Patrick McCormick Appeals article

If it isn’t extreme and outrageous to film a trauma patient’s last minutes alive, the pronouncement of his death, and the family notification, then broadcast those intimate moments on national television in the name of entertainment, all without consent – then what is?

A recent decision from the New York State Court of Appeals leaves the legal community—and the family of that trauma patient—asking that very question.

In April 2011, Mark Chanko, 83, was struck by a sanitation truck as he crossed York Avenue to buy milk at a local deli.  He was still conscious and able to speak when he arrived at the emergency room of New York-Presbyterian Hospital/Weill Cornell Medical Center, but died within an hour.  Chief Surgery Resident Sebastian Schubl pronounced Mr. Chanko dead and notified his devastated family.

Unbeknownst to the Chankos, ABC News employees filming a medical documentary series, “NY Med,” had recorded Mr. Chanko’s treatment in the ER—including deeply personal moments such as moans of pain, asking if his wife knew what happened, and his actual death—as well as the family receiving the shattering news.

One evening over a year later, Mr. Chanko’s wife, Anita, turned on an episode of “NY Med.”   She recognized Dr. Schubl, then suddenly heard her husband’s voice.  The image was blurred and no name was used, but there was no doubt that she was witnessing her husband’s final moments.  Eventually she heard someone say, “Are you ready to pronounce him?”

Shocked by the fact that the worst night of their lives was televised to millions of people across the country without their knowledge, Mr. Chanko’s family filed complaints with the New York State Department of Health, the hospital, a hospital accrediting group, and the United States Department of Health and Human Services.  New York State eventually cited the hospital for violating Mr. Chanko’s privacy, and the family decided to commence a lawsuit against ABC, the hospital, and Dr. Schubl, among others.

The Supreme Court ultimately dismissed all but the causes of action for breach of physician-patient confidentiality against the hospital and Dr. Schubl and intentional infliction of emotional distress against those defendants and ABC.  The defendants appealed, and the Appellate Division dismissed the complaint in its entirety.  Chanko v. American Broadcasting Cos. Inc., 122 A.D.3d 487 (1st Dep’t 2014).  The Chankos were granted leave to appeal.

The Court of Appeals reinstated the breach of physician-patient privilege claim, determining that the plaintiffs had sufficiently alleged the elements for that cause of action, namely: “(1) the existence of a physician-patient relationship; (2) the physician’s acquisition of information relating to the patient’s treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient’s medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages.”  Chanko v. American Broadcasting Companies Inc., __ N.E.3d__ (2016).  The Court rejected the defendants’ argument that the disclosed medical information must be of an embarrassing nature to support such a cause of action.  The Court also rejected the argument that the blurring of Mr. Chanko’s face on screen and the fact that his name was not used warranted dismissal of the breach of confidentiality claim.  Not only had someone outside the family recognized Mr. Chanko on the episode, but sensitive medical information and the patient’s identity had been revealed to the ABC employees themselves throughout the filming and editing process.  The Court surmised that additional information would come out in discovery to either support or negate the plaintiffs’ claim, but that they had met their burden to defeat the motion to dismiss.

Things got murkier, however, when the Court turned to the intentional infliction of emotional distress claim.  The Court revisited the four elements of the cause of action: “(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.”  Chanko (2016), quoting Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993).  “‘Liability has been found,’” the Court warned, “‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’”  Id., quoting Howell, 81 N.Y.2d at 122.

The Court ultimately determined that while the plaintiffs’ allegations facially addressed all of the required elements of the claim, the allegations “do not rise to the level necessary to satisfy the outrageousness element.”  Id.  While the Court found the defendants’ conduct “offensive,” it was not “so atrocious and utterly intolerable” to support the claim.  Id.  The decision includes a highlight reel of conduct that the Court of Appeals and Appellate Divisions have deemed similarly not outrageous enough, such as a newspaper’s publication of a photo of a patient in a psychiatric facility (thus publicizing that person’s status as a patient there) and a TV station showing recognizable images of rape victims after repeatedly promising that they would not be identifiable.  Id.

This decision highlights what some may view as the dangers of an appellate court—in this case, New York’s highest—evaluating the facts on the merits, rather than considering only the sufficiency of a pleading (and leaving it to a trial judge or jury to sift through the facts).  The case also serves as a warning: if you’re ever headed to the emergency room, make sure to wear something you wouldn’t mind being photographed in.