Earlier this month, Charles Ornstein explored a New York City family’s charge that their privacy was violated by a local hospital and a reality television show in ProPublica. More specifically, he details how the death of one Mr. Mark Chanko was filmed at NY Presbyterian Hospital without the family’s consent, and then nationally aired on ABC’s NY MED over a year later. Mr. Chanko’s face was blurred for viewers but he remained recognizable to family and friends who watched the show. Since the broadcast, the family has pursued legal action through several New York courts with little success thus far.
The piece has already been commented upon by several smart people, most recently Kay Lazar of the Boston Globe. Just one day after Ornstein’s piece went to press, the Dean of Harvard Medical School Jeffrey Flier (@jflier) tweeted “How could this be allowed to happen?” only to be informed by the Chair of Surgery at Boston Medical Center, Gerard Doherty, (@GerardDoherty4) that three Harvard-affiliated hospitals are in fact currently hosting camera crews for a similar series. The ensuing conversation reminded me just how limited a platform Twitter is for tricky conversations about health care law and ethics. So I did what any self-respecting millennial would do – I went home for the holidays and asked my mom to help me understand what the internet couldn’t.
Lynn Jennings Taylor is trained as a Navy nurse and an attorney and serves as Senior Vice President of Risk Management and Patient Safety and Chief Privacy Officer for a New York-based health system. In other words, all nepotism aside, she’s in the right role to weigh in with credibility on the Chanko case. We chatted last week about the Ornstein piece and health care privacy over a plate of her homemade gumbo. That conversation was fueled by red wine and therefore is not available for transcription – but I (LAT) asked my mom (LJT) to circle back to some of the key issues in an e-interview. Below is her slightly sanitized take.
LAT: The Chanko case is clearly one that revolves around a patient’s right to privacy. And when most people in health care think privacy, they think HIPAA. Help the non-lawyers like me understand why HIPAA isn’t at the heart of this case?
LJT: HIPAA is not the operative regulation because, as Ornstein points out, “HIPAA does not give patients a right to sue if doctors or hospitals violate their privacy.” So the family must search for other laws that might be applicable. The only statute applicable to privacy in NY is found in the civil rights law and it is narrowly construed. Furthermore, there is also no common law right of privacy in New York State. This means that no case law has been recognized by the courts which would grant privacy rights above and beyond those granted by statutes.
LAT: You’ve said to me that you would not be in favor of allowing a show like NY Med to film at one of your system’s hospitals. Why not?
LJT: Patients and their families are at their most vulnerable state when they seek emergency care. I would never want to appear to exploit such a situation in order to showcase our staff or expertise. I do not believe you can gain adequate consent from the patient or family for such filming prior to treatment, and think it is inappropriate to try to gain such consent after the treatment has been rendered.
LAT: What do you think of NY MED advocates claims that they are educating and inspiring viewers to go into medicine?
LJT: The inherent risks of privacy violations seem to me to outweigh any highly speculative benefits which might occur with respect to enticing viewers into the medical profession. Fictional network television shows already appear to serve that purpose equally well.
LAT: NY Presbyterian is claiming in court filings that even though they did not have the family’s consent, Mr. Chanko was not identifiable to the public because the patient and family members’ “images, likeness and other potentially identifiable information were obscured in the episode.” An appellate court in New York dismissed the case in November, essentially agreeing that no personal information was disclosed. And yet, the family reports getting calls from friends that they had recognized Mr. Chanko in the episode. How do you think about the kinds of information that make someone identifiable?
LJT: The laws are clearly evolving with respect to what kinds of information make individuals identifiable. While demographic information is easy to prohibit, other less quantifiable information or images are harder to limit. While a particular mole on a patient’s hand is insufficient to identify that patient to the world at large, to that patient’s mother it may well be considered clearly identifiable. As an industry we are trying to determine where such lines need to be drawn. A reasonableness standard needs to be applied when trying to give guidance to our staffs.
LAT: What does NY Med being produced by ABC’s news division have to do with anything? If NY Presbyterian gave the show access to their emergency room, who then bears the burden of protecting patient’s privacy?
LJT: In my opinion, the fact that this was produced by ABC News does have bearing on this particular case. The controlling statute, civil rights law section 50/51 contains a newsworthiness exception. This allows new organizations to write or display images of persons without obtaining permission if related to matters of public interest. As this concept has been broadly construed in the past, it likely will continue to insulate news organizations from claims of privacy violations. However, the healthcare provider maintains an independent duty to protect the privacy of its patients. In short, the burden remains with the hospital.
LAT: At the end of the article, Kenneth Chanko is quoted as saying “Morally and ethically it’s not right, and I would also think that legally it can’t possibly be right.” What’s your bottom line here?
LJT: I think this issue ultimately is more ethical than it is legal. The question in my mind is whether it is ethical for any healthcare provider to benefit by virtue of media exposure at the expense of a vulnerable patient? This type of behavior may well undermine the trust patients are entitled to have in their providers. This trust is already tenuous and we should not jeopardize it further.
Thanks, Mom.
I hate to disagree with anyone’s mom, but Americans really do still have strong rights to the privacy of personal health information, especially inside treatment facilities. And they have the right to sue for privacy violations under state law.
There have been several sensational stories in the news of lawsuits filed when hospital staff members posted photos of patients in emergency rooms in compromising situations using social media.
Physicians who want to take photos or videos of patient procedures or surgery for research or educational purposes must get informed consent first. The ER physicians and hospital administrators should never have allowed what happened to Mr. Chako and his family.
Common sense would tell you that despite “blurring”, and attempts to disguise people, patients are STILL highly identifiable to people that know them. Even if someone’s head is not shown, it’s just not good enough. Voices and bodies, date and circumstances, clothing, and many other details are very revealing.
And even though HIPAA doesn’t allow patients to sue for privacy breaches, we can still sue hospitals for data breaches that occur if the data security protections don’t comply with HIPAA’s data security standards. Lawsuits like this are happening in California now.
Plaintiff attorneys are using HIPAA standards to sue under state laws, and winning lawsuits against hospitals or clinics that didn’t follow federal data protection requirements.
Lauren here. I disagree with my mom all the time, so no worries there. Thanks for commenting, and disagree away. 🙂
I am not the expert on this – and I do hope Lynn responds here as well – but I think she would generally agree with you that there are strong privacy protections in place. Where I thought this Chanko case was most interesting from a conceptual standpoint was in begging the question of what the difference between protected health information and potentially identifiable information might be. And I fall deeper into a rabbit hole when I start to parse what demographic information “collected by a provider” might mean. Here, the courts seem to have sided thus far with the hospital that no PHI was released – and yet the story is so compelling because it seems Mr. Chanko was clearly identifiable in the NY MED episode.
I also think your comment that “despite blurring, patients can be highly identifiable to people they know” is really interesting. My mom and I got into this a bit more in person than we did in the interview – but I was surprised to learn that the question “identifiable to who?” isn’t clearly taken up in any of the relevant legal material. I had imagined that when we talk about identifiable information it was information that would reveal someone’s identity to a total stranger. Clearly, that may not include plenty of information that would reveal someone’s identity to a friend as we see in this case. So this is where my Lynn’s mention of a need for a “reasonableness” standard comes in.
I’m interested in your take – what do you think will happen to the Chanko family’s case in the courts?