By Greg Freeman
EXECUTIVE SUMMARY
Hospitals that allow TV shows to record in their facilities put themselves at risk. Any decision to participate should be made carefully.
- The Office for Civil Rights has penalized hospitals for HIPAA violations related to reality TV.
- Some facilities are allowing cameras inside again.
- Valid informed consent can be difficult to obtain.
Even after hospitals were fined millions of dollars for participating in reality TV shows, some healthcare facilities are allowing cameras in again. The experience comes with great risk.
The HHS Office for Civil Rights (OCR) settled HIPAA violations at three Boston hospitals for almost $1 million in 2018 for allowing the show “Save My Life: Boston Trauma” to record in their facilities in 2014 and 2015 without obtaining authorization from patients. In 2016, OCR entered a $2.2 million settlement with a New York City Hospital regarding the filing of an ABC News documentary program, “NY Med.” OCR said the hospital allowed the recording of patients in significant distress. In at least one case, the recording continued after an employee asked the crew to stop.1
OCR alleged the hospitals allowed improper disclosure of protected health information (PHI) during the recordings, despite implementing safeguards and requiring consent from patients. At the time, there was considerable criticism in the healthcare and legal communities about the impropriety of filming first and asking for consent after, and the ethics of seeking participation in a TV show when the subjects are in distress.
Netflix now is airing “Emergency NYC,” a documentary series that focuses on various aspects of medical care and includes some footage shot inside healthcare facilities. A similar Netflix program centering on one hospital aired in 2020.
Taking on Great Risks
Any hospital participating in a reality show is putting itself at great risk, says Matt Fisher, JD, general counsel for Carium, a telehealth and remote patient monitoring company based in Petaluma, CA. At a minimum, Fisher says, there must be significant precautions to protect patient privacy, but even that does not eliminate the risk.
Fisher says he is surprised any hospital would take on that risk after the OCR settlements and all the associated criticism of patient exploitation. “Those settlements certainly demonstrate all the risk that’s associated with it. It’s really hard to get appropriate consent for the disclosure of patient information that’s inevitably going to happen throughout the recording,” he says. “Theoretically, if you can get the consent before you started filming and getting anyone on camera, and you’re not taking advantage of a situation, you might be able to have a setup that’s going to pass muster under HIPAA. But I think it’s going to be very difficult in the moment, and from a production perspective, it might undermine the kind of reality in the programming you’re trying to create.”
If a risk manager is contemplating such an activity, or if hospital leaders insist on it despite the risk manager’s advice, Fisher advises studying the OCR settlements and Corrective Action Plans carefully. All the same challenges and requirements still exist.
“There certainly has not been any loosening of any of the privacy requirements on that front, so the landscape should be well known,” Fisher says. “I think it should also be understood that if your facility were to proceed with this type of programming, you can expect to be a target and expect an investigation to occur, given that OCR has made its position fairly clear on filming within a hospital like this.”
As to why any hospital would even consider such an activity after the previous problems, Fisher speculates hospital leaders may see those OCR settlements as roadmaps for what problems to avoid and think they can do it better than the hospitals that got into trouble. There also might be financial incentives that drive the decision despite the risks.
“It should be fairly obvious what the problems are, but at the same time we know the settlements are very sparse in terms of the level of detail. You might not know with specificity exactly what the problems were, and therefore you won’t know if you’re developing a plan that will avoid those same problems,” Fisher says. “I don’t think it’s worth the risk to go down this road again.”
Consent Will Not Be Easy
Consent will be a primary concern if hospital leaders consider participating in a TV show, says Brett Corson, JD, partner with Wilson Elser in Boston. However, the solution is not as simple as requiring the TV crew to ask patients for permission.
“The nature of a hospital, especially one with an active emergency department and/or trauma center, is such that people may not be able to consent to appearing in a television show,” Corson says. “Aside from the HIPAA risks of disclosing private medical information, hospitals should be concerned about private lawsuits and security risks, including cybersecurity.”
If a hospital is intent on allowing this type of activity, the risk management department must be “extremely and overly cautious” to protect its patients, employees, data, and facility. Corson advises following these policies:
- Require the production crew to obtain consent forms for anyone who appears on camera. Patients must be able to retroactively withdraw consent before the show airs. “Someone who is in a vulnerable position in a hospital may not be thinking clearly and not want their health concerns put on air,” Corson says. “For example, someone who comes in for a routine visit signs a consent but is then advised of a serious medical condition. That person may not want that information to be public.”
- Faces must be blurred and voices must be disguised for anyone who has not consented to appear.
- Post signage outside and throughout the hospital stating camera crews may be present, providing people with sufficient warning.
- Obtain indemnification agreements in favor of the hospital and against the media company.
In addition, the hospital security teams should be apprised and consulted, Corson says. Cybersecurity experts should make sure the show does not inadvertently allow hackers to access the hospital’s security system. For instance, broadcasting an image of an employee’s identification badge might enable someone to recreate it and obtain access. Artificial intelligence also could be used to copy someone’s voice or handwriting, which then might be used for nefarious purposes.
“Similarly, the facility itself will need enhanced security to deal with the nonhospital personnel on site to protect the crew, the staff, and patients. Television shows often spur rabid fan behavior, and the facility could be the recipient of overcrowding if people come just to see a doctor who they view as a celebrity,” Corson explains.
On the other hand, if a real person at the hospital is portrayed in a negative light, perhaps through editing that enhances the drama of a storyline, that person could face reprisal from viewers, Corson notes. Hospital security would need to anticipate that threat.
“Frankly, it’s difficult to understand how there would be a benefit other than financial. Even in that setting, the hospital could be exposing itself to additional problems,” Corson says. “A nonprofit facility that derives revenue from the filming of a TV series may not be able to rely on charitable immunity for claims arising out of that filming.”
Corson says it is unknown whether a traditional hospital insurance policy would cover that type of claim. Such a claim could easily result in a premium increase.
“Overall, it’s an idea rife with risks. It’s a plaintiff’s dream, in many ways — providing insight into hospital procedures that can be binge-watched and adding new and deeper-pocketed defendants,” Corson says. “Who has even heard of Netflix being sued for delayed diagnosis?”
REFERENCE
- U.S. Department of Health & Human Services. Unauthorized disclosure of patients’ protected health information during ABC Television filming results in multiple HIPAA settlements totaling $999,000. Sept. 20, 2018. https://public3.pagefreezer.co...
SOURCES
- Brett Corson, JD, Partner, Wilson Elser, Boston. Phone: (617) 422-5302. Email: [email protected].
- Matt Fisher, JD, General Counsel, Carium, Petaluma, CA. Email: [email protected].
Even after hospitals were fined millions of dollars for participating in reality TV shows, some healthcare facilities are allowing cameras in again. The experience comes with great risk. The Office for Civil Rights has penalized hospitals for HIPAA violations related to reality TV.
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