Relates to requiring a medical facility or related services 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: A5161D
SPONSOR: Braunstein
 
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:
To protect patients undergoing treatment from having images or speech
broadcast without consent.
 
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
shall have the right to privacy in treatment, which includes the broad-
casting of the patient's image or speech. This section also offers an
exception when such broadcast is for the specific purpose of advancing
the health care treatment of the individual, a quality assurance
program, the education or training of health care personnel, or neces-
sary security 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
consent to broadcasting, from the individual receiving treatment,
obtained before broadcasting the image or voice of the patient in treat-
ment. 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 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 ambulance served by an ambulance service as
defined by subdivision two of section 3001 of the Public Health Law 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" 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 expectations of a patient.
2806-c (4) 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.
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 information designated by the
patient. Hospitals and doctors are governed by many such rules that are
intended to protect patient privacy. Despite this, a reality-based
medical television show on ABC, "NY Med," broadcast intimate details of
a patient's health care at New York-Presbyterian Hospital/Weill Cornell
Medical Center.
One patient, Mark Chanko, who was being treated after having been struck
by a sanitation truck, passed away during the course of such filming.
Mr. Chanko's widow, Anita, was watching an episode of "NY Med" when a
new segment of the show started. As it progressed, she realized that the
patient being shown, despite the face being blurred out, was her husband
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 experi-
ence of her life. The hospital and "NY Med" did not seek permission from
either Mark or his family before the show was broadcast.
Patients have an expectation and a right to privacy when being treated
in a medical facility. To film and broadcast this treatment without
permission is an outrageous violation of their right to privacy as
patients.
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
their power of attorney, health care proxy, or next of kin will prevent
patients and their families from being subject to additional suffering.
 
PRIOR LEGISLATIVE HISTORY:
New bill.
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
5161--D
2015-2016 Regular Sessions
IN ASSEMBLY
February 12, 2015
___________
Introduced by M. of A. BRAUNSTEIN, SKOUFIS, MOSLEY, JAFFEE, MILLER,
BRINDISI, ARROYO, HOOPER, GOTTFRIED, ZEBROWSKI, COOK, MONTESANO,
FINCH, SALADINO, ROBINSON, SEAWRIGHT, FRIEND, RUSSELL, GALEF,
KAVANAGH, HEVESI -- Multi-Sponsored by -- M. of A. CERETTO, HIKIND,
McDONOUGH, PALMESANO, PEOPLES-STOKES, SCHIMMINGER, SIMON, TITONE --
read once and referred to the Committee on Health -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
-- reported and referred to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Health in accord-
ance with Assembly Rule 3, sec. 2 -- reported and referred to the
Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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 shall have the right to have privacy in treat-
5 ment and in caring for personal needs, including the broadcasting of the
6 recognizable image or speech of such patient involved in a health care
7 procedure in such facility, with the exception of broadcasting such
8 image or speech for the purposes of advancing the health care treatment
9 of the individual, a quality assurance program, the education or train-
10 ing of health care personnel, or necessary security purposes.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08232-21-6
A. 5161--D 2
1 2. Such privacy in treatment shall include the obtaining by the health
2 care facility of express written consent on a separate document used
3 solely for such purpose from an individual receiving treatment in such
4 facility prior to broadcasting the recognizable image or speech of such
5 patient involved in such treatment. In the case of broadcasting the
6 recognizable image or speech for education or training of health care
7 personnel, the patient shall have the right to know of and shall have
8 the right to refuse the broadcasting for that purpose. A person legally
9 authorized to make health care decisions for the patient or otherwise
10 authorized to consent may grant such consent or exercise such refusal if
11 the patient cannot reasonably do so due to such patient's incapacity.
12 3. For the purposes of this section:
13 (a) "health care facility" shall mean a residential health care facil-
14 ity, general hospital, free-standing ambulatory care facility, diagnos-
15 tic and/or treatment center and clinic authorized under this article, or
16 ambulance operated by an ambulance service as defined by subdivision two
17 of section three thousand one of this chapter or by a voluntary ambu-
18 lance service as defined by subdivision three of section three thousand
19 one of this chapter;
20 (b) "quality assurance" shall mean any evaluation of services provided
21 in or by a health care facility for purposes of improvement in safety,
22 quality or outcomes;
23 (c) "education or training of health care personnel" shall mean a
24 program of education or training of health care personnel or students
25 being educated or trained to be health care personnel, that the health
26 care facility has authorized;
27 (d) "broadcasting" of an image or speech shall mean transmission by
28 broadcast, cable, closed circuit, internet or other television or visual
29 medium, social media, or other system by which it can be viewed in
30 violation of the privacy rights and expectations of a patient.
31 4. Nothing in this section shall diminish or impair any right or reme-
32 dy otherwise applicable to any patient.
33 § 2. Section 50-c of the civil rights law, as amended by chapter 643
34 of the laws of 1999, is amended to read as follows:
35 § 50-c. Private right of action. 1. If the identity of the victim of
36 an offense defined in subdivision one of section fifty-b of this article
37 is disclosed in violation of such section, any person injured by such
38 disclosure may bring an action to recover damages suffered by reason of
39 such wrongful disclosure. In any action brought under this section, the
40 court may award reasonable [attorney's] attorneys' fees to a prevailing
41 plaintiff.
42 2. If the privacy of an individual as defined in section twenty-eight
43 hundred six-c of the public health law regarding the right to have
44 privacy in treatment and in caring for personal needs, including the
45 broadcasting of the recognizable image or speech of a patient involved
46 in a health care procedure in such a facility has been violated, such
47 individual or his or her estate representative may bring an action to
48 recover damages suffered by reason of such violation. In any action
49 brought under this section, the court may award reasonable attorneys'
50 fees to a prevailing plaintiff. The cause of action created herein shall
51 survive the death of such individual.
52 § 3. This act shall take effect immediately.