The Department of Health and Human Services’ Office for Civil Rights (OCR) has fined New York Presbyterian Hospital (NYP) $2.2 million for permitting patients to be filmed for a TV show without receiving prior permission from the patients.
In 2011, an ABC crew was allowed to film from the interior NYP facilities for the show “NY Med” featuring Dr. Mehmet Oz. A number of patients were filmed including a dying man and a patient who was experiencing severe distress. The footage was broadcast in 2012. Authorization to film had been given by NYP, although not all patients gave their official consent to be shown on the public airing.
One of the patients filmed was Mark Chanko, who had been rushed to hospital after being struck by a sanitation truck. He was filmed undergoing treatment from chief surgery resident Sebastian Schubl. Despite the best efforts of Schubl, Mr. Chanko passed away from the injuries sustained in the accident.
Chanko had not given NYP permission to record him. To hide his identity ABC used blurring and voice alteration technology. This did not prevent the crew from viewing Chanko’s PHI and it was not simply adequate to hide his identity from viewers of the show. One of those viewers was Mr Chanko’s spouse. She was able to identify her husband from the footage recorded at the hospital.
Mrs. Chanko submitted a complaint in early 2013 alleging the privacy of her husband had been breached. OCR began an investigation into the privacy breach and discovered the hospital had allowed two patients to be recorded without prior consent being received. They found that, even when one medical professional at the hospital told the crew to stop filming they had continued regardless.
The OCR investigation also showed that the ABC crew had been given “virtually unfettered access” to the hospital and facilities. According to a statement issued by OCR, NYP created “an environment where PHI could not be protected from impermissible disclosure to the ABC film crew and staff.”
OCR said permitting patients to be filmed without authorization was a blatant breach of HIPAA Rules. NYP claimed to be unaware that HIPAA Rules had been breached. The film crew was permitted to use the hospital for the NY Med show to “educate the public and provide insight into the complexities of medical care,” as well as to raise awareness of how medical treatment is provided in hospitals and these facilities.
OCR investigators ruled that the privacy of two patients had been breached as their PHI had been disclosed to the film crew and other staff of NY Med without proper permission. NYP was also found to have not safeguarded patients’ PHI during the filming of the show: violations of 45 C.F.R. § 164.502(a) and 45 C.F.R. § 164.530(c) respectively.
Along with with the financial penalty, NYP will be overseen by OCR for two years to ensure compliance with HIPAA Rules