Mom was abused by a home health aide. Now what?
Hi everyone,
I am relatively new to this site. I've come to appreciate the wealth of information members share and I'm hoping you can help me.
My mother has a Alzheimer's. She lives at home and gets 24 hour care from a home health aide. We're relatively new to that so we're still in the process of finding good aides. We use an agency. The agency sent a new aide a couple of weeks ago, and, long story short, she lost my mother in the street. My mother was by herself for about an hour before a fireman took her to the ER and called me. The aide is telling an inconsistent story, so yesterday, I rollrd the tape on my mom's surveillence camera to try to figure out what happened. On the tape I see the HHA threatening my mother, screaming at her, saying that she was going to "beat her a**" and that she's better "get her a** into bed" and "don't make me call the police, you're crazy, they'll come and lock you up with the crazy people," etc. I couldn't bear to keep watching because the HHA told me she had tried to grab my mother to keep her from walking away and I can't handle seeing an assault right now. I have no family, no support, and I am devastated. I have already reported the aide to the agency and had her removed from mom's case for "losing" my mother, but these threats/abuse is new information. The agency was not very responsive. They defended the aide, but no one knows I have cameras.
I need advise. The camera this abuse was caught on is visible, but someone told me it is illegal to tape someone without their knowledge, and that in NY, audio taping is illegal. I want to sue the agency, but I don't want them to counter sue for the surveillence or the audio. I also want to make sure this aide loses her license and cannot abuse anyone else.
Has anyone else gone through this process? Where can I turn for help?
7 Answers
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If your video has sound, it is illegal and inadmissible in the above states according to this link: legalmatch/law-library/article/babysitternanny-camera-legality.html
That, however, doesn't mean you can't make a copy of the video and DELETE the sound. Please note that New York is not on that list. From what I can see Googling "two party consent state New York," New York is a one-party consent state which means your video, with audio, would be admissible in court.
You need the advice of an attorney. He'll have the definitive answer. If the answer is that New York allows one-party consent, personally, I would call the police. If the assault is on video, this woman will be arrested.
If this caregiver is licensed in some way, I would report her in writing to the licensing agency. After I found that my video/audio recording was legal, I'd email them a copy of it. She should be called to answer to the licensing board for her conduct.
Needless to say, you're not dealing with that agency anymore. So, Step One is to find a new one, make sure they're doing background checks, and, before you settle on a caregiver, call references. No references? No hire.
Do not talk to a new agency about the extent of the caregiver's abuse. Simply say you found the agency, and the person they sent, to be completely unsatisfactory. Period. End of story.
First, I wouldn't discuss the tape with the agency until you get legal advice, although you could call an ombudsperson in NY for preliminary guidance on the law. Blannie's advice is good and specific on the use of nanny cams. Although they're to monitor nannies, I think an attorney could advise whether or not the underlying principle, i.e., safety, could be extended to monitoring of caregivers.
Second, you might contact an ombudsperson for NY to get some general guidance on this entire situation. I'm sure it's occurred before, and perhaps even with this particular aide.
Third, dupe the tape to make a second copy and store it in a safe place, possibly even in a bank safety deposit box, just in case anything happens to the original.
Fourth, think about what you want to accomplish and the best way to do it. It's easy to think "sue them!" but also to be considered are the stress of initiating and paying for a lawsuit, the drawn-out process, and what you would get out of it.
I don't dismiss suits lightly, but you also have to list the damages done. Mom was lost, both of you probably were upset, no question about that. Any attorney defending the home care agency would likely demand specifics - i.e., what are the short and long term damages? Was your mother permanently disadvantaged because of the incident? If so, how?
Although "sue the bas....s" is sometimes a first thought, most people who haven't worked in litigation don't realize the evidence that's required to sustain the suit and gain monetary damages.
Fifth, exactly what damages (a) were sustained and (b) for which you want to be compensated?
Damages could be emotional distress; that's a typical result. Dismissal of the aide, monetary penalties to the agency and/or censure if that's possible - these are potential actions that could be taken. Beyond that, what else would you like to see done?
Sixth, What I'm saying is that you have to be able to identify a clear cause of action, injuries, short and/or long term damage. Can you do that?
Seventh, You might want to do a records search of your local circuit court (or other level at which a suit would be filed in the range of monetary damages you seek) to determine if this agency and/or aide have been sued before.
Eighth, you might want to determine if the fire department prepared a report when the fireman found your mother. If so, get a copy.
Ninth, did the agency do a background check? If so, do you have a copy? Does it indicate any prior issues?
Tenth, check with the licensing agency to determine if this aid has been reported before, as well as what qualifications are necessary to be licensed. Check those against your records to determine if there are other licensing breaches by the aide and/or the agency.
Eleventh, do not, I repeat do not make the tape available to anyone, especially a news media, until you have legal advice. Then consider this: you could harm your case by making the tape public. This might provoke a countersuit by the agency for damage of reputation and possibly libel or slander (I forget right now which is written and which is oral defamation). The agency could request an injunction against you pending litigation.
Twelfth, you could take the video to the police and ask how to proceed, w/o asking if she could be arrested. I think it's better to let the police offer their advice - they're more knowledgeable than we are on what can be done.
They also could proceed to get more information on the aide, such as her last name, if they feel that action is warranted.
Good luck; I hope you get some answers quickly, and please do report back as this kind of situation could affect any of us.