By Sabina Mollot
The Court of Appeals has allowed a lawsuit filed by the family of a late former resident of Stuyvesant Town, who unbeknownst to him had been filmed for a reality show as he lie dying in a hospital room, to proceed.
The widow and grown children of Mark Chanko, the man who was filmed at the hospital following being hit by a truck, had appealed a decision by the Appellate Court to dismiss the suit. However, in a decision last Thursday, a judge ruled that while the suit can go on against the hospital, New York Presbyterian, the ABC network that was responsible for the show, mini-series “NY Med” featuring Dr. Mehmet Oz, is no longer a defendant. New York Presbyterian Hospital and Doctor Sebastian Schubl, who treated Chanko, are still named as defendants.
In the court decision, Judge Leslie Stein also ruled that the suit alleging a breach of patient/physician confidentiality could continue while another charge of deliberate infliction of distress was dropped.
The defendants’ actions “were not so extreme and outrageous as to support a cause of action’s by the patient’s family members for intentional infliction of emotional distress,” she wrote. However, Stein added that she disagreed with an argument from the hospital that in order to support the family’s argument, the medical information would have to be embarrassing or something that a patient would want to keep secret.
“NY Med” was being filmed at New York Presbyterian in 2011, when Chanko’s ultimately fatal accident led him to a hospital where his treatment and eventual death were filmed. When the show aired over a year later, his face was blurred and his voice obscured but his widow, Anita, recognized him immediately when watching an episode. At the time of his arrival at the hospital, she’d been prevented from holding his hand as he was being brought down the hall in a gurney. She hadn’t known a camera crew had access to him or to a seemingly private conversation between her, other relatives and a doctor as he gave them the bad news that the Chanko family patriarch couldn’t be saved. The doctor had been wearing a microphone, while a camera was aimed at the door of the room where the conversation took place. Anita later said she wondered if she’d been denied the opportunity to be with him so she wouldn’t notice the cameras.
Stein wrote that the airing of someone’s final moments without their consent “would be considered reprehensible by most people, and we do not condone it.” However, since the 50 minutes of footage was edited down to three and efforts were made to conceal the patient’s identity, the actions didn’t amount to “extreme and outrageous conduct” enough to support the claim of intentional infliction of distress.
A spokesperson for the hospital declined to comment on the suit.
Full disclosure: Ken Chanko, Mark Chanko’s son, a retired teacher and journalist living in Stuyvesant Town, was at one time a film critic for this newspaper.
Asked for his thoughts on the recent court decision, he told Town & Village he and his family were “fine” with the fact that ABC is no longer a defendant.
“It’s not ABC that’s responsible to protect patients’ privacy,” he said. “It was up to the hospital to protect patient privacy. The point is that the case is going forward.
“We’re hopeful,” he added, “that they find (the hospital) violated medical confidentiality when they exposed his information to a camera crew without getting consent beforehand. It was pretty blatant what they did. It’s pretty outrageous that they didn’t get in touch with us in 16 months (before the show’s airing.) They knew we were in the hospital.”
Ken added that even had the hospital later sought to get the family’s okay, that still wouldn’t have been enough.
“You can’t film first and attempt to get consent later,” he said. “That’s the basic thing here. They want these dramatic moments for ratings when someone has less than an hour to live — and people are not in a position to give consent. But that’s when the violation happens. It’s great for networks, but unfortunately, profit seems to come before patient privacy.”
When the show aired in 2012, and the Chankos complained to ABC and the hospital, the network agreed to pull the segment from DVDs of the show and no longer air it, but that wasn’t enough for the family. Nor was a discussion early on about reaching some sort of settlement.
Ken explained that this would have required a nondisclosure agreement, when the family’s primary concern was making sure getting filmed without permission wouldn’t happen again to another patient.
“We wouldn’t have been able to go to our legislators. I couldn’t be talking to you,” he said. He also said his family is hopeful about what may be found in the footage of the show’s segment involving Mark, since attorneys will now have access to that.
In related news, legislation introduced last year that would make it illegal to film patients without prior consent is expected to come up for a vote before the end of the legislative session in June. Chanko said he was told this by the author of the bill, Queens Assembly Member Ed Braunstein.
Additionally, last summer, following a push by elected officials including Council Member Dan Garodnick, a trade group representing hospitals in New York, including New York Presbyterian, committed in writing to no longer continuing with the practice of filming patients without first obtaining permission.
A federal complaint into the hospital’s conduct is currently in its third year, while an investigation conducted by the State Department of Health did find the hospital violated its own procedure in the making of the show, Chanko said.