A new Illinois law related to nursing homes went into effect on Jan. 1, 2016. The law states, “A resident shall be permitted to conduct authorized electronic monitoring of the resident’s room through the use of electronic monitoring devices placed in the room pursuant to this act,” Section 10(a).
This new statute places ownership and control of the electronic monitoring process in the hands of the resident. “A resident choosing to conduct authorized electronic monitoring must do so at his or her expense, including paying purchase, installation, maintenance and removal costs,” Section 25.
Because of the authority of the Illinois Nursing Home Care Act, once a video recording is made in a resident’s room under this legislation, it is not permitted to be destroyed. Under the Nursing Home Care Act, “no person shall: Intentionally prevent or interfere with the preservation of evidence pertaining to any violation of this act or the rules promulgated under this act.” 210 ILCS 45/3-318(a)(4) (2015).
The resident must provide video recordings to any party involved in a civil action. “The resident or person who consented on behalf of the resident in accordance with Section 15 of this act shall provide a copy of any video or audio recording to parties involved in a civil, criminal or administrative proceeding, upon a party’s request, if the video or audio recording was made during the time period that the conduct at issue in the proceeding allegedly occurred,” according to Section 45(c).
The resident’s video recordings are admissible.
“Subject to applicable rules of evidence and procedure, any video or audio recording created through authorized electronic monitoring in accordance with this act may be admitted into evidence in a civil, criminal or administrative proceeding if the contents of the recording have not been edited or artificially enhanced and the video recording includes the date and time the events occurred,” Section 50.
This new law, Authorized Electronic Monitoring in Long-Term Care Facilities Act, may be the first of Illinois legislation that prevents destruction of video evidence. In fact, the act explicitly requires preservation at the legislature’s command as useful evidence in a later proceeding. As a result, residents who create a surveillance video but are unable to produce it for a later civil action may be at risk for a spoliation of evidence claim.
Because there are some issues yet unsettled in the spoliation of evidence law, this new act may be open to legal testing in its application that may resolve some of those still disputed issues.
Effective Jan. 1, 2016, Public Act 099-0430, “Authorized Electronic Monitoring in Long-Term Care Facilities Act.”
Kreisman Law Offices has been handling nursing home abuse cases, nursing home negligence cases, long-term facility negligence cases, assisted living negligence cases and elder abuse cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Richton Park, Oak Lawn, Blue Island, Calumet City, Bedford Park, Geneva, Hinsdale, Kenilworth, Lisle, Glencoe, Lake Forest, Lockport, Niles, Northbrook, Park Ridge, Round Lake, Western Springs, Chicago (DePaul University Area, Chinatown, Canaryville, Buena Park, Oz Park, Pill Hill, Portage Park, Roscoe Village, Sauganash, South Shore, Wrigleyville, Irving Park, Jackson Park), Morton Grove and Fox River Grove, Ill.
Related blog posts:
Illinois Appellate Court Affirms Discovery Orders in Nursing Home Abuse Case and Vacates Order of Contempt
$38 Million Settlement for Whistleblower Actions Under the False Claims Act Against Operator of Skilled Nursing Facilities
Appellate Court Agrees that Arbitration Agreement was Inapplicable to Wrongful Death Claim of Resident’s Beneficiary