A widow unwittingly came face-to-face with her husband's dying moments — by accident and without consent — when ABC's medical reality show "NY Med" showed the 2011 death of Mark Chanko at New York Presbyterian Hospital/Weill Cornell Medical Center.

Now New York Presbyterian Hospital has been hit with a U.S. Department of Health and Human Services [DHH] fine of $2.2 million for giving such access to the Dr. Mehmet Oz-starring show.

Beyond the lack of consent, the DHH also found that the hospital had permitted filming to continue "even after a medical professional urged the crew to stop."
“You could hear his speech pattern. I hear my husband say, ‘Does my wife know I’m here?’," Anita Chanko told the New York Times last year. “I hear them saying his blood pressure is falling. I hear them getting out the paddles and then I hear them saying, ‘O.K., are you ready to pronounce him?’ ”

Neither she, nor any family member, had granted permission to film or broadcast these moments. “I saw my husband die before my eyes.”

The case highlights the dilemma of those seeking to convey — even with the best of intentions — what goes on in health care. "We have heard many stories of people who were inspired to go to medical school, to become nurses or paramedics, or to head into particular specialties like trauma or transplant surgery after watching our show," Terence Wrong, executive producer of "NY Med," told ProPublica in a 2015 email, although he would not speak specifically about Chanko's case at that time.

The hospital's public affairs department initiated contact with Wrong after seeing his coverage of Johns Hopkins Hospital. “We wanted to show what happens in New York,” former NYP VP and Vice Provost for Public Affairs Myrna Manners told PR Week in 2012. “You can't buy this kind of publicity, an eight-part series on a major broadcast network.”

But publicity can never trump privacy, according to the DHH. “This case sends an important message that [the Office for Civil rights of the DHH] will not permit covered entities to compromise their patients’ privacy by allowing news or television crews to film the patients without their authorization,” OCR Director Jocelyn Samuels said in a statement. “We take seriously all complaints filed by individuals, and will seek the necessary remedies to ensure that patients’ privacy is fully protected.”

The OCR stated that by "allowing individuals receiving urgent medical care to be filmed without their authorization by members of the media, NYP’s actions blatantly violate the HIPAA rules."

The OCR also determined that the "virtually unfettered access" given to the show by the hospital created "an environment where PHI [patient health information] could not be protected from impermissible disclosure."

This move by the OCR "will have a chilling effect on hospitals going forward,” Joel Geiderman, co-chair of the emergency medicine department at Cedars-Sinai Medical Center in Los Angeles and chairman of the ethics committee of the American College of Emergency Physicians, told ProPublica last week. “Any hospital legal counsel worth his salt or any PR director would be committing malpractice in order to allow it to occur. It’s now embodied in a federal directive.”

Health IT Homepage