New York Top Court Revives Suit Against Hospital That Let Man’s Death Be Filmed
Charles Ornstein (ProPublica) 04 April 2016

Mark Chanko’s family sued NewYork-Presbyterian Hospital and one of its doctors for allowing a TV crew to film his death without permission. A lower court had thrown the case out, but the New York Court of Appeals revived it


New York's highest court on Thursday revived a lawsuit filed by the family of a man whose death was filmed without permission and then broadcast on a popular medical show. The case raises fundamental questions about whether hospitals and doctors can and should allow TV crews to film their patients before consent has been given.


In a unanimous decision, with one justice not taking part, the New York Court of Appeals allowed the suit filed by the family of Mark Chanko to proceed against NewYork-Presbyterian Hospital and its former chief surgical resident Sebastian Schubl. The suit alleges breach of the doctor-patient confidentiality owed to Chanko.


The ruling gave the family only part of what it sought. The high court decided that the family's claim of intentional infliction of emotional distress against the hospital, doctor and ABC News, which aired the show "NY Med", could not proceed. The conduct alleged, while "offensive," was not outrageous enough to justify damages on that count, the judges found.


Chanko, a Korean War veteran, was struck by a sanitation truck in 2011 while crossing the street. He was taken to NewYork-Presbyterian/Weill Cornell Medical Center, where he died a short time later. The following year, Chanko's widow, Anita, was watching the "NY Med" in her Yorkville living room when she recognized her husband moaning in pain, even though his face was blurred and his voice muffled.


The family's story was chronicled last year by ProPublica, in collaboration with the New York Times. "I saw my husband die before my eyes," AnitaChanko said.


After watching the episode of "NY Med", Kenneth Chanko, Mark's son, complained to the hospital and the network, as well as to state and federal regulators, and the family filed suit. A judge had narrowed the scope of the litigation and an appellate panel threw it out entirely.


The Court of Appeals partially re-opened the case, saying the family had properly stated a claim that Chanko's medical privacy was breached. "Even if no one who actually viewed the televised program recognized [Chanko], thereby rendering plaintiffs unable to state a cause of action based solely on the broadcast of the program, the complaint expressly alleges an improper disclosure of medical information to the ABC employees who filmed and edited the recording, in addition to the broadcast, itself," the court ruled.


The court said the broadcast by ABC "would likely be considered reprehensible by most people, and we do not condone it." But the ruling noted that the broadcast footage was edited so that it did not include Chanko's name, his image was blurred, and the segment about his case took up less than three minutes of air time.


"We conclude that defendants' conduct here, while offensive, was not so atrocious and utterly intolerable as to support a cause of action" for emotional distress, Judge Leslie Stein wrote for the court.


A spokeswoman for NewYork-Presbyterian declined to comment Thursday. Requests for comment to an ABC News spokeswoman were not returned by deadline.


Kenneth Chanko said his family was pleased with the decision because it will allow them to seek documents, footage and depositions that could shed light on the treatment of his father and learn what was filmed and who viewed it.


"It's not just important to us and our case but it also reaffirms that what happened in these circumstances to my father is actionable under New York state civil law," he said. "I think it's a victory for patients' rights in the state of New York."


The New York State Department of Health found that NewYork-Presbyterian had violated Chanko's rights and, indeed, its own privacy policy. "The patient was unaware and uninformed that he was being filmed and viewed by a camera crew while receiving medical treatment thus his privacy in receiving medical treatment was not ensured," inspectors wrote in a citation. New York regulators did not impose any sanctions on the hospital.


The Chanko family's complaint against the hospital and the doctor remain pending with the Office for Civil Rights of the U.S. Department of Health and Human Services, the regulatory agency that enforces the federal patient privacy law known as HIPAA. The agency has previously declined to discuss its investigation because it is ongoing.


Legislation has been proposed by New York lawmakers that would make it a crime to film patients without consent (with certain exceptions). And last summer, the trade group representing hospitals in New York City said its members would voluntarily agree to allow filming of their patients only with prior consent.


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