Determination
126
Minnesota
News Council
In the Matter of the Complaint of
St. Therese Home vs.
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
December 9, 1999
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Determination 127
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