Jan 3 2015

How Is Profiting From Non-Consensual TV Coverage of a Patient’s Death Not “Outrageous” Enough?

Andrew Barovick, http://www.thenewyorkmedicalmalpracticelawblog.com, discusses "NY Med" on ABC. A recent New York Times article entitled “Dying in the E.R., and on TV” raises troubling issues concerning patient privacy and the emotional distress suffered by a family already hurt by the death of its patriarch.

In April, 2011, ABC-TV’s hospital-based reality show, “NY Med,” was filming inside NY Presbyterian/Weill Cornell Medical Center the night Mark Chanko was brought in. He had been badly hurt by a garbage truck outside of his Manhattan apartment building, and died later that night when his heart stopped. He was 83.

His widow, Anita Chanko, and their children grieved.  But the pain came flooding back over one year later, when Ms. Chanko turned on her television, and saw her husband’s death on the screen–part of one of her favorite shows, “NY Med.” Though the image was blurred to prevent most from being able to identify him, Ms. Chanko recognized her late husband.  She is quoted in reporter Charles Ornstein’s article saying: “You could tell it was him. You could hear his speech pattern. I hear my husband say, ‘Does my wife know I’m here?’ ” She then hears the medical staff discussing his deteriorating condition, the use of shock “paddles,” and whether they can pronounce him dead. A few weeks after the airing of the episode, Ms. Chanko heard from a family acquaintance, who also recognized him on TV.

The show is not strictly geared to the advancement of science and medicine, to say the least. As the article notes, the promotional blurb for the episode still says, “Sebastian Shubl, a Dr. McDreamy-like young trauma surgeon, tries to save the day when a critically injured pedestrian struck by a vehicle is brought to the E.R.” And hospitals love the free publicity. “You can’t buy this kind of publicity, an eight-part series on a major broadcast network,” gushed a NY Presbyterian public affairs executive.

Neither Mark Chanko, nor anyone in his family consented to the filming of his care at the hospital, and they were outraged. They filed complaints with the appropriate agencies, the hospital and ABC and they brought a lawsuit grounded in claims of invasion of privacy and intentional infliction of emotional distress.  Ultimately, the Appellate Division, First Dept., dismissed all of the family’s claims.  Despite at least anecdotal evidence that Mark Chanko’s privacy had not been protected properly, the Court absolved the defendants of all liability, finding that no identifying information had been released.

More troubling was its finding with regard to emotional distress. According to a leading case on the subject, the tort of intentional infliction of emotional distress has four elements:

(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element–outrageous conduct–serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine (see, Prosser, Insult and Outrage, 44 Cal L Rev, at 44-45; compare, Mitchell v Rochester Ry Co., 151 NY, at 110). In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law (see, Restatement [Second] of Torts § 46, comment h; Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct [“Social Decency”], 82 Colum L Rev 42, 42-43 [1982]). [122]

Howell v. New York Post Co., 81 N.Y 2d 115, 121 (1993).

The Appellate Division found, in essence,  that though the family may have been distressed, and the defendants disregarded a substantial probability of causing severe emotional distress, there was no extreme and outrageous conduct, which, according to the case law, is virtually impossible to ever show.  Former U.S. Supreme Court Justice Potter Steward said, “I know it when I see it.” But you do not have to be a legal legend to see conduct that is extreme and outrageous here.  Anyone can, and should, see it.  Because if this type of tawdry, craven and profit-driven treatment of a bereaved family isn’t outrageous, I’d love to know what is.

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