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The Department of Health and Human Services’ Office for Civil Rights (OCR) has fined New York Presbyterian Hospital (NYP) $2.2 million for allowing patients to be filmed for a TV show without obtaining prior permission from the patients.
In 2011, an ABC crew was permitted to film inside NYP facilities for the show “NY Med” featuring Dr. Mehmet Oz. A number of patients were filmed including a dying man and another patient who was seriously distressed. The footage was aired in 2012. Authorization to film had been given by NYP, although not all patients gave their consent to be filmed.
One of the patients was Mark Chanko . He had been rushed to hospital after being hit by a sanitation truck. He was filmed receiving treatment from chief surgery resident Sebastian Schubl. Despite the best efforts of Schubl, Chanko died from the injuries sustained in the accident.
Chanko had not given NYP permission to film him. To hide his identity ABC used blurring and voice alteration software. This did not prevent the crew from viewing Chanko’s PHI and it was not sufficient to hide his identity from viewers of the show. One of those viewers was Chanko’s wife. She was able to recognize her husband from the footage shot at the hospital.
Mrs. Chanko filed a complaint in early 2013 claiming the privacy of her husband had been violated. OCR launched an investigation into the privacy breach and discovered the hospital had allowed two patients to be filmed without prior consent being obtained. Even when one medical professional at the hospital told the crew to stop filming they continued.
The OCR investigation also revealed that the ABC crew had been given “virtually unfettered access” to the hospital. According to a statement released by OCR, NYP created “an environment where PHI could not be protected from impermissible disclosure to the ABC film crew and staff.”
OCR said allowing patients to be filmed without authorization was a blatant violation of HIPAA Rules. NYP claimed to be unaware that HIPAA Rules had been violated. The film crew was allowed 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.
OCR investigators determined that the privacy of two patients had been violated as their PHI had been impermissibly disclosed to the film crew and other staff of NY Med. NYP was also found to have failed to safeguard 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.
In addition to the financial penalty, NYP will be monitored by OCR for two years to ensure compliance with HIPAA Rules
HIPAA Rules Covering the Filming of Patients Inside Hospitals
HIPAA does not prohibit the filming of patients inside hospitals, but prior to filming the hospital must obtain written authorizations from all patients in the area where filming takes place. Written authorizations must also be obtained from any patient whose protected health information will be made accessible to the media.
It is not sufficient to film patients and then obtain consent to broadcast the material after the event, neither is it permissible to use blurring, pixilation, or voice alteration to mask the identities of patients whose consent has not been obtained.
Further information on HIPAA Rules relating to the disclosure of PHI to the media can be found on this link.