Filming patients without prior authorization being obtained in writing is a violation of the Health Insurance Portability and Accountability Act. The penalty for such a violation can be considerable, as New York Presbyterian Hospital (NYP) has discovered.
In 2011, NYP allowed an ABC film crew into the hospital to record footage for the ‘NY Med’ TV show. The crew shot footage of the hospital and patients, which included a man who had been hit by a garbage truck and was receiving treatment in the emergency room. The patient died while receiving treatment for injuries sustained in the accident. The patient’s death was captured on film and the footage was included in the NY Med broadcast.
The patient, 83-year-old Mark Chanko, had his identity masked by blurring his face, yet this was not sufficient to prevent his wife from being able to identify him when she saw the TV show. Mrs. Chanko said, “I saw my husband die before my eyes.”
In January 2013, the Department of Health and Human Services’ Office for Civil Rights (OCR) received a complaint from Mr. Chanko’s family claiming the hospital had allowed a film crew to shoot footage of Mr. Chanko, yet authorization had not been obtained from the patient or his family. OCR notified NYP of a HIPAA investigation in May 2013. The investigation confirmed that authorization had not been obtained, but also that the film crew had been allowed access to the hospital which potentially compromised the PHI of other patients.
Filming Patients Without Prior Authorization Violates HIPAA Rules
According to a statement released by OCR, “OCR found that NYP allowed the ABC crew to film someone who was dying and another person in significant distress, even after a medical professional urged the crew to stop.”
OCR also determined that NYP “allowed ABC film crews virtually unfettered access to its health care facility.” By doing so NYP was unable to safeguard the protected health information of patients and prevent that information from being disclosed to members of the ABC crew.
OCR also said that allowing the film crew into the hospital and filming patients without prior authorization was a blatant violation of HIPAA Rules.
NYP has settled the case filed against it for potential HIPAA violations without admission of liability. NYP has agreed to adopt a corrective action plan and will be monitored by OCR for a period of 2 years. NYP has also agreed to pay a settlement of $2.2 million.
Since filming patients without prior authorization is a violation of HIPAA, this means that hospital reality TV shows in the United States are likely to stop, at least in emergency rooms where it may not be possible to obtain prior authorization from patients. The blurring or use of pixelation is insufficient to prevent a violation of HIPAA Rules.