BILL NUMBER: S134

SPONSOR: KRUEGER
 
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
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 exception 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 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
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 transmission of
the image or speech of an individual being treated, transported, or
otherwise cared for or attended to by an ambulance service at an ambu-
lance response scene, public area, or during delivery or admission to a
health care facility, that is captured by news media, bystanders 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 produced by a news department or news division and is broad-
cast 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 speck that has been obtained by professional journal-
ists, newscasters or other individuals or entities recognized by section
79(H) of the New York Civil Rights Law.

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:

2021-2022: S.484A - Passed Senate

2019-2020: S.1693B - Passed Senate.

2017-2018: A.1190-B/S.3696-B - Ordered to Third Reading.

2015-2016: A.5161-D/S.4622-C - Ordered to Third Reading.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.