Relates to requiring a medical facility or related services to obtain express prior written consent before the making and/or broadcasting of visual images of a patient's medical treatment

Subsection 2 of this new section provides that right to privacy in treatment and caring for personal needs afforded by subsection 1 requires the health care facility to obtain a patient's express written consent on a separate document prior to of a recognizable image or speech of the patient involved in a medical procedure. The separate document can only be used for the purpose of obtaining consent for the broadcasting of the patient's recognizable image or speech from a health care facility, and must be obtained prior to broadcasting footage of the treatment. A patient's power of attorney, health care proxy, or next of kin may grant such consent if it cannot be reasonably obtained from a patient due to the patient's incapacity.

Subsection 3 provides definitions. Paragraph (a) defines the term "medical facility" for purposes of this new section to mean "a residential health care facility, general hospital, free-standing ambulatory care facility, diagnostic and/or treatment center, and clinics authorized" by Public health Law Article 28, or an ambulance service, regardless of whether it is a paid or voluntary ambulance service. Paragraph (b) defines the term "quality improvement and/or quality assurance purposes" to mean "any evaluation of services provided in such medical facilities for purposes of improvement in safety, quality or outcomes." Paragraph (c) defines the term "education or training of health care personnel" to "mean a program of education or training of health care personnel or students being educated or trained to be health care personnel, that the health care facility has authorized. Finally, paragraph (d) defines the term "broadcasting" of an image or speech to mean" transmission by broadcast, cable, closed circuit, internet or other television or visual medium, social media, or other system by which it can be viewed in violation of the privacy rights and expectations of a patient. "

New subdivision 4 provides that "nothing in this section shall diminish or impair any right or remedy otherwise applicable to any patient. "

Section 2 of this bill amends section 50-c of the Civil Rights Law adds a private right of action for a violation of Section 2806-c of the public health law regarding the right to have privacy in treatment and in caring for personal needs, including the broadcasting of a recognizable image or speech of a patient involved in a medical procedure at a health care facility. This section also provides that the individual or his or her estate's representative may bring an action for damages, and the cause of action shall survive the death of the individual.

Section 3 of this bill provides that this act shall take effect immediately.

Justification

Under the federal Health Insurance Portability and Accountability Act ("HIPAA"), a patient's private health information is not to be shared with anyone not designated by the patient. As a result of HIPAA, hospitals and doctors have imposed many rules that are intended to protect patient privacy. Despite these measures, a reality medical television show on ABC, "NY Med", has broadcast intimate details of patients health care at New York-Presbyterian Hospital/Weill Cornell Medical Center.

One patient, Mark Chanko, who was struck by a sanitation truck, passed away at New York-Presbyterian Hospital/Weill Cornell Medical Center during the course of the filming NY Med. Mr. Chanko's widow, Anita, was watching an episode of NY Med when a new segment of the show started. As the segment progressed, she realized that, even through the patient's face had been blurred out, the patient who was the subject of the new segment was her deceased husband, Mark. She heard her husband asking for her while in his hospital bed, and saw his eventual death on her television. Mrs. Chanko became incredibly distraught after having to relive the most horrifying experience of her life. The hospital and NY Med did not seek permission from either Mark or his family before commencing the filming, or even before the show was broadcast.

Patients have an expectation and a right to privacy when being treated in a medical facility. To film and broadcast this treatment without permission is an outrageous violation of their rights to privacy as a patient.

Viewing the medical treatment, including the death, of a close family member, is traumatic for those who have gone through such a disturbing experience. Therefore, seeking permission from patients or those who are their power of attorney, health care proxy, or next of kin will prevent patients and their families from being subject to additional suffering.

Legislative history

2015: S.4622-A - Referred to Health

Fiscal implications

None to the State

Effective date

This act shall take effect immediately.