Anita Chanko is not going down without a fight in the courtroom. Chanko and her family have filed charges against ABC after the broadcasting company aired footage of Chanko's husband dying without him or his family being aware that he was being filmed.
The footage was aired over celebrity doctor Mehmet Oz's reality show NY Med during the wee hours one night in August 2012 when Chanko was unable to go to sleep.
Sixteen months had already passed since her husband, Mark Chanko, died after being hit by a sanitation truck in Manhattan's Upper East Side. Her grief was revived with a newfound horror when she realized that the man who was filmed being treated at New York-Presbyterian Hospital by trauma surgeon Dr. Sebastian Schubl was her husband.
"Even with the blurred picture, you could tell it was him," Chanko told ProPublica's Charles Ornstein. "You could hear his speech pattern. I hear my husband say, 'Does my wife know I'm here?'"
Those were her husband's last words, signifying what should have been a solemn moment reserved only for the dying person's family and anyone else they granted permission to hear. Chanko, however, did not give NY Med or the hospital permission to film or broadcast her husband's last moments.
In fact, she, her family and presumably her husband were not aware that the people donning hospital gowns inside the emergency room were actually production crew for NY Med.
Chanko went on to tell Ornstein that she heard the staff ask one another if they were ready to pronounce her husband dead. They did, and the show switches to a clip of Dr. Schubl who tells the family, not seen onscreen, the bad news.
"I did everything I possibly could," Dr. Schubl said. "Unfortunately, he did not survive. I am sorry."
Afterwards, he turns to the camera shaking his head and saying, "Rough day, rough day."
"It was the list clip before the commercial," Chanko said. "Or as I put it, 'Watch this man die, now we're going to sell you some detergent.'"
In a letter sent to the Presbyterian Hospital's privacy officer, Kenneth Chanko, son of Anita Chanko, said watching the footage caused him "great emotional distress and psychological harm" after having to unnecessarily relive his father's last moments with the knowledge that the public could "watch my father's passing for the purpose of what can only be described as drive-by voyeuristic 'entertainment.'"
Following the younger Chanko's complaint, which was also sent to NY Med broadcaster ABC, the New York State Department of Health and the Department of Health and Human Services civil rights office, ABC removed the particular segment from future broadcasts, the DVD version and its website, although the blurb remains, citing a "Dr. McDreamy-like" surgeon trying to save the day when a "critically injured pedestrian struck by a vehicle is brought to the ER."
The hospital responded, assuring that his father's and the family's privacy was protected because their "images, likeness and other potentially identifying information were completely obscured in the episode."
However, the Chankos are not convinced. One woman who used to work for the family as a pet-sitter called Mrs. Chanko to ask if it indeed was her husband shown on NY Med.
"She said to me, 'Do you watch 'NY Med'?'" the woman recalled. "'That was Mark, wasn't it?' She recognized him."
The family is not pleased with ABC's response, moving instead to file a $5 million lawsuit against the broadcaster and Dr. Schubl for violating the patient's and his family's privacy, a case that was dismissed by an appellate court on the basis of arguments from ABC's lawyer stating that the law only prohibits medical professionals from sharing information about their patients after treatment. Since the video was shot while Chanko was being treated, the lawyer said the footage was legal.
The court also said that the video of Chanko's death "was not so extreme and outrageous as to support a claim for intentional infliction of emotion distress" nor did a breach of the duty not to disclose personal information about the patient take place "since no such information" was disclosed.
The state health department has reached other conclusions. In a letter sent to Susan Mascitelli, senior vice president of New York-Presbyterian, the health department cited the hospital's policy and the agreement with ABC that requires the hospital to explicitly ask for the patient's consent before photographing, filming or audio recording. The Chanko patriarch was awake and alert when he was brought to the E.R. and could have been able to give the staff his permission if he wanted to be filmed.
"The patient was unaware and uninformed that he was being filmed and viewed by a camera crew while receiving medical treatment thus his privacy in receiving medical treatment was not ensured," the state health department said.
No sanction was imposed on New York-Presbyterian, however. Federal regulators are still reviewing whether the Chanko family's right to privacy was violated.
The American College of Emergency Physicians (ACEP) explicitly discourages the filming for public viewing of E.R. patients and staff "except when they can give fully informed consent prior to their participation."
Joel Geiderman, chairman of the ethics committee at ACEP, likens it to secretly video-recording people inside a store's dressing room and only asking for permission later.
"Taken to its logical conclusion, what they're saying is you can invite anyone in, and unless the patient objects at that very moment, there's no violation of the patient's privacy," Joy Pritts, former chief privacy officer at the Office of the National Coordinator for Health Information Technology, said. "That's crazy."
