By Shaun Prunotto
American television audiences have long enjoyed “reality” programs that grant unfiltered access to emergency personnel at work. Police actions are frequently documented and broadcast by programs such as A&E’s Live PD and Cops, which recently aired its 1,000th episode. Production companies, including ABC News (“ABC”) and Discovery, expanded the genre by embedding camera crews in some of the nation’s busiest emergency rooms and trauma units. Mark Chanko’s death in 2011, however, at New York-Presbyterian Hospital (“NYP”) and its subsequent broadcast on ABC’s NY Med has resulted in proposed legislation, a $2.2 million settlement between a federal agency and NYP for violations of the federal HIPAA Privacy Rule, and an ongoing legal battle in New York’s state courts. While the effect this backlash will have on the genre’s overall feasibility is still unknown, the genre’s filming practices within New York are changing dramatically.
An ABC film crew, embedded at NYP, recorded Mark Chanko’s emergency medical treatment after a truck hit him. The episode included many intimate details of Mr. Chanko’s brief time in the ER, including his arrival, Chanko asking if his wife knew he was there, and his family being informed of his death. The filming occurred without the consent of Mark Chanko or his family. Although ABC elected to blur his face and other identifying features, his widow recognized the scene and his voice when watching NY Med 16 months later. Before then, no one in the family was aware the ordeal had been recorded.
Medical ethicists and the American Medical Association have raised concerns that these exploitative practices challenge the boundaries of privacy and consent, and oppose the filming of emergency room patients and staff for public viewing when full and informed consent is not given prior to their participation. The Mayo Clinic insists on seeking patients’ consent before they meet the film crews, “and has turned down requests to film first and seek permission later.” But despite some opposition to the common practice of first filming patients’ treatment and only then seeking permission, film crews continue to return to emergency rooms. And the practice is not just boosting ratings; these broadcasts also benefit the hosting hospitals by drawing attention to those that allow filming, in an industry where other forms of advertising are mostly ineffective.
Two ABC producers responded to many of these concerns in an article for The Journal of Clinical Ethics, where they stress that minimally intrusive filming methods are used, note how well the patients understand the programs’ nature and merits, and emphasize the patients’ competence to give informed consent to being on television. They claim that consent is sought from a surrogate decision maker if the patient cannot give informed consent, and that the patient’s identity is concealed altogether if consent is not given.
But patients suffering medical emergencies may be semi-conscious or have difficulty communicating, and are especially vulnerable to suggestion. Patients might have psychiatric or mental conditions, which while unknown to the film crew, would nullify any consent given. In addition, the events surrounding Mark Chanko’s death have made clear that consent is not always sought from a surrogate decision maker, and that steps taken to conceal a patient’s identity can be ineffective.
The producers also address an important question: Even if the filmmakers don’t broadcast the footage or identify the patient, should the film crew even be in a position to learn of patients’ medical conditions without consent? The producers opine that individuals outside of a patient’s “immediate care circle,” such as third-year medical students and hospitals administrators, are frequently in that same position. But, those parties are certainly part of what can be considered the patient’s “outer” care circle, as they are all related, in some way, to the care of patients (both present and future) at that hospital. Although ABC employees are trained in HIPAA and hygiene protocols, undergo background checks, and receive vaccinations prior to entering emergency rooms, these precautions do not cement the film crews’ place amongst the other “ER tourists” they named.
The producers also provided what they believe are non-debatable “empirical benefits” of their series, which include increases in medical school applications, the recruitment of nurses and emergency technicians, and the signing of organ donor cards by viewers. It should be noted that no sources were provided to substantiate these claims, and that the piece was written prior to the litigation, agency action, and pending legislation related to Mark Chanko’s death.
In 2013, Mark Chanko’s family sued NYP, the treating physician (surgical resident Sebastian Schubl), and ABC. The New York Supreme Court partially granted the defendants’ motions to dismiss the case, except for the claims of breach of physician-patient confidentiality, and intentional infliction of emotional distress. The defendants appealed, and New York’s Appellate Division granted the motions to dismiss in their entirety, thus dismissing the Chankos’ entire complaint. The Chanko family appealed this decision to the Court of Appeals of New York.
While the Chankos’ lawsuit plodded through the courts, State Assemblyman Ed Braunstein filed a bill that would make it a felony in New York to film patients receiving medical treatment without prior consent. The bill would also create a private right of action, allowing patients (or their families) to sue for damages resulting from HIPAA violations. The bill currently has 19 cosponsors after several amendments and rewritings, and was most recently referred to the Assembly Health Committee on February 6, 2017. The pending legislation has the support of the Greater N.Y. Hospital Association, a trade group that represents all of NYC’s hospitals, which has appealed to its member hospitals to abolish the practice of filming patients without consent.
Kenneth Chanko, the decedent’s son, also filed a complaint with the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”), which oversees HIPAA. After OCR investigated NYP, a HIPAA covered hospital, the agency found that it had violated the statute by failing to reasonably and appropriately safeguard patients’ protected health information, which was disclosed to the film crew. NYP paid $2.2 million in restitution after reaching a settlement with OCR in April 2016, but did not admit any wrongdoing.
As part of this settlement, NYP also agreed to strengthen its privacy policies and staff training, and remain under governmental monitoring for compliance for two years. OCR also published a film and media guide to assist HIPAA-covered entities, which made clear that attempts to mask patients’ identities through techniques such as blurring, pixilation, or voice alteration are insufficient to override the requirement of patients’ pre-filming consent.
The Chankos’ appeal of the Appellate Division’s dismissal of their entire complaint was decided by the Court of Appeals on March 31, 2016; it modified the lower court’s order by denying NYP’s and Dr. Schubl’s motions to dismiss the breach of confidentiality claim, but otherwise affirmed. The court found that the blurring of Mr. Chanko’s face, even though his name was not used in the broadcast, might be sufficient to show a breach of confidentiality. With these claims revived, the case will proceed to jury trial.
While there is immense pressure to settle before trial, the Chankos’ pursuit of justice through the court system continues. But regardless of the outcome, Mark Chanko’s death and his family’s suffering have already prompted great change in the state of New York, through the actions of a proactive trade group, legislators, and a governmental agency. Only time will tell if these pro-privacy developments will spread beyond the state’s borders.
 Chanko v. Am. Broad. Cos. Inc., 27 N.Y.3d 46, 50-51 (Court of Appeals of N.Y., 2016)
 Id. at 55.