2. The series was not inaccurate or misleading and did not create a misimpression of the nursing home, despite Bredenberg’s refusal to grant an on-camera interview (he did participate in off-air phone interviews):
a) The niece brought to the station many complaints about her aunt’s care, but the station broadcast only those in which a public record supported her claims. The story accurately reported results of several state investigations and included statements that St. Therese Home does not have a history of serious violations and that the state did not consider the nursing home to be a “chronic poor performer.”
b) The series did not characterize the deaths of the two residents as caused by inadequate care, but only reported the complaint process in chronological order and the fact that both residents in question died shortly after the Health Department investigative reports came out.
c) There is ample documentation to support the niece’s contention that her aunt experienced a significant decline in body weight, including an April 2 Health Department report. While the nursing home now says this weight loss was the result of the dying process, in April it denied a significant weight loss had occurred and then attributed the problem to incorrect calibration of scales.
Addenda: The daughters of Winkler responded to WCCO’s response by sending a letter, dated October 20, to the News Council in which they wrote, in part:
“[The News Director] stated that WCCO did not violate Mr. Winkler’s privacy by taping him. Mr. Winkler was not in a public place. He was at his home! Your reporter was not given permission to take pictures inside St. Therese. She would not make it known [that she was there videotaping] before the report aired because she knew it would not be allowed by the family.
“We want to make it clear that we believe the incident [that was reported] about our father was an unfortunate accident. We never had any intention of filing a complaint against St. Therese. We were not told about or asked about filming our father by anyone from WCCO-TV. We are greatly offended by this invasion of privacy.”
Discussion: Bredenberg took issue with WCCO’s statement that it videotaped Winkler in a public space within the nursing home. He said the nursing home is a private residence and there is no public space within a private residence. While visitors are welcome, he said, all are asked to sign in and out (though it is not mandatory) and neither the reporter nor producer signed in. He said the home would have asked the reporter to leave the premises if it had known she was there.
Bredenberg said residents have a legal right to privacy in long-term care facilities and it is part of St. Therese’s mission to protect the privacy and dignity of its residents. Jim Williams, Director of Communications for the Minnesota Health & Housing Alliance, speaking on behalf of the nursing home, said a vulnerable adult (a legal designation) has rights that a nursing home has a duty to protect, including a right to privacy. He said that no one can film within a facility without permission.
Bredenberg said negative stories about nursing homes are common and follow a pattern that the WCCO story also followed. They typically employ a visual analogy to a prison: grainy, out-of-focus, black-and-white images; shots down long corridors; images shot through fences or closed doors or with fences in the background (chosen to suggest prison bars), repeated shots of wheelchair wheels. He pointed to one scene in which the reporter is holding a copy of the Health Department report that for no apparent reason has shadows like bars falling across the page. He pointed out that all positive statements made by the reporter during the report were immediately followed by rebuttals.
Bredenberg said that Winkler’s accident was an unfortunate incident that the nursing home had itself reported to the Health Department (as part of mandatory reporting procedures); the daughters had not made a complaint. As such, it was unrelated to the purpose of the news story, which was to examine lax investigation of complaints to the Health Department.
Gary Gilson, the Council’s executive director, summarized the position of WCCO, that the story was not about St. Therese home, in particular, but was really about the state’s inability to adequately monitor all facilities, which is clear from the many quotes the station gathered from state officials admitting as much. The station says that it did not sensationalize the story, but eliminated opinion from the piece and relied purely upon documented reports of lapses of care that led them to question some of the nursing home’s contentions. Further, WCCO said, its reporting of the story was hampered by the fact that Bredenberg declined to be videotaped.
Bredenberg said he refused to go on camera because he didn’t trust the station and he thought the producer would bring in a hidden camera to videotape the facility when she came to interview him. He said he did spend 20-30 minutes on the phone with the producer and tried to put the incidents in question into context. He said when the producer initially called to tell him she was doing a piece on the Health Department and wanted a local perspective he said no. She called three or four times, giving him different reasons why he should appear on camera, and he would not agree. At no time did she tell him she had entered or would enter the building to videotape. Bredenberg said he never spoke to a reporter, only to the producer.
After the series aired, the nursing home checked the logs and did not find any WCCO sign-ins. No one on the staff or in the dementia unit knew when the station’s staffer might have been there. Some Council members found it troubling that the nursing home did not know who was in the facility. Bredenberg said the staff does not scrutinize visitors, that the nursing home is a home and they want it to have a comfortable, welcoming atmosphere. He said there had been times when people had acted inappropriately and had been asked to leave, but a reporter’s mere presence on the premises does not constitute inappropriate behavior.
Media member Nancy Conner asked if camera use, per se, was allowed. Bredenberg said the home had written guidelines: taking pictures of relatives is not a problem, but when taking pictures of anyone outside the family the photographer would have to get permission and a signed release form and have to explain how the photograph would be used.
Bredenberg was asked if Winkler was capable of communicating his consent. Bredenberg said Winkler was on the dementia unit and no one on that unit is in a position to give informed consent.
Williams was asked how St. Therese home compared with other nursing homes in Minnesota. Williams said that there have been well publicized cases of troubled homes, but that St. Therese is not among them. Media member Dave Hage pointed out that the Health Department had upheld three complaints against St. Therese home in a short period of time. He asked if this was unusual. Williams said no, it depended upon the deficiencies, that some are more significant than others. Bredenberg explained the Scope and Severity Scale by which every deficiency is measured and said that the St. Therese home deficiencies were not severe.
Media member Pia Lopez asked Bredenberg and Williams to step outside their own experience for a moment to consider how, if a news organization wanted to do a report on nursing homes and state regulations, it might do such a story and get images.
Williams said he has 10 years of experience working extensively with the media, but this was the first time he’d known of a station “violating people’s rights… If a person with decision-making authority says, ‘Come on in and film,’ then they have the right to do so. It’s no different from a private home under the law.”
Bredenberg said he had worked with two film crews at previous nursing homes doing different kinds of stories and that they had had good working relationships, so he had allowed them to come in.
Council members asked Bredenberg to clarify aspects of the three Health Department reports. Bredenberg said the reports were quoted accurately in the news story, but that the findings were not as significant as they might seem to someone who did not understand the complex and legalistic language used by the Health Department. For example, he spoke to the producer at length about the definition of “significant weight loss,” which state regulations define as a loss of five percent within one month or ten percent within six months. The resident had a seven percent weight loss in three months, which the surveyor decided to judge as a violation, although the nursing home contends that it was legally in compliance and it had documented efforts to help the resident maintain her weight.
Public member Rachel Quenemoen asked if a delay in the Health Department’s investigation was an issue in any of the cases cited in the report. Bredenberg said it was not (Bredenberg disagrees with the niece’s belief that her 96-year-old aunt died from poor care; the death certificate lists the cause of death as natural causes).
Public member Jon Schroeder asked Bredenberg and Williams to comment on WCCO’s contention that this story had a different purpose from the typical nursing-home exposé: to help people with vulnerable relatives who need to move into a nursing home decide on a home, and explain to them how to file a complaint if there are problems with care.
Williams said the station got that aspect of its story right: complaints to the Health Department do take too long to be investigated and resolved. There are new federal mandates to shorten that period but the Department simply does not have the number of people it needs to conduct investigations within the time the new legislation requires. Williams agreed that there was some public service value to the series and said he could understand why the station needed examples to illustrate its story.
Bredenberg said he had no doubt that the story had public service value and he had no complaint with the second part of the series, except that many people didn’t see it and focused on the first part, the St. Therese portion.
Bredenberg said the impact of the story increased over time. Within an hour of the report airing on July 22, the nursing home received a bomb threat from a person who mentioned seeing the WCCO story, and the residents had to be evacuated. A few days later, a doctor told Bredenberg that a family had decided to place an elderly member at a different home, one that the doctor had not recommended, because they saw the report. Later, when the nursing home engaged in fundraising for the dementia unit, it received several angry responses to its appeal, all mentioning the WCCO story.
Bredenberg said he brought the complaint on the part of the family of Mr. Winkler, the staff of the nursing home and the other residents. “It’s our duty to protect our patients. I’m just trying to do the right thing.”
Deliberation: Media member Elizabeth Costello, a television reporter, questioned the use of a hidden camera: “I’m not saying the story shouldn’t have been done… but the hidden camera is different… Using a hidden camera in a nursing home is much different than in a Food Lion case. A nursing home is someone’s private home. I know, as a journalist, that you can’t take a camera into someone’s home. That’s what concerns me.”
WCCO’s contended that it did not create an impression that the incidents in the complaints against the home caused the residents’ deaths. Costello disagreed. At least in one incident, she felt the report did imply that was the case. She also said it was clear to her that the family did not give permission for their father to be taped.
Media member Tony Carideo asked if it was possible to invade the privacy of a dead man. Monika Bauerlein, another media member, pointed out that while privacy is a new right in Minnesota, that is a legal discussion and the News Council is concerned with the ethics of the case, not the law. “Our decision is made on our own moral judgment and our professional standards, which may be different from what the courts would say.”
Bauerlein said she did not feel the story was sensationalized: it had no scary music behind it and it did not show people in embarrassing private moments.
Pia Lopez asked if the images couldn’t have been gathered in another way, for example, as Williams suggested, by asking the Winkler family for permission. But Rachel Quenemoen wondered what the point was in seeking the images [of Winkler] in the first place. The focus of the story was on tardiness of investigations of complaints, but there had been no complaint filed in the first place, only an incident report.
Public member Tom Keller was concerned that the nursing home’s deficiencies were not put into context within the nursing home industry or within the context of that one facility.
Media member Kathleen Stauffer believed WCCO was justified in examining Winkler’s case: “I’m troubled that he was a vulnerable adult. The community needs to look out for vulnerable adults… For someone to be in the visiting room and not be asked who they were or why they were there, that’s a problem. They could be there to do damage.” She also thought that Winkler was portrayed in a dignified way.
Public member Neil Neddermeyer thought it made a difference that Winkler was filmed in the dining room or day room and not in his bedroom or bathroom. “An argument could be made that because the people coming in to film were not stopped, that they might have felt it was a public place.”
Neddermeyer said, “WCCO was not unfair or inaccurate. They pointed out some things that can happen. The hidden camera was used respectfully and he was not victimized.”
The Vote:
1. On the complaint that WCCO invaded the privacy of a nursing home resident, the Council split event, 10-10. the complaint was not upheld.
To uphold the complaint: Bailey, Cleary, Costello, Diaz, Hage, Neddermeyer, Quenemoen, Reister, Schroeder, Shulstad
To deny the complaint: Bauerlein, Carideo, Conner, Groeneveld, Johnson, Keller, Lopez, Scales, Stauffer, Williams
Presiding: Stringer
Recused: Shelby
2. On the complaint that WCCO created an inaccurate and misleading impression of the nursing home, the Council voted 13-6 to deny the complaint.
To uphold the complaint: Bailey, Diaz, Keller, Quenemoen, Reister, Shulstad
To deny the complaint: Bauerlein, Carideo, Cleary, Conner, Groeneveld, Hage, Johnson, Lopez, Neddermeyer, Scales, Schroeder, Stauffer, Williams
Presiding: Stringer
Recused: Shelby
Tags: WCCO-TV