As Anita Chanko watched ABC’s medical docu-series “NY Med,” the shock and outrage set in: she recognized the blurred out image of a man in the operating room. “I saw my husband die before my eyes,” she said.
Her 83-year-old husband Mark Chanko was struck by a sanitation truck in April 2011 and taken to NewYork-Presbyterian Hospital/Weill Cornell Medical Center. His last words, as shown on the program, were "Does my wife know I am here?" Chief surgery resident Sebastian Schubl and the other doctors were unable to revive him and he died. A camera crew from “NY Med” documented the heartbreaking moment.
For hospitals like NewYork-Presbyterian, “NY Med” provides free publicity and distinguishes their medical care on a major broadcast network. But some patients like Chanko are in no condition to consent to being filmed. No one in the Chanko family had given approval for the show to broadcast his last moments to a national TV audience, senior reporter Charles Ornstein explains to Editor-in-Chief Steve Engelberg in this week’s podcast.
Patient privacy at hospitals is protected under the 1996 federal law known as HIPAA, the Health Insurance Portability and Accountability Act. Hospital staff don’t discuss the details of a patient’s medical care in areas where others can eavesdrop, and pharmacies ask customers to stand in a far-off line so they don’t overhear personal prescription information.
“NY Med” received permission from the hospital, but not from the Chanko family. Ornstein raises the question, does the presence of cameras alone violate HIPAA?
“Even if they could never identify you, would you want somebody filming those most private moments when you may be naked, they may be operating on the inside of your body, you may be dying, and there’s a camera in there filming it?” asks Ornstein.
Under HIPAA, patients do not have the right to sue doctors and hospitals for violations. Patients can file a complaint with the U.S. Department of Health and Human Services' civil rights office, which the Chanko family did. Federal regulators are still reviewing the case after two years. Ornstein says that if the feds take the position that filming in emergency rooms violates patient privacy, shows like NY Med could potentially be in danger.
The family sued ABC, NewYork-Presbyterian and Dr. Schubl for damages, but an appellate panel dismissed the case. In court filings, ABC asserts that the footage of Chanko is unidentifiable since his image is blurred, and because the show is produced by its news division, it is protected by the First Amendment. The family has asked for the decision to be further reviewed.