By Sabina Mollot
On Monday, a court ruled that the family of Mark Chanko, a former resident of Stuyvesant Town whose death in 2011 after being hit by a truck was filmed for the show “NY Med,” couldn’t have unlimited access to the footage.
The Chankos had hoped to get access to over 50 minutes of footage, which had been used for a four-minute long segment of one episode of the ABC reality mini-series. That episode featured Chanko’s treatment in his final moments, including his death. The Chankos had argued the footage should be turned over to them, because they consider it part of Mark’s medical records.
The family sued after the show aired in 2016 since the footage of Chanko was taken without his or his family’s knowledge or permission. Chanko was shown with his face blurred and his voice altered. However, his widow, Anita, recognized him immediately.
Arguments were heard last Wednesday, and according to Ken Chanko, Mark’s son, who also lives in Stuyvesant Town, both the attorney for ABC and the hospital, New York Presbyterian, argued that the footage should remain sealed. ABC is no longer a defendant in the ongoing litigation alleging breach of patient privacy which is now just against NY Presbyterian and the elder Chanko’s physician, Sebastian Schubl.
In the decision over the footage, New York Supreme Court Judge Manuel Mendez said the Chankos’ argument that the family patriarch had his HIPAA laws violated “does not create a right to assert or resurrect privacy claims against ABC or to circumvent ABC’s rights under the Shield Law.”
The Shield Law protects information obtained by journalists in the process of news gathering.
Ken Chanko said the decision didn’t come as a complete surprise to his family, though of course they were disappointed.
“If the hospital had done the filming, it would have been part of his medical record,” he said, “but because the hospital entered into an agreement with a third party, ABC, to film it, all of a sudden it’s not part of his medical record. If we hadn’t brought any litigation, we would never have had access to it. It doesn’t seem quite right from a patient privacy point of view.”
Ken added that in court, ABC had argued the footage was solely the network’s property while NY Presybyterian said the footage shouldn’t be considered part of Mark Chanko’s medical record because even no one at the hospital had seen it.
“Such ignorance doesn’t seem like the way a hospital should be operating in ensuring patient privacy,” he said.
While ABC does have to release footage to the court for evidence purposes in the case, the family had wanted it released with no strings attached, so if they chose to, they could have shared it with elected officials or journalists.
However, the case has still attracted the interest of newspapers and law journals as well as elected officials, with a Queens Assembly member, Ed Braunstein, having authored legislation that would make it a crime to film a patient without prior consent. The bill has the support of local elected officials.
Full disclosure: Ken Chanko, a retired teacher and former journalist, was at one time a film critic for this newspaper and still submits occasional columns.
He is now hoping to get the pending patient privacy bill amended to have footage of a patient be legally defined as a medical record.
Asked about this, a spokesperson for Braunstein, Dave Fischer, said the assembly member would look into the suggestion.
“It’s definitely something we could talk to experts about,” said Fischer, adding that the bill will be reintroduced after the legislation session starts in January. While the National Association of Broadcasters has some concerns about the bill, Fischer said Braunstein still expects that it will pass at least in the Assembly.
Last spring, the Chankos scored a related victory when a three-year-long investigation into the case by U.S. Department of Health and Human Services’s (HHS) Office resulted in the hospital having to pay a settlement of $2.2 million.
The federal agency ruled that the hospital had violated patient privacy laws by filming the Chanko segment. Ken Chanko said his family was pleased with the results though they personally wouldn’t be seeing damages from the settlement. Meanwhile, the hospital maintained that it had not done anything wrong because the “NY Med” series was aimed at educating the public and had “garnered critical acclaim.”
Despite the hospital’s claims, the case also resulted in a commitment from the umbrella organization that represents numerous New York hospitals, including NY Presbyterian, to no longer film patients without prior consent.
A spokesperson for ABC did not respond to a request for comment. A spokesperson for NY Presbyterian declined to comment, citing the pending litigation.