
Dying in the E.R., and on TV Without His Family’s Consent - whyenot
http://www.nytimes.com/2015/01/04/nyregion/dying-in-the-er-and-on-tv-without-his-familys-consent.html
======
UnoriginalGuy
> In court filings, the hospital and ABC do not dispute that they did not have
> consent from Mr. Chanko or his family, but they say the patient is not
> identifiable to the public. The network has asserted that because “NY Med”
> is produced by its news division, it is protected by the First Amendment.
> Lawyers for NewYork-Presbyterian have argued that the state does not
> recognize a common law right to privacy and that any privacy right Mr.
> Chanko did have ended upon his death. They say that the Chankos themselves
> are responsible for their loss of privacy.

If this isn't a massive HIPAA violation then it SHOULD Be. The fact his wife
and likely others could identify him just proves that simply blurring out his
face does not protect his privacy(!).

Blaming the family just makes me hate these people. They're profiting off of
the misery and suffering of others (see the quote by the hospital PR guy
earlier in the article), and it is wrong.

But the US is all about profit over people so this kind of thing is just a
natural progression of what is already going on in all kinds of areas.

> The family did not know until the episode was broadcast that a camera was
> focusing on the closed door of the room where they had gathered and that
> audio of Dr. Schubl was being recorded.

That is got to be illegal, right..? If not that is super immoral.

These people have absolutely no conscience at all. The doctor should have
their medical licence reviewed for serious ethical lapses.

~~~
dghughes
This is the same show and same hospital NewYork-Presbyterian Hospital where a
nurse was fired due to an Instagram photo she posted of a messy ER room
(without anyone in it) the hospital administrators deemed insensitive.

~~~
pyre
It was insensitive that she didn't correctly monetize that photo, and cut them
in on the profits...

~~~
in_cahoots
The article states that the hospital didn't actually make money off of the
show. It was all about publicity, so that when you or a loved one is hurt,
their name is the first one to come to mind.

~~~
ak217
They got the publicity all right, just not the kind that they wanted. Now
NewYork-Presbyterian will be known as that hospital that tried to get
publicity out of their patient's suffering.

~~~
nraynaud
I don't think I would ever bring a loved one in an hospital with a religious
name if I have the choice.

~~~
cldellow
Just to clarify, if given the choice between two hospitals: "St. Joseph's
Hospital" and "John Smith's Hospital" and you hear that the former has a
statistically significant advantage in the area of care that your loved one
needs...

you would choose the second one, because of its name?

~~~
nraynaud
frankly, I live in a country where only old ones have a religious name (for
historical reasons, they are owned buy public entities), the new ones bear the
name of a famous doctor, and the free ambulance will send you to the closest
public one (unless it's specialized, like extended burns, then it's probably
free helicopter to the relevant hospital).

I'm still curious of how carefully selected the publicly available positive
statistics on an hospital having a marketing department and operating on a
competitive basis are.

------
bonobo3000
Holy shit does anyone else see a huge problem with filming a fucking reality
show in an E.R? Distracting and intruding upon medical professionals doing
their jobs when lives are at stake to make a TV show? Thats absurd!

~~~
nmc
_" That's absurd!"_

You misspelled "American".

~~~
arethuza
I don't think those kinds of shows are unique to the US - _24 Hours in A &E_
is very popular here in the UK:

[http://en.wikipedia.org/wiki/24_Hours_in_A%26E](http://en.wikipedia.org/wiki/24_Hours_in_A%26E)

Of course, with the NHS there is a general feel good factor in that we get to
see our tax money being used to do good. Indeed I have seen criticisms of _24
Hours in A &E_ that because it generally shows the NHS is a positive light and
as the NHS is pretty unashamedly a socialist endeavor that shows likes this
are politically biased!

~~~
SyneRyder
Australia also has a similar show RPA (named after Royal Prince Alfred
Hospital) that ran for at least 13 years:

[http://en.wikipedia.org/wiki/RPA_%28TV_series%29](http://en.wikipedia.org/wiki/RPA_%28TV_series%29)
[http://www.9jumpin.com.au/show/rpa/episodes/](http://www.9jumpin.com.au/show/rpa/episodes/)

------
ars
So because it's news they have the right to film it?

Is there no expectation of privacy from news crews? I thought they could only
film in public - a private hospital room should certainly not count.

Anyone have a copy of what the appellate court wrote? (Or can summarize their
argument?)

~~~
maxlybbert
I'm not a lawyer, so take this with a grain of salt.

As I understand it, it's legally best to get signed papers from the people
involved, or limit filming to public places. But there are ways to broadcast
something even if it was filmed in a private area and you don't have
permission of the person filmed. The most obvious thing to do is to blur out
the person's face, which the show did here. I believe that there is an
exception for "hot news" items (although this obviously didn't involve hot
news) and there are always obvious arguments about freedom of the press.

This is mainly an area of state law, so the rules will be different across the
US. The two big issues are right of publicity and right of privacy (
[http://www.law.cornell.edu/wex/publicity](http://www.law.cornell.edu/wex/publicity)
,
[http://www.law.cornell.edu/wex/Privacy](http://www.law.cornell.edu/wex/Privacy)
). The hospital is apparently arguing that New York's right of publicity
doesn't cover this case. I have no idea if that is correct.

HIPAA also comes into the picture (federal law, with many similar state laws).
I'm certainly no expert on HIPAA, but it seems to me that the obvious argument
would be that the hospital didn't release any private medical information, and
if the hospital is held responsible for information revealed by the show, the
"medical information" was along the lines of "he's dead" and not "he has an
STD that he'd prefer to keep private."

This is a case where it's asking how the law applies, how the law should
apply, _and_ what kind of reaction the general public should have. The show
was certainly insensitive to the family, and the hospital's reputation should
take a severe hit. And that applies regardless of what laws might have been
broken.

~~~
ubernostrum
I am also not a lawyer. But I did once work in a health-related field and had
to go through HIPAA compliance training. And the general issue is that simply
blurring out a face isn't enough.

The definition of Protected Health Information (PHI) is interpreted broadly,
such that the fact that a patient was in the ER due to an accident, received
certain types of treatment and died is protected.

Meanwhile, the definition of what is personally identifiable (i.e., ties
information about condition/treatment to a specific person) includes an
18-point list of potential identifiers; responsible practice is to remove all
of these prior to making information public. That 18-point list includes both
the geographic location of the treatment (should not be given in any form more
specific than the state) and the date of treatment (should not be given in a
form more specific than the year).

So I can see a strong argument that the hospital is on the wrong side of HIPAA
here. And given that their argument seems mostly to be "it wasn't Our Hospital
Medical Services, Inc., it was Our Hospital TV News Productions, Inc., and
that one isn't covered by HIPAA", I'd begin to suspect they believe it would
be a HIPAA violation for the hospital, too.

~~~
maxlybbert
I didn't realize how broadly Personal Health Information applied. Thanks for
the information.

------
rdtsc
Reality show world is really grasping at straws. Every single one wants to be
the next Duck Dynasty and you have all bunch of crazy and strange ideas. In
this case they are messing with people's lives. I am just waiting for the
meta-reality show -- a show about creating a reality TV show.

~~~
maxerickson
I don't think they are grasping at straws, the cable subscription model just
means there are lots of people willing to fund what ends up being relatively
cheap "original" programming.

I suppose a simple step forward would be to require that a broadcaster that is
owned by a cable company must offer the channels individually (which probably
wouldn't impact Disney, but a Comcast subsidiary shouldn't be using channel
bundles to extract revenue from Comcast competitors).

~~~
_asummers
Comcast would fight tooth and nail to prevent that. Comcast Sports Net is a
huge contention point in negotiations with Verizon, RCN, etc. As far as it
impacting Disney, ESPN is the most expensive cable channel you have.
Debundling that would lose Disney a lot of money. Disney wouldn't let that
happen.

~~~
maxerickson
Sure, I'm not saying the big industry players would enjoy it, I'm saying I
think it would be reasonable regulation (there aren't really big technical
efficiencies from integrating production and distribution, especially once you
are already doing outside distribution).

I think it wouldn't impact Disney because they aren't really a player in
traditional distribution (but they play online with a stake in Hulu and other
efforts, but those are sort of already unbundled, I think because they
envision better revenues that way).

~~~
_asummers
What grounds would regulators have to tell these private businesses they have
to distribute that way? Would it just be the creation of a new law requiring
it, and that's that? I'm not sure how those sorts of things work, it's well
out of my expertise, but I'm legitimately curious. In that scenario, could the
company appeal the law?

~~~
maxlybbert
This was actually a big deal a few years ago (
[http://www.coyoteblog.com/coyote_blog/2005/12/your_cable_bil...](http://www.coyoteblog.com/coyote_blog/2005/12/your_cable_bill.html)
). The FCC thought it could create this requirement under its existing
authority to regulate the airwaves, but the Supreme Court ruled that it would
require a new law.

The economics of cable (and satellite) aren't obvious: it really doesn't cost
any more to offer 150 channels instead of 100. The signal for every channel
the cable company offers makes it to your house, and the cable company's
equipment filters out the channels that you haven't paid for.

There's no reason to think it will cost less to get those channels filtered
out one at a time instead of as bundles.

------
mschuster91
The TV team should have asked the family of the patients (or the patients
themselves, if survived) prior to starting editing.

~~~
lotu
I'm guessing the whole "Hello, I know you husband just died but would you mind
if we put his death in a educational TV series designed to encourage people to
become doctors" just doesn't across as sensitive. Could they have found the
family later? Maybe, I don't know if the TV crew had access to the patient's
name and family contact information, it is possible they could not contact the
family even if they wanted to.

~~~
DanBC
As mentioned elsewhere in this thread "24 hours in A&E" is filmed in an
English A&E unit. People die on the show. This show manages to ask permission.

------
rab_oof
Regardless of legalities, this sort of show lacks taste or any shred of class,
and merely tarnishes the hospital's name in pursuit of PR branding. And it's a
travesty what was done to that family.

This is one time I hope their lawyers turn the screws on these corporations
and extract as much capital as possible.

------
classicsnoot
This family strikes me as litigious as hell. if they feel wronged that deeply,
and they have the deep pockets that are essential to suing everyone in sight
and running a media campaign (of which we are now all a part), then could they
find it in their hearts to not sue the person who physically did all he could
to help their dead relative? Why sue the doctor?

Because their lawyers said they had a chance at extracting money. Make no
mistake; this is about money and pride. People get filmed dying nearly every
day, and much of that death reel finds its way to the Public. These people
have the means and, though this is a complete guess on my part, the experience
to wage a lawsuit battle with a Hospital, a Production Company, and a Doctor.

I am very familiar with the heartlessness required to produce TV, especially
reality TV. I hate it every time some dipshit redneck violates a suspect's
rights on COPS by being vague, or someone having a horrible day gets mocked by
the by-standers as their crappy car gets towed. We are a culture that indulges
in the misery of others. Just because a few rich people tasted what everyone
from low income areas eat for breakfast does not seem to me a good reason to
flip the table and hunt down camera people.

~~~
maxlybbert
I actually wanted to make an argument from the hospital's side of things: some
of arguments the hospital's making sound heartless, but there's a very good
chance that the hospital's insurance company came up with those arguments
(well, the insurance company's lawyers).

It's hard to imagine a system more effective at upsetting people than the US
legal system. There's a good chance that the family brought the doctor into
the suit to get money from his insurance company. But they may not have had
much choice. In the US, the court will spend a lot of time trying to decide if
the right people were sued, and if people should be dropped or others added. I
don't see how the doctor would have avoided getting sucked into the suit.

The lawyers will spend a lot of time negotiating behind the scenes. The family
will try to get the judge to declare any liability "joint and several" which
would allow the family to collect the full judgment (assuming there is one)
from any of the parties, who then can work out the details among themselves.

The system encourages, and in some cases requires, this kind of manuevering.
So don't assume the people involved are actually this weird, mean or
heartless.

~~~
justin66
The doctor was complicit in doing something disgusting and, one hopes,
illegal. Why wouldn't you name him in a lawsuit?

classicsnoot mentions that the doctor "physically did everything he could to
help their dead relative" but that very obviously didn't include helping to
preserve his patient's dignity by keeping a camera crew away from him.

What a nightmare. I'm still slightly in awe that a hospital would put their
patients through this. That TV people would put someone through it is, of
course, not shocking at all...

~~~
maxlybbert
Until I get further information, I will assume the doctor wasn't actively
involved in the show's production. I'll assume that the hospital announced one
or more camera crews would be in the emergency room, and the doctor assumed
the people editing the footage knew the relevant laws and would act
professionally.

Even so, I don't see any way for the doctor to avoid being sued. But I really
doubt he had much influence on the show.

~~~
whyenot
The doctor was wearing a mic. I think it would be very hard to argue he _wasn
't_ involved in the production. He also has at least a moral obligation to
protect the privacy of his patients. It's a shame these things end in
lawsuits, but he does deserve some kind of punishment or reprimand. Maybe
suspend his license for a few months.

~~~
maxlybbert
I have never been involved in a reality TV show (and my job isn't exciting
enough for the TV crews to come knocking) so I have to only guess how it
works. But I would expect that wearing a microphone doesn't give the doctor
much input on which segments to use, and that the doctor wouldn't have been
involved in getting permissions from the patients and families.

It's obvious in this case that the show wasn't able to get permission from the
family (and, given that the family was surprised; the show wasn't able to
contact the family), so they blurred the guy's face and thought that made him
unidentifiable. I don't believe the doctor had any influence on that decision.

~~~
maxlybbert
I find it amusing that I got downvoted for stating the doctor probably had
little creative input in the show.

