“You can’t buy this kind of publicity,” said Myrna Manners, New York Presbyterian Hospital’s Vice-President for Public Affairs, when the ABC series “NY MED” was first broadcast in 2012. The Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“DHHS”), the agency that enforces HIPAA, is now considering whether to impose penalties on the hospital as a result of a broadcast in which a patient’s treatment was broadcast without consent. This may result in a different kind of publicity than Ms. Manner envisioned, and could present an expensive lesson for this hospital and others with regard to cameras in hospitals.
The episode in question involved treatment of a patient, Mark Chanko, who had been struck by a garbage truck. Consent for the filming was not sought from the patient or his family, and apparently his wife had no idea his treatment was recorded until she watched the episode depicting his death following treatment at New York Presbyterian Hospital. The patient’s face was obscured through pixilation but Ms. Chanko told reporters in an article published jointly by ProPublica and The New York Times (available here) she recognized her husband and so did the family’s former dog sitter. The Chanko family filed complaints with the State of New York and DHHS, and brought a law suit alleging, among other claims, violations of privacy and infliction of emotional distress after watching her husband’s death for the second time.
While the New York State trial court (the Supreme Court for New York County), in response to a motion to dismiss, permitted certain causes of action to proceed, the Appellate Division reversed and dismissed the remaining claims, stating that no personal information had been disclosed. The appellate court did not elaborate, but the hospitals attorneys contended the patient’s identity was not disclosed because his name was not provided and the image of his face was obscured by pixilation.
The New York criterion for disclosure differs from the HIPAA standard, and this will be the pivotal issue for the hospital. HIPAA proscribes disclosure of the details of treatment information that identifies the patient or information that, in combination with other information can lead to the identification of the patient who has not given consent or for whom consent was not sought from family members.
Hospitals that wish to consider a reality TV series, or allowing photography or digital recording for other reasons, should pay close attention to these proceedings, and take into account whether the benefit of recording treatment of a patient for whom consent has not been provided outweigh the potential financial and reputational costs of an adverse OCR finding and assessment of HIPAA penalties.
If you have questions or wish to discuss HIPAA compliance in your organization please contact Kenneth N. Rashbaum.