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Filming In The ER And Patient Privacy Rights

Imagine turning on your television and watching your significant other die before your eyes. This may seem like the plot of a TV show but it actually happened to Anita Chanko in 2012. Chanko was up late one night because she couldn’t sleep. She turned on her TV and put on the ABC program, “NY Med.” The show, which aired episodes in 2012 and 2014, stars Doctor Mehmet Oz. It follows the real life medical cases that occurred at New-York Presbyterian Hospital. While watching the program, a segment came on about a man who was hit by a vehicle. As the segment progressed she realized that she knew the man. It was her husband, Mark Chanko. He had passed away the previous year “after being struck by a sanitation truck while crossing a street near his home.” Anita watched as doctors tried and failed to save her husband’s life. She stated, “I saw my husband die before my eyes.”https://www.nhlegalblog.com/files/2016/07/film08122010_11crit.4-7679239-300x199.jpg

According to the New York Times, “no one in the Chanko family had given ‘NY Med’ permission to film Mr. Chanko’s treatment at the hospital or to broadcast the moments leading up to his death.” Under the Health Insurance Portability and Accountability Act, also known as HIPAA, patient information is only supposed to be shared with the patient and those the patients authorizes.

Mark Chanko’s son, Kenneth Chanko, filed several complaints after the airing of the show. He filed complaints with the “hospital, the New York State Department of Health, ABC, a hospital accrediting group and the United States Department of Health and Human Services’ civil rights office.” ABC was quick to remove the segment from the show and any future airings. In addition, the Chanko’s filed a lawsuit against ABC, as well as the hospital and the doctor who treated Chanko.

In 2013, the state of New York “cited the hospital for violating Mr. Chanko’s rights.” But it didn’t end there. In April of 2016, New-York Presbyterian was to be in violation of HIPAA by the Office for Civil Rights, in the Department of Health and Human Services. The OCR stated in a press release that it “reached a $2.2 million settlement with New York Presbyterian Hospital (NYP) for the egregious disclosure of two patients’ protected health information (PHI) to film crews and staff during the filming of “NY Med,” an ABC television series, without first obtaining authorization from the patients.” The OCR did not find masking patients identities sufficient substitute for actual authorization from the patient to appear on camera. Mark Chanko’s case was one of the reasons for the fine.

The hospital didn’t admit to any wrongdoing as a result of the settlement but will have to “update its privacy policies and provide additional training to staff.” It’s compliance will be monitored for the next two years. Kenneth Chanko stated, “‘I’m almost at a loss of words because we’re just so grateful that action was taken and this will have a national impact on hospitals.'” The family’s lawsuit was not allowed to proceed on claims of intentional infliction of emotional distress, but the Chanko’s claim for breach of doctor-patient confidentiality against the hospital as well as the doctor who treated Chanko has been revived and permitted to go forward.