S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  420--B
                                                         Cal. No. 215
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (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:
   Section 1. The public health law is amended by adding  a  new  section
 2806-c to read as follows:
   §  2806-C.  RESTRICTIONS ON BROADCASTING OF PATIENTS. 1. EVERY PATIENT
 IN A HEALTH CARE FACILITY IN THIS STATE SHALL HAVE  THE  RIGHT  TO  HAVE
 PRIVACY  IN  TREATMENT  AND  IN CARING FOR PERSONAL NEEDS, INCLUDING THE
 BROADCASTING OF  THE  RECOGNIZABLE  IMAGE  OR  SPEECH  OF  SUCH  PATIENT
 INVOLVED  IN A HEALTH CARE PROCEDURE WITHIN THE CONFINES OF SUCH FACILI-
 TY, WITH THE EXCEPTION OF BROADCASTING SUCH  IMAGE  OR  SPEECH  FOR  THE
 PURPOSES  OF  ADVANCING  THE  HEALTH CARE TREATMENT OF THE INDIVIDUAL, A
 QUALITY ASSURANCE PROGRAM, THE EDUCATION  OR  TRAINING  OF  HEALTH  CARE
 PERSONNEL, OR NECESSARY SECURITY PURPOSES.
   2. SUCH PRIVACY IN TREATMENT SHALL INCLUDE THE OBTAINING BY THE HEALTH
 CARE  FACILITY  OF  EXPRESS  WRITTEN CONSENT ON A SEPARATE DOCUMENT USED
 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
 
 FACILITY  PRIOR TO BROADCASTING THE RECOGNIZABLE IMAGE OR SPEECH OF SUCH
 PATIENT INVOLVED IN SUCH TREATMENT. IN  THE  CASE  OF  BROADCASTING  THE
 RECOGNIZABLE  IMAGE  OR  SPEECH FOR EDUCATION OR TRAINING OF HEALTH CARE
 PERSONNEL,  THE  PATIENT  SHALL HAVE THE RIGHT TO KNOW OF AND SHALL HAVE
 THE RIGHT TO REFUSE THE BROADCASTING FOR THAT PURPOSE. A PERSON  LEGALLY
 AUTHORIZED  TO  MAKE  HEALTH CARE DECISIONS FOR THE PATIENT OR OTHERWISE
 AUTHORIZED TO CONSENT MAY GRANT SUCH CONSENT OR EXERCISE SUCH REFUSAL IF
 THE PATIENT CANNOT REASONABLY DO SO DUE TO SUCH PATIENT'S INCAPACITY.
   3. FOR THE PURPOSES OF THIS SECTION:
   (A) "HEALTH CARE FACILITY" SHALL MEAN A RESIDENTIAL HEALTH CARE FACIL-
 ITY, GENERAL HOSPITAL, FREE-STANDING AMBULATORY CARE FACILITY,  DIAGNOS-
 TIC AND/OR TREATMENT CENTER AND CLINIC AUTHORIZED UNDER THIS ARTICLE, OR
 WITHIN  AN  AMBULANCE  WITH  ALL  DOORS  CLOSED OPERATED BY AN AMBULANCE
 SERVICE AS DEFINED BY SUBDIVISION TWO OF SECTION THREE THOUSAND  ONE  OF
 THIS  CHAPTER OR BY A VOLUNTARY AMBULANCE SERVICE AS DEFINED BY SUBDIVI-
 SION THREE OF SECTION THREE THOUSAND ONE OF THIS CHAPTER;
   (B) "QUALITY ASSURANCE" SHALL MEAN ANY EVALUATION OF SERVICES PROVIDED
 IN OR BY A HEALTH CARE FACILITY FOR PURPOSES OF IMPROVEMENT  IN  SAFETY,
 QUALITY OR OUTCOMES;
   (C)  "EDUCATION  OR  TRAINING  OF  HEALTH CARE PERSONNEL" SHALL MEAN A
 PROGRAM OF EDUCATION OR TRAINING OF HEALTH CARE  PERSONNEL  OR  STUDENTS
 BEING  EDUCATED  OR TRAINED TO BE HEALTH CARE PERSONNEL, THAT THE HEALTH
 CARE FACILITY HAS AUTHORIZED;
   (D) "BROADCASTING" OF AN IMAGE OR SPEECH SHALL  MEAN  TRANSMISSION  BY
 BROADCAST, CABLE, CLOSED CIRCUIT, INTERNET OR OTHER TELEVISION OR VISUAL
 MEDIUM,  SOCIAL  MEDIA,  OR  OTHER  SYSTEM  BY WHICH IT CAN BE VIEWED IN
 VIOLATION OF THE PRIVACY RIGHTS AND EXPECTATIONS OF A PATIENT.  PROVIDED
 HOWEVER, THAT BROADCASTING SHALL NOT INCLUDE INCIDENTAL TRANSMISSION  OF
 THE  IMAGE  OR  SPEECH  OF  AN  INDIVIDUAL BEING TREATED, TRANSPORTED OR
 OTHERWISE CARED FOR OR ATTENDED TO BY AN AMBULANCE SERVICE AS DEFINED IN
 SUBDIVISION TWO OF SECTION THREE THOUSAND ONE OF THIS CHAPTER  OR  BY  A
 VOLUNTARY  AMBULANCE  SERVICE AS DEFINED IN SUBDIVISION THREE OF SECTION
 THREE THOUSAND ONE OF THIS CHAPTER,  AT  AN  AMBULANCE  RESPONSE  SCENE,
 PUBLIC  AREA  OR DURING DELIVERY OR ADMISSION TO A HEALTH CARE FACILITY,
 THAT IS CAPTURED BY NEWS MEDIA, BYSTANDERS OR OTHERS WHO DO NOT HAVE THE
 WRITTEN  CONSENT  OF  SUCH  AMBULANCE  SERVICE  OR  VOLUNTARY  AMBULANCE
 SERVICE.
   (E)  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,  INCLUDING  THOSE DEFINED IN SUBDIVISION (A) OF SECTION SEVEN-
 TY-NINE-H OF THE CIVIL RIGHTS LAW, AND THEIR AGENTS AND LEGAL  ADVISERS,
 BUT NOT BROADCAST TO THE PUBLIC.
   4. NO HEALTH CARE FACILITY, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION
 THREE  OF THIS SECTION, SHALL INCUR ANY LIABILITY UNDER THIS SECTION FOR
 THE BROADCASTING BY A THIRD PARTY OF THE RECOGNIZABLE IMAGE OR SPEECH OF
 A PATIENT INVOLVED IN A HEALTH CARE PROCEDURE IN THE FACILITY WHEN  SUCH
 IMAGE OR SPEECH WAS OBTAINED BY THE THIRD PARTY WITHOUT THE KNOWLEDGE OR
 CONSENT OF THE FACILITY OR ITS STAFF.
   5.    NOTHING  IN  THIS  SECTION SHALL DIMINISH OR IMPAIR ANY RIGHT OR
 REMEDY OTHERWISE APPLICABLE TO ANY PATIENT.
   § 2. Section 50-c of the civil rights law, as amended by  chapter  643
 of the laws of 1999, is amended to read as follows:
   §  50-c. Private right of action.  1. If the identity of the victim of
 an offense defined in subdivision one of section fifty-b of this article
 is disclosed in violation of such section, any person  injured  by  such
 A. 420--B                           3
 disclosure  may bring an action to recover damages suffered by reason of
 such wrongful disclosure. In any action brought under this section,  the
 court may award reasonable attorney's fees to a prevailing plaintiff.
   2.  IF THE PRIVACY OF AN INDIVIDUAL AS DEFINED IN SECTION TWENTY-EIGHT
 HUNDRED SIX-C OF THE PUBLIC HEALTH  LAW  REGARDING  THE  RIGHT  TO  HAVE
 PRIVACY  IN  TREATMENT  AND  IN CARING FOR PERSONAL NEEDS, INCLUDING THE
 BROADCASTING OF THE RECOGNIZABLE IMAGE OR SPEECH OF A  PATIENT  INVOLVED
 IN  A  HEALTH  CARE PROCEDURE IN SUCH A FACILITY HAS BEEN VIOLATED, SUCH
 INDIVIDUAL OR HIS OR HER ESTATE REPRESENTATIVE MAY BRING  AN  ACTION  TO
 RECOVER  DAMAGES  SUFFERED  BY  REASON  OF SUCH VIOLATION. IN ANY ACTION
 BROUGHT UNDER THIS SECTION, THE COURT MAY  AWARD  REASONABLE  ATTORNEY'S
 FEES TO A PREVAILING PLAINTIFF. THE CAUSE OF ACTION CREATED HEREIN SHALL
 SURVIVE  THE DEATH OF SUCH INDIVIDUAL AND SHALL ONLY APPLY TO VIOLATIONS
 OCCURRING ON AND AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION.
   3. NOTHING IN THIS SECTION SHALL DIMINISH OR IMPAIR ANY RIGHT OR REME-
 DY OTHERWISE APPLICABLE TO ANY PATIENT.
   § 3. This act shall take effect immediately.