A jury ruled for WLOS-TV Asheville, N.C., and a former investigative reporter in a trespassing claim. Even so, the winning lawyer finds a note of caution in the victory.
Havon Inc., parent company of assisted-living facility Pleasant Cove, filed a civil suit following a May 2001 undercover investigation by the station into allegations of mistreatment of mentally disabled patients.
The investigation resulted in a three-part news series and the facility's downgrading. Pleasant Cove eventually lost its right to admit patients.
In May 2001, Amy Davis, then a reporter at the station, was escorted into the facility by a supervisor in charge, who was concerned about patient care. Davis took video of medical records and of some patients while they slept.
The patients' faces were obscured, names were redacted, and the medical records were not identified when the series aired in July on the Sinclair Broadcasting station.
Havon sought $500,000 in compensatory damages and $10 million in punitive damages on behalf of some of the patients. Havon dropped its damage claims and all but the trespassing claim before trial.
The jury concluded that the supervisor had either the authority or the appearance of authority to permit the access.
While the station won on the trespassing charge on the strength of having been invited in, station attorney Gary Rowe had some concerns about possible invasion-of-privacy issues. In the future, he says, he would discourage stations from videotaping private, confidential medical records "if you can avoid it." The station also filmed a nude patient who had soiled himself and appeared not to have been cleaned for several hours. "That was very impressive in terms of the investigation," says Rowe, but troubled him in terms of individual rights.
"I would be cautious when you start doing things with individuals whose consent you do not have, particularly if they may not be mentally able," he advises. "Even though your intentions are certainly good and your results are to get better treatment, I'm not sure that, if I had my grandmother in there, I would want her to be exposed without her knowing it."
The station's investigative fervor continues. Rowe is currently representing it in attempts to subpoena criminal records on a fire in a nearby county and in another case involving search warrants.