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04/21/2016

Clarifying the Rules: No media in patient treatment areas

by Craig Klugman, Ph.D.

In January, I wrote about the case of Mark Chanko, a patient run over by a truck whose death was recorded for a real-life medical show and was later viewed on television by his horrified widow who had never been asked for permission for the airing. Now a settlement with federal regulators announced today will forever tighten health privacy recording restrictions in the hospital. In short, to film patients in the hospital, you have to get their consent before recording, not after as has been the procedure for most real-life medical shows.

New York Presbyterian Hospital is paying $2.2 million in penalties to the U.S. Office for Civil Rights for allowing ABC to film patients without consent for the television show NY Med. Although the show did try to blur Mr. Chanko’s image on the broadcast, his wife immediately recognized him and had to relive the trauma of watching her husband die on screen. The Chanko family filed with the Office for Civil Rights (U.S. Department of Health and Human Services) with complaints against the hospital and filed a lawsuit alleging breach of confidentiality against both the hospital and ABC News. The New York Court of Appeals dismissed the suit against ABC, but is permitting the suit against the hospital and a former chief surgical resident to proceed.

The new clarification of the rules states “Health care providers cannot invite or allow media personnel, including film crews, into treatment or other areas of their facilities where patients’ PHI will be accessible in written, electronic, oral, or other visual or audio form, or otherwise make PHI accessible to the media, without prior written authorization from each individual who is or will be in the area of whose PHI otherwise will be accessible to the media.” The method used in this case, pixelation of the patient’s face, is called out as insufficient for protecting patient privacy. There are, however, a few exceptions to the rule. The media may be given information if there is an unidentified and incapacitated patient and the hospital has a reasonable expectation that broadcasting images of the patient might help family or friends to come forward. The rule also does not apply to public areas of the hospital like accessible waiting rooms and entrances.

With many of these real-life medical shows, the film crews record cases that look interesting as they come in. Since, the outcomes and what happens cannot be predicted, they record much more material than would ever be used. When they decide to broadcast a case, they then seek consent from the patient and/or family (depending on the situation). Or, as ABC did, sometimes they try to blur the patient enough (visually and aurally) that one supposedly cannot identify the case. Clearly, those technologies are imperfect. Thus, this clarification may spell the end of such shows or require them to undergo dramatic changes.

The end of such shows would not upset many except for producers—NY Med drew about 6 million viewers each week. The American Medical Association and the American College of Emergency Physicians have both come out against these real-life medical shows out of concern not only for privacy of patients but for that of the staff as well.

While the clarification may keep commercial media out of patient treatment areas, it does not prevent a lone visitor from recording a scene on a cell phone and sharing. I would like to say that perhaps there should be a ban on recording devices, but given the saturation and ubiquity of such instruments in the world today, enforcement would be a Sisyphean task. In medical and nursing programs, students receive lectures on not recording and taking pictures of patients and on not posting patient information on their social media. Perhaps we should expect such behavior of visitors, patients and family members as well. Hospitals should adopt policies and post signs that forbid all recording that is not for a pre-approved educational or assessment purpose. This would certainly have helped with the Ethel Easter situation and would help toward ensuring that citizen journalists and backyard filmmakers do not violate patient privacy.

Though the fine and rules clarification cannot undo the horror that the Chanko family has endured from this unauthorized exposure, hopefully it will prevent other cases in the future.

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