McDonough, Nolan, Palmesano, Peoples-Stokes, Schimminger, Simon
Add §2806-c, Pub Health L; amd §50-c, Civ Rts L
Relates to requiring a medical facility or related service to obtain express prior written consent before filming and/or broadcasting of visual images of a patient's medical treatment.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A420B
SPONSOR: Braunstein (MS) TITLE OF BILL:
An act to amend the public health law and the civil rights law, in
relation to prohibiting the making and/or broadcasting of visual images
of individuals undergoing medical treatment without prior written
consent
PURPOSE OR GENERAL IDEA OF BILL:
Relates to requiring a medical facility to obtain express prior written
consent before the making and/or broadcasting of visual images of a
patient's medical treatment.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Adds a new section 2806-c to the Public Health Law.
Section 2806-c (1) provides that every patient in a health care facility
in this State shall have the right to privacy in treatment and in caring
for personal needs, which includes the broadcasting of the recognizable
image or speech of such patient involved in a health care procedure
within the confines of such facility. This section also offers an excep-
tion when such broadcast is for the specific purposes of advancing the
health care treatment of the individual, a quality assurance program,
the education or training of health care personnel, or necessary securi-
ty purposes.
2806-c (2) provides an explanation of "privacy in treatment." Privacy in
treatment entails that the health care facility must obtain express
written consent on a separate document used solely for the purpose of
the consent to broadcasting, from the individual receiving treatment in
such facility, obtained before broadcasting the recognizable image or
speech of the patient in treatment. When the broadcast is for the
purpose of education or training of health care personnel, the patient
must be informed of and has the right to refuse the broadcasting for
that purpose.
If the patient cannot reasonably do so due to incapacity, a person who
is legally authorized to make health care decisions for the patient or
otherwise authorized to consent may grant such consent or exercise such
refusal.
2806-c (3) provides definitions. "Health care facility" means a residen-
tial health care facility, general hospital, free-standing ambulatory
care facility, diagnostic and/or treatment center and clinic authorized
under this article, or within an ambulance with all doors closed oper-
ated by an ambulance service as defined by subdivision two of section
3001 of the Public Health Law (PHL) or voluntary ambulance service, as
defined by subdivision three of section 3001 of the PHL.
"Quality assurance" is defined as any evaluation of services provided in
or by a health care facility for the purposes of improvement in safety,
quality, or outcomes.
"Education or training of health care personnel" shall mean a program of
education or training of health care personnel or students being
educated or training to be health care personnel, and which the health
care facility has authorized.
"Broadcasting" of an image or speech is defined as the transmission by
one of several methods, including by broadcast, cable, closed circuit,
Internet, TV or other visual medium, social media, or other system by
which it can be viewed in violation of the privacy rights and expecta-
tions of a patient.
Provided however, that broadcasting shall not include incidental trans-
mission of the image or speech of an individual being treated, trans-
ported, or otherwise cared for or attended to by an ambulance service at
an ambulance response scene, public area, or during delivery or admis-
sion to a health care facility, that is captured by news media, bystan-
ders or other who do not have the written consent of such ambulance
service or voluntary ambulance service.
Nothing in this section shall apply where such recognizable image or
speech is broadcast or conveyed as part of the news gathering process
among professional journalists, newscasters, or other individuals or
entities defined in subdivision (a) of Section 79-h of the Civil Rights
Law, and their agents and legal advisors, but not broadcast to the
public.
2806-c (4) provides that no health care facility, as defined in para-
graph (a) of subdivision 3 of this section, shall incur any liability
under this section for the broadcasting by a third party of the recogni-
zable image or speech of a patient involved in a health care facility
when such image was obtained by a third party without the knowledge or
consent of the facility or its staff.
2806-c (5) states that nothing in this section shall diminish or impair
any right or remedy otherwise applicable to any patient.
Section 2. 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 an image or voice of a
patient undergoing treatment. This section also provides that the indi-
vidual or his or her estate representative may bring an action for
damages, and the cause of action shall survive the death of the individ-
ual and shall only apply to violations occurring on or after the effec-
tive date of this subdivision.
Section 3. Sets forth the effective date.
JUSTIFICATION:
Under the federal HIPAA law, a patient's private health information is
not to be shared, with the exception of those designated by the patient.
As such, hospitals and doctors have imposed many rules that are intended
to protect patient privacy. Despite this, a reality medical television
show on ABC, "NY Med", broadcast intimate details of a patient's health
at New York-Presbyterian Hospital/Weill Cornell Medical Center.
One patient, Mark Chanko, passed away during the course of the filming
after he was hit by a sanitation truck. Mr. Chanko's widow, Anita, was
already watching an episode of NY Med when a new segment of the show
started. As it progressed, she realized that the patient that was being
shown, despite the face being blurred out, was 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 hospi-
tal 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 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 legally authorized to make health care decisions for the patient,
will prevent patients and their families from being subject to addi-
tional suffering.
PRIOR LEGISLATIVE HISTORY:
2015-2016: A.5161-D/S.4622-C - Ordered to Third Reading.
2017-2018: A.1190-B/S.3696-B - Ordered to Third Reading.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
420--B
Cal. No. 215
2019-2020 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2019
___________
Introduced by M. of A. BRAUNSTEIN, MOSLEY, JAFFEE, M. G. MILLER, ARROYO,
GOTTFRIED, ZEBROWSKI, COOK, MONTESANO, FINCH, SEAWRIGHT, FRIEND,
GALEF, HEVESI, WEPRIN, ABINANTI, L. ROSENTHAL, GRIFFIN -- Multi-Spon-
sored by -- M. of A. McDONOUGH, NOLAN, PALMESANO, PEOPLES-STOKES,
SCHIMMINGER, SIMON -- read once and referred to the Committee on
Health -- reported and referred to the Committee on Codes -- reported
from committee, advanced to a third reading, amended and ordered
reprinted, retaining its place on the order of third reading -- again
amended on third reading, ordered reprinted, retaining its place on
the order of third reading
AN ACT to amend the public health law and the civil rights law, in
relation to prohibiting the making and/or broadcasting of visual
images of individuals undergoing medical treatment without prior writ-
ten consent
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The public health law is amended by adding a new section
2 2806-c to read as follows:
3 § 2806-c. Restrictions on broadcasting of patients. 1. Every patient
4 in a health care facility in this state shall have the right to have
5 privacy in treatment and in caring for personal needs, including the
6 broadcasting of the recognizable image or speech of such patient
7 involved in a health care procedure within the confines of such facili-
8 ty, with the exception of broadcasting such image or speech for the
9 purposes of advancing the health care treatment of the individual, a
10 quality assurance program, the education or training of health care
11 personnel, or necessary security purposes.
12 2. Such privacy in treatment shall include the obtaining by the health
13 care facility of express written consent on a separate document used
14 solely for such purpose from an individual receiving treatment in such
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02693-08-9
A. 420--B 2
1 facility prior to broadcasting the recognizable image or speech of such
2 patient involved in such treatment. In the case of broadcasting the
3 recognizable image or speech for education or training of health care
4 personnel, the patient shall have the right to know of and shall have
5 the right to refuse the broadcasting for that purpose. A person legally
6 authorized to make health care decisions for the patient or otherwise
7 authorized to consent may grant such consent or exercise such refusal if
8 the patient cannot reasonably do so due to such patient's incapacity.
9 3. For the purposes of this section:
10 (a) "health care facility" shall mean a residential health care facil-
11 ity, general hospital, free-standing ambulatory care facility, diagnos-
12 tic and/or treatment center and clinic authorized under this article, or
13 within an ambulance with all doors closed operated by an ambulance
14 service as defined by subdivision two of section three thousand one of
15 this chapter or by a voluntary ambulance service as defined by subdivi-
16 sion three of section three thousand one of this chapter;
17 (b) "quality assurance" shall mean any evaluation of services provided
18 in or by a health care facility for purposes of improvement in safety,
19 quality or outcomes;
20 (c) "education or training of health care personnel" shall mean a
21 program of education or training of health care personnel or students
22 being educated or trained to be health care personnel, that the health
23 care facility has authorized;
24 (d) "broadcasting" of an image or speech shall mean transmission by
25 broadcast, cable, closed circuit, internet or other television or visual
26 medium, social media, or other system by which it can be viewed in
27 violation of the privacy rights and expectations of a patient. Provided
28 however, that broadcasting shall not include incidental transmission of
29 the image or speech of an individual being treated, transported or
30 otherwise cared for or attended to by an ambulance service as defined in
31 subdivision two of section three thousand one of this chapter or by a
32 voluntary ambulance service as defined in subdivision three of section
33 three thousand one of this chapter, at an ambulance response scene,
34 public area or during delivery or admission to a health care facility,
35 that is captured by news media, bystanders or others who do not have the
36 written consent of such ambulance service or voluntary ambulance
37 service.
38 (e) Nothing in this section shall apply where such recognizable image
39 or speech is broadcast or conveyed as part of the news gathering process
40 among professional journalists, newscasters or other individuals or
41 entities, including those defined in subdivision (a) of section seven-
42 ty-nine-h of the civil rights law, and their agents and legal advisers,
43 but not broadcast to the public.
44 4. No health care facility, as defined in paragraph (a) of subdivision
45 three of this section, shall incur any liability under this section for
46 the broadcasting by a third party of the recognizable image or speech of
47 a patient involved in a health care procedure in the facility when such
48 image or speech was obtained by the third party without the knowledge or
49 consent of the facility or its staff.
50 5. Nothing in this section shall diminish or impair any right or
51 remedy otherwise applicable to any patient.
52 § 2. Section 50-c of the civil rights law, as amended by chapter 643
53 of the laws of 1999, is amended to read as follows:
54 § 50-c. Private right of action. 1. If the identity of the victim of
55 an offense defined in subdivision one of section fifty-b of this article
56 is disclosed in violation of such section, any person injured by such
A. 420--B 3
1 disclosure may bring an action to recover damages suffered by reason of
2 such wrongful disclosure. In any action brought under this section, the
3 court may award reasonable attorney's fees to a prevailing plaintiff.
4 2. If the privacy of an individual as defined in section twenty-eight
5 hundred six-c of the public health law regarding the right to have
6 privacy in treatment and in caring for personal needs, including the
7 broadcasting of the recognizable image or speech of a patient involved
8 in a health care procedure in such a facility has been violated, such
9 individual or his or her estate representative may bring an action to
10 recover damages suffered by reason of such violation. In any action
11 brought under this section, the court may award reasonable attorney's
12 fees to a prevailing plaintiff. The cause of action created herein shall
13 survive the death of such individual and shall only apply to violations
14 occurring on and after the effective date of this subdivision.
15 3. Nothing in this section shall diminish or impair any right or reme-
16 dy otherwise applicable to any patient.
17 § 3. This act shall take effect immediately.
