New York - Presbyterian Hospital has to pay a $2.2 million fine for allowing ABC's Dr. Oz-centric medical reality show to film patients without their consent, causing at least one family to inadvertently suffer through watching a loved one die onscreen. The penalty is part of a settlement with the U.S. Department of Health and Human Services, which said today that NYP let the crew of NY Med continue filming patients even after a medical professional asked them to stop.
The crux of this case is the story of the Chanko family, who lost Mark Chanko in 2011 after the driver of a garbage truck backed over him while he was crossing the street near his home. ProPublica and the New York Times wrote a lengthy piece on the Chankos last year, detailing how Mark's wife, Anita, turned on the TV in the middle of a sleepless night a year after her husband's death and was confronted with blurred but unmistakable footage of her husband moaning in pain at Weill Cornell Medical Center.
"I saw my husband die before my eyes," she recalled.
Unbeknownst to the Chankos, a film crew was also filming the closed door to the room in which doctor Sebastian Schubl informed them that Mark had died. Schubl's audio was also being recorded. The state Department of Health later determined that Chanko had not consented to being filmed when he was admitted to the hospital.
The Chankos sued New York - Presbyterian, ABC, and Schubl, but the case was initially dismissed. However, the New York Court of Appeals recently revived the suit, and will allow it to proceed against the hospital and Schubl—but not ABC, as the judges determined that the network's conduct was "not so extreme or outrageous" to warrant damages.
NY Med aired two seasons, in 2012 and 2014, and it's not clear if more seasons are planned. Episodes in its first season featured a "brassy, Bronx-born ER nurse whose knock 'em dead good looks leave some admiring patients stammering" and an "'old school' surgeon who believes that today's residents are coddled," among others. In episode three, "Dr. Oz finds himself in both the role of patient and doctor after he decides to follow his own advice and submit to a colonoscopy that he has been putting off."
After the Chankos first complained, ABC removed the footage of Mark Chanko from its website and DVDs.
As part of the settlement announced today, NYP has agreed to be monitored by Health and Human Services for two years so that regulators can make sure the hospital is complying with HIPAA regulations, which protect patients' medical records and other personal health information. Investigators found that NYP was allowing the crew of NY Med "virtually unfettered access to its health care facility, effectively creating an environment where [protected health information] could not be protected from impermissible disclosure to the ABC film crew and staff."
According to Health and Human Services, "NYP's actions blatantly violate the HIPAA Rules." A spokesperson for NYP said that the hospital maintains it did not violate HIPAA.
Kenneth Chanko, Mark's son who first filed the complaint with Health and Human Services, told ProPublica that he was "almost at a loss of words because we're just so grateful that action was taken and this will have a national impact on hospitals."