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: A1190B
SPONSOR: Braunstein (MS) 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 a patient's image or speech. 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 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
the 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 the making or 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 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 a visual image" is defined as the transmission by one of
several methods, including by broadcast, cable, closed circuit, Inter-
net, 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.
Section 4: Nothing in this section shall diminish or impair any right or
remedy otherwise applicable to any patient.
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 NewYork-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
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:
2015-2016: A.5161-D/S.4622-C - Ordered to Third Reading Rules Cal. 436.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
1190--B
Cal. No. 80
2017-2018 Regular Sessions
IN ASSEMBLY
January 11, 2017
___________
Introduced by M. of A. BRAUNSTEIN, SKOUFIS, MOSLEY, JAFFEE, M. G. MILL-
ER, BRINDISI, ARROYO, HOOPER, GOTTFRIED, ZEBROWSKI, COOK, MONTESANO,
FINCH, SEAWRIGHT, FRIEND, JENNE, GALEF, HEVESI, WEPRIN, CASTORINA --
Multi-Sponsored by -- M. of A. HIKIND, McDONOUGH, PALMESANO, PEOPLES-
STOKES, SCHIMMINGER, SIMON, TITONE -- read once and referred to the
Committee on Health -- reported and referred to the Committee on Codes
-- reported and referred to the Committee on Rules -- amended on the
special order of third reading, ordered reprinted as amended, retain-
ing its place on the special order of third reading -- ordered to a
third reading, amended and 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:
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.
11 2. Such privacy in treatment shall include the obtaining by the health
12 care facility of express written consent on a separate document used
13 solely for such purpose from an individual receiving treatment in such
14 facility prior to broadcasting the recognizable image or speech of such
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01750-09-8
A. 1190--B 2
1 patient involved in such treatment. In the case of broadcasting the
2 recognizable image or speech for education or training of health care
3 personnel, the patient shall have the right to know of and shall have
4 the right to refuse the broadcasting for that purpose. A person legally
5 authorized to make health care decisions for the patient or otherwise
6 authorized to consent may grant such consent or exercise such refusal if
7 the patient cannot reasonably do so due to such patient's incapacity.
8 3. For the purposes of this section:
9 (a) "health care facility" shall mean a residential health care facil-
10 ity, general hospital, free-standing ambulatory care facility, diagnos-
11 tic and/or treatment center and clinic authorized under this article, or
12 ambulance operated by an ambulance service as defined by subdivision two
13 of section three thousand one of this chapter or by a voluntary ambu-
14 lance service as defined by subdivision three of section three thousand
15 one of this chapter;
16 (b) "quality assurance" shall mean any evaluation of services provided
17 in or by a health care facility for purposes of improvement in safety,
18 quality or outcomes;
19 (c) "education or training of health care personnel" shall mean a
20 program of education or training of health care personnel or students
21 being educated or trained to be health care personnel, that the health
22 care facility has authorized;
23 (d) "broadcasting" of an image or speech shall mean transmission by
24 broadcast, cable, closed circuit, internet or other television or visual
25 medium, social media, or other system by which it can be viewed in
26 violation of the privacy rights and expectations of a patient. Provided
27 however, that broadcasting shall not include incidental transmission of
28 the image or speech of an individual being treated, transported or
29 otherwise cared for or attended to by an ambulance service as defined in
30 subdivision two of section three thousand one of this chapter or by a
31 voluntary ambulance service as defined in subdivision three of section
32 three thousand one of this chapter, at an ambulance response scene,
33 public area or during delivery or admission to a health care facility,
34 that is captured by news media, bystanders or others who do not have the
35 written consent of such ambulance service or voluntary ambulance
36 service.
37 4. Nothing in this section shall diminish or impair any right or reme-
38 dy otherwise applicable to any patient.
39 § 2. Section 50-c of the civil rights law, as amended by chapter 643
40 of the laws of 1999, is amended to read as follows:
41 § 50-c. Private right of action. 1. If the identity of the victim of
42 an offense defined in subdivision one of section fifty-b of this article
43 is disclosed in violation of such section, any person injured by such
44 disclosure may bring an action to recover damages suffered by reason of
45 such wrongful disclosure. In any action brought under this section, the
46 court may award reasonable [attorney's] attorneys' fees to a prevailing
47 plaintiff.
48 2. If the privacy of an individual as defined in section twenty-eight
49 hundred six-c of the public health law regarding the right to have
50 privacy in treatment and in caring for personal needs, including the
51 broadcasting of the recognizable image or speech of a patient involved
52 in a health care procedure in such a facility has been violated, such
53 individual or his or her estate representative may bring an action to
54 recover damages suffered by reason of such violation. In any action
55 brought under this section, the court may award reasonable attorneys'
A. 1190--B 3
1 fees to a prevailing plaintiff. The cause of action created herein shall
2 survive the death of such individual.
3 3. Nothing in this section shall diminish or impair any right or reme-
4 dy otherwise applicable to any patient.
5 § 3. This act shall take effect immediately.
