The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    134
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced by Sens. KRUEGER, ADDABBO, HOYLMAN, LIU, RIVERA -- 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 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
 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.
                                                            LBD01049-01-3

 S. 134                              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 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 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  AMBU-
 LANCE  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 THE  RECOGNIZABLE  IMAGE
 OR  SPEECH  IS  PRODUCED  BY  A  NEWS DEPARTMENT OR NEWS DIVISION AND IS
 BROADCAST OR CONVEYED AS PART OF A NEWSCAST, INVESTIGATIVE NEWS  PROGRAM
 OR NEWS REPORT IN ANY ELECTRONIC OR PRINTED FORM. THIS SECTION SHALL NOT
 APPLY  TO  IMAGES OR SPEECH THAT HAS BEEN OBTAINED BY PROFESSIONAL JOUR-
 NALISTS, NEWSCASTERS OR OTHER  INDIVIDUALS  OR  ENTITIES  RECOGNIZED  BY
 SECTION SEVENTY-NINE-H OF THE CIVIL RIGHTS LAW.
   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 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 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
 S. 134                              3
 
 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.