Senate Bill S1693B

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1693
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 15, 2019
                                ___________
 
 Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 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 SHALL HAVE THE RIGHT TO HAVE PRIVACY IN TREAT-
 MENT AND IN CARING FOR PERSONAL NEEDS, INCLUDING THE BROADCASTING OF THE
 RECOGNIZABLE  IMAGE  OR SPEECH OF SUCH PATIENT INVOLVED IN A HEALTH CARE
 PROCEDURE IN SUCH FACILITY, 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  TRAIN-
 ING 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
 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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02693-01-9
              

 S. 1693                             2
 
   (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
 AMBULANCE OPERATED BY AN AMBULANCE SERVICE AS DEFINED BY SUBDIVISION TWO
 OF  SECTION  THREE  THOUSAND ONE OF THIS CHAPTER OR BY A VOLUNTARY AMBU-
 LANCE SERVICE AS DEFINED BY SUBDIVISION 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.
   4. NOTHING IN THIS SECTION SHALL DIMINISH OR IMPAIR ANY RIGHT OR REME-
 DY 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
 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] ATTORNEYS' 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 ATTORNEYS'
 FEES TO A PREVAILING PLAINTIFF. THE CAUSE OF ACTION CREATED HEREIN SHALL
 SURVIVE THE DEATH OF SUCH INDIVIDUAL.
   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.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1693--A
     Cal. No. 455
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 15, 2019
                                ___________
 
 Introduced  by Sens. KRUEGER, ADDABBO, SERRANO -- read twice and ordered
   printed, and when printed to be committed to the Committee  on  Health
   -- reported favorably from said committee, ordered to first and second
   report,  ordered  to  a  third reading, amended and ordered reprinted,
   retaining its place in 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 SHALL HAVE THE RIGHT TO HAVE PRIVACY IN TREAT-
 MENT 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 FACILITY, 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 SECURI-
 TY 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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02693-07-9

 S. 1693--A                          2
 
 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 THE CONFINES OF AN AMBULANCE 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 SUBDIVISION 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  DEFINED  IN  SUBDIVISION  (A) OF SECTION SEVENTY-NINE-H OF THE
 CIVIL RIGHTS LAW, 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
 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

 S. 1693--A                          3
 
 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.