March 6th, 2015
by Charles Ornstein, ProPublica
Newly proposed legislation would make it a felony in New York to film patients receiving medical treatment without prior consent.
State Assemblyman Ed Braunstein, a Queens Democrat, filed the bill last month in response to a ProPublica article, published in January with the New York Times. The story detailed how the TV show "NY Med" aired the final moments of Mark Chanko's life while he was being treated at NewYork-Presybterian Hospital/Weill Cornell Medical Center.
Neither Chanko nor his family had given the show permission to film him. Although Chanko's face was blurred on the broadcast and his voice altered, his widow immediately recognized him when the episode aired in August 2012.
Braunstein said in an interview:
"You can imagine what the family went through when they witnessed their loved one dying on TV. After watching the story and finding out that they were really without any recourse, we decided we should introduce something to fix the problem. In the future, if someone is going to be filming medical treatment, you have to get a signoff from the patient or the patient's power of attorney or health care proxy."
Chanko's family filed suit against the hospital, ABC News (which aired the show) and the doctor who treated him, but an appellate panel dismissed the case last year. The family has asked for that decision to be reviewed.
ABC declined to comment for this story. The hospital did not respond to requests for comment. The parties do not dispute that they lacked consent from Chanko or his family. In court filings, they say he was not identifiable to the public. The network also has asserted that "NY Med" is protected by the First Amendment. Lawyers for New York-Presbyterian have argued that the state does not recognize a common law right to privacy and that any privacy right Chanko had ended upon his death.
Braunstein's bill has 10 co-sponsors and has been referred to the Assembly Health Committee. He plans to amend the bill to allow filming for legitimate purposes, such as education or security. He also plans to propose a private right of action allowing patients and their families to sue for damages. Existing federal patient privacy law does not permit patients to sue for violations and neither does New York State's Patients' Bill of Rights.
Kenneth Chanko, Mark Chanko's son, said his family is glad to hear about the legislation,
"Any law that would prevent what happened to my father and to our family is something that we would support and that we think is necessary," he said. "Although we're still hoping for some justice for ourselves through our lawsuit, it's just as important, if not more important, that no one else has to experience what we experienced over this."
Joel Geiderman, co-chair of the emergency medicine department at Cedars-Sinai Medical Center in Los Angeles and chairman of the ethics committee of the American College of Emergency Physicians, opposes filming of patients without prior permission.
He wrote in an email:
"It's sad that someone would have to pass a law to prevent hospitals from allowing something that is so clearly morally wrong. But at this point, that may be one of the only choices left."
Interested in patient privacy? Read our story about how rarely federal health watchdogs fine organizations that don't protect the privacy and security of patient records. And share your story if your privacy was violated.
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