Frank Butler

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by Annie Waldman

Bruised by criticism after a reality TV show surreptitiously recorded and aired a man’s death, New York City hospitals will no longer allow patients to be filmed without getting prior consent.

The Greater New York Hospital Association, an umbrella organization that represents all of New York City’s hospitals, has asked its member institutions to put an end to filming patients for entertainment purposes without getting their permission. The move came in response to an issue raised by a ProPublica story published with The New York Times earlier this year.

“Our member hospitals strongly agree that patients deserve privacy in the course of receiving care and that their medical information should be kept confidential in accordance with the law,” said Kenneth E. Raske, the president of Greater New York Hospital Association, in a letter to City Council members last month. The letter was released this week.

ProPublica’s report, published in January, revealed how ABC’s reality show “NY Med” filmed the death of Mark Chanko, a patient at NewYork-Presbyterian/Weill Cornell Medical Center, without getting permission from him or his family. In July, New York City Council members demanded that city hospitals prohibit the filming of patients.

“Not everything is made for TV,” said New York councilmember Dan Garodnick in an interview. "When you go into a hospital, you deserve to know that your sensitive moments are not going to end up on primetime.”

Chanko’s family only found out about the filming after the episode featuring his death aired. The family was not even aware that camera crews had been in the emergency room during Chanko’s final moments.

“My father should have never been on a reality television show,” said Kenneth Chanko, Mark Chanko’s son. “He went into the hospital with less than an hour to live. The fact that videographers were there waiting for drama to happen is just reprehensible to me.”

The family filed a lawsuit against ABC, NewYork-Presbyterian and the doctor who treated Chanko. Although the case was dismissed before discovery, the New York State Court of Appeals recently agreed to hear the case. Oral arguments for the case are expected to be heard in the coming months. Kenneth Chanko also filed a complaint with the U.S. Department of Health and Human Services’ civil rights office. It is still under review.

NewYork-Presbyterian did not respond to a request for comment on the hospital association’s stance on filming, or whether NewYork-Presbyterian would do as the group has asked. ABC News declined to comment citing pending litigation. It remains unclear whether “NY Med” will film a third season at NewYork-Presbyterian.

In court filings, the hospital and the network have acknowledged that they did not have consent from Chanko or his family, but have argued that Chanko was unrecognizable to the public. Lawyers for the network added that “NY Med” is protected by the First Amendment. The hospital’s attorneys have also asserted that state law only grants the right of privacy to the living and that Mark Chanko’s privacy rights ended with his death.

Dr. Arthur Caplan, the head of the division of medical ethics at New York University’s Langone Medical Center, said reality shows should never film patients without their consent. (Mark Chanko’s daughter-in-law is affiliated with New York University’s medical ethics division.)

“People don’t go to the hospital to be on reality television,” Caplan said. “It’s exploitation and it shouldn’t be happening anywhere in a hospital, a nursing home, or any other healthcare setting.”

In response to ProPublica’s reporting, state lawmakers have recently introduced legislation that would make it a felony to film patients during treatment without getting their consent first. State Assemblyman Edward Braunstein, a Queens Democrat and the sponsor of the proposed bill, applauded the move by the Greater New York Hospital Association, but said this was just the first step.

“We feel that we want a more permanent fix — something in the law,” Braunstein said in an interview. “Our legislation applies not just to hospitals, but anyone who broadcasts treatment without consent.”

The bill currently has 19 co-sponsors and has been referred to the Rules Committee. The legislation has been amended to allow filming for certain purposes, such as education or security. Braunstein also plans to propose legislation to allow patients and their families to sue for privacy violations, which is currently not allowed under federal patient privacy laws or New York State’s Patients’ Bill of Rights.

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