By Sabina Mollot
The family of the former Stuyvesant Town resident whose final moments after being hit by a truck were filmed without permission and aired on a reality show, scored a major victory last Thursday when a federal investigation resulted in a $2.2 million settlement with the hospital.
For the past three years the U.S. Department of Health and Human Services’s (HHS) Office for Civil Rights (OCR) had been investigating whether the hospital, New York Presbyterian, violated HIPAA rules when it allowed a camera crew to film Mark Chanko without his or his family’s knowledge. The footage of Chanko, including his death, and the doctor delivering the sad news to his family (who didn’t know the doctor was wearing a microphone) was used in an episode of an ABC show called “NY Med.” It aired 16 months after Chanko’s visit to the hospital in 2011. His face was blurred and his voice altered but Chanko’s widow, Anita, recognized him immediately when watching “NY Med” at home.
A separate lawsuit filed by the family is set to be heard in the Court of Appeals following a decision earlier this month to allow it to proceed.
Additionally, legislation that would ban filming patients at hospitals without prior consent, which was drafted in response to Chanko’s filming, is currently pending at the state level.
On the settlement, the OCR referred to two patients, including Chanko, who had been filmed for the show, despite a medical professional asking the TV crew to stop filming.
“In particular, OCR found that NYP allowed the ABC crew to film someone who was dying and another person in significant distress, even after a medical professional urged the crew to stop,” the office said in a written statement. “By allowing individuals receiving urgent medical care to be filmed without their authorization by members of the media, NYP’s actions blatantly violate the HIPAA Rules, which were specifically designed to prohibit the disclosure of individual’s PHI (protected health information), including images, in circumstances such as these.”
In addition to the $2.2 million the hospital will have to pay, the OCR said it will be monitoring New York Presbyterian to make sure it complies with patient privacy rules in the future.
The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information.
“This case sends an important message that OCR will not permit covered entities to compromise their patients’ privacy by allowing news or television crews to film the patients without their authorization,” said Jocelyn Samuels, OCR’s director. “We take seriously all complaints filed by individuals, and will seek the necessary remedies to ensure that patients’ privacy is fully protected.”
In response to the investigation’s conclusion, Ken Chanko, Mark’s son, who also lives in Stuyvesant Town, said he and his family were “very happy” with the settlement, which they won’t personally get damages from.
“This is federal, this is nationwide,” said Ken. “This has a greater impact for patient privacy rights whatever happens with our lawsuit or the legislation in Albany. Hospitals will have to be mindful of protecting patient privacy rights.”
The announcement came after complete silence from the OCR, with Ken being told the office couldn’t comment on the investigation while it was still open.
“They’d been investigating for three years and we were beginning to wonder if anything was going to happen,” said Ken.
Full disclosure: Ken Chanko, a retired teacher and former journalist, was at one time a film critic for this newspaper.
Asked for comment on the settlement, New York Presbyterian maintained that it did not violate HIPAA, noting that the show was educational.
In a written statement, the hospital told Town & Village, “New York-Presbyterian reached agreement with the Office of Civil Rights (‘OCR’) in order to bring closure to OCR’s review process.
“Our participation in the ABC News documentary program ‘NY Med’ was intended to educate the public and provide insight into the complexities of medical care and the daily challenges faced by our dedicated and compassionate medical professionals. This program, and the others that preceded it, garnered critical acclaim, and raised the public’s consciousness of important public health issues, including organ transplantation and donation. It also vividly depicted how our emergency department medical team works tirelessly every day to save patients’ lives. The hospital continues to maintain that the filming of this documentary program did not violate the HIPAA Privacy Rule.
“New York-Presbyterian Hospital is proud to serve our community and to continue our commitment to delivering the very best patient care while protecting and respecting patient privacy.”
However, last summer, an umbrella group representing hospitals in New York, including NY Presbyterian, said that hospitals would commit to no longer filming patients without getting consent first.
“NY Med,” a mini-series, which featured Dr. Mehmet Oz, is no longer a defendant in the Chankos’ lawsuit, nor is ABC. Following the judge’s recent ruling allowing the litigation to proceed, the case is now just against the hospital and doctor Sebastian Schubl, who handled Mark Chanko’s care.
On the legislation, which has faced some scrutiny by the broadcast industry, the bill’s author, Assembly Member Ed Braunstein of Queens has not been asked by the Broadcast Association to make any specific changes, Braunstein’s chief of staff, David Fischer said. Fischer added that the bill has passed the Assembly’s health committee and the office is now studying the OCR’s decision to see if any changes should be made based on the settlement.