ABC's Film of Patient Gives Rise to Confidentiality Claim

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By Mary Anne Pazanowski

March 31 — Allowing a national television network to film patients during treatment and to broadcast the resulting footage may expose a hospital to liability, a case out of New York's highest court demonstrates.

The New York Court of Appeals March 31 said the family of a man who died while being treated at the New York-Presbyterian Hospital stated a claim for breach of physician-patient confidentiality growing out of an incident filmed by the American Broadcasting Cos. (ABC) as part of a documentary series about medical trauma.

Filming within hospitals has been a hot issue for health-care attorneys recently, but most counsel are concerned with surreptitious or unsanctioned taping. Hospitals are formulating new policies to deal with issues such as the threatened loss of private health information that could expose the hospital to liability under the Health Insurance Portability and Accountability Act (HIPAA).

This case, however, concerns a simpler issue—the taping of the hospital's interaction with the patient and his family, without first getting consent. The family member plaintiffs also sued ABC, but the network wasn't involved in this appeal, which concerned only the dismissal of two claims against the hospital.

‘Wake-Up Call.'

This case is a “wake-up call” for hospitals, attorney Michael F. Schaff told Bloomberg BNA March 31. The decision shows that hospitals “can't do business as usual when it comes to protecting patient rights and confidentiality.” Schaff is the chair of Wilentz, Goldman & Spitzer PA's corporate and health-care departments and practices out of the firm's Woodbridge, N.J., office.

The “lesson,” Schaff said, is that hospitals need to get a patient's or family's consent—if not before, then certainly after the filming and before the broadcast. A hospital should have a policy in place to protect it in these circumstances, he said.

Even beyond confidentiality, hospitals must consider whether permitting filming on their premises might expose them to liability under the federal HIPAA law or other state confidentiality laws. Schaff suggested that a hospital touch base with its attorneys if there are any gray areas. In this case, he said, the hospital apparently believed that, so long as the patient's face was blurred out and there was no identifying information broadcast, there would be no problem.

This case raised an uproar in New York when it first came to light, Grace D. Mack and Alyson M. Leone, a shareholder and counsel, respectively, on Wilentz's health-care team, told Bloomberg BNA. In fact, it led the Greater New York Hospital Association to voluntarily ban filming in hospitals without patients' prior consent.

In 2015, the GNYHA issued the following statement: “Greater New York Hospital Association (GNYHA) and its member hospitals agree that hospitals should not allow patients to be filmed for entertainment purposes without their prior consent. Further, all New York hospitals take their legal obligations concerning patient privacy very seriously. Both New York State and federal law prohibit the use or disclosure of identifiable patient information without the prior consent of the patient or a suitable patient representative. New York’s hospitals will continue to vigorously safeguard the privacy of patients and their families.”

The American Medical Association also has a policy on filming, which says that any filming of patient interactions should be done with utmost respect for the patient's privacy. “Filming patients without consent is a violation of the patient’s privacy,” the AMA's ethics code says. “Consent is therefore an ethical requirement for both initial filming and subsequent broadcast for public viewing.”

Schaff said hospitals should look at all the facts and decide, with advice of counsel, what's appropriate and in what circumstances.

Emergency Room Death

Mark Chanko was brought to the hospital's emergency room after being hit by a motor vehicle. The hospital's chief surgical resident, Sebastian Schubl, was responsible for his care.

An ABC news crew had the hospital's permission to film during Chanko's treatment. It caught Schubl's statement that Chanko was dead, and filmed the doctor telling the family. Some time later, Chanko's widow saw these scenes on television.

The plaintiffs sued ABC, the hospital and Schubl. The trial court dismissed all but two of their claims, the claim for breach of physician-patient confidentiality and the claim for intentional infliction of emotional distress. The intermediate appeals court modified the order, and dismissed the entire complaint.

The state's highest court reinstated the physician-patient privilege claims against Schubl and the hospital, saying the plaintiffs properly alleged all the elements of the cause of action. That is, the complaint alleged that the health-care providers disclosed information necessary for Chanko's treatment that they acquired in attending to Chanko in a professional capacity, without Chanko or the family's permission.

The court found no evidence that Chanko or the family waived their right to confidentiality. It also said a breach of confidentiality could arise from the disclosure of information learned through observing the patient, and wasn't limited to information actually communicated. The information disclosed also need not be embarrassing or something the patient would wish to keep secret, the court said.

The fact that Chanko wasn't identifiable on the television program wasn't relevant, the court said. The disclosure of Chanko's identity and his medical information to the ABC film crew sufficed as a breach of confidence, it said.

The plaintiffs' claim for intentional infliction of emotional distress properly was dismissed, New York's highest court said, because it the alleged conduct didn't rise to the level of outrageousness required by state law.

Norman A. Olch, New York, represented plaintiff Anita Chanko. Nixon Peabody, New York, represented the hospital. Levine Sullivan Koch & Schulz LLP, Washington, represented ABC.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bna.com

To contact the editor responsible for this story: Janey Cohen at jcohen@bna.com

For More Information

The opinion is at http://src.bna.com/dLt. The AMA's ethics code is at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion5045.page.