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Paul Zimmerman
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NY Hospital to Pay $2.2 Million for Allowing TV Crew to Videotape Dying Patient

On the ABC television series “NY Med,” doctors from New York-Presbyterian Hospital (NYP) are profiled as they perform medical procedures. However, in an effort to keep it “real,” the show’s crew has landed the hospital in hot water. The Department of Health and Human Services, Office for Civil Rights (OCR) announced that it has reached a $2.2 million settlement with NYP for the “egregious disclosure” of two patients’ protected health information (PHI) to film crews and staff during the filming of “NY Med,” without first obtaining authorization from the patients. In particular, OCR found that the hospital allowed the television crew to film a dying patient and another person in significant distress, even after a medical professional urged the crew to stop.

Among the facts underlying the settlement is the story of patient M.C., who was hit by a garbage truck in 2011 and taken to NYP, where he was filmed as doctors unsuccessfully attempted to save his life. M.C.’s widow, A.C., recognized her husband while watching the show in 2012, though his face was blurred and his voice was muffled.

The family’s story was chronicled in 2015 by ProPublica, in collaboration with The New York Times. A.C. filed a complaint in January 2013, and the case has wound its way through the court system over the past three years. In April 2016, New York’s highest court revived the lawsuit. In a unanimous decision, with one judge not taking part, the State Court of Appeals allowed the suit to proceed against NYP on the issue of the breach of the doctor-patient confidentiality owed to M.C. Apart from the issues of civil liability that will be played out in a New York courtroom, this case raises substantial concerns from a regulatory perspective.

The Health Insurance Portability and Accountability Act (HIPAA) is designed to guard against the disclosure of a patient’s PHI, including unauthorized photo and video, as was the case in this instance. By allowing patients to be filmed without their authorization, NYP violated HIPAA, thus prompting the settlement (although, as a standard condition of the settlement, the hospital admitted no wrongdoing). In addition to the $2.2 million, the settlement agreement provides that OCR will monitor NYP for two years in order to ensure that NYP remains HIPAA compliant.

OCR also found that NYP “failed to safeguard protected health information and allowed ABC film crews virtually unfettered access to its health care facility, effectively creating an environment where PHI could not be protected from impermissible disclosure.”  Allowing patients receiving urgent medical care to be filmed by members of the media without prior authorization from the patient “blatantly” violates HIPAA.

OCR’s Director Jocelyn Samuels noted, “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.”  

OCR has made available a new FAQ sheet on the subject of HIPAA Rules and media access, which can be found here. Not only are covered entities prohibited from disclosing protected health information to members of the media without a prior patient authorization, they must also take affirmative steps to prevent incidental disclosures by ensuring that other PHI is not easily observable in the environment being photographed or filmed.

This settlement, and the resulting new FAQ item, should come as no surprise to anyone familiar with HIPAA, or who has been monitoring OCR lately. Just yesterday, OCR announced a $750,000 settlement with an orthopedic group that disclosed PHI to a potential business partner without a business associate agreement. OCR is demonstrating a zero tolerance policy with HIPAA violations in near-weekly settlement announcements over the past few months, and through its concurrent Phase 2 HIPAA Audit Program. 

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.