Saturday, January 3, 2015

Some Hospitals use Dying Patients for Publicity; how to Protect Yourself

Image Courtesy of Jeffrey M. Vinocur
Today’s New York Times features a troubling story about a hospital that allowed reality TV camera crews to film Mr. Mark Chanko, a trauma patient’s dying moments after he was rushed to the hospital after being struck by a truck.  The hospital acted without Mr. Chanko's consent, and never notified his family that Mr. Chanko's death was filmed, or might be broadcast on television.  One night, completely unexpectedly, his wife, Mrs. Anita Chanko, was distressed to hear her deceased husband’s anguished voice crying out in his final moments, on an ABC reality show.  The couple’s daughter, Pamela, who also saw the show, suffered emotional distress after witnessing the graphic details of her father’s gruesome death.

The hospital's prior vice president of public affairs once said of the show, “You can’t buy this kind of publicity, an eight-part series on a major broadcast network.”  In this blog post, I will discuss legal steps you can take to protect your rights, and to avoid your family's anguish being used for publicity.

The Chanko family sued the hospital and ABC, but has faced an uphill battle in court.  Recently, the family’s case was thrown out at the appellate level.  A key defense for the hospital has been that the patient was not identifiable to the public because his face was blurred out, and that in any event, his privacy rights were extinguished upon his death.  Further, the defendants are asserting that the First Amendment protects their free expression of the patient’s dying images.  

Carrying the hospital’s legal defense to its logical conclusion, you could be filmed without your consent while undergoing intensive care, for no medically justifiable reason other than building publicity for the hospital.  Scarily, hospitals are claiming you have no right to keep those images private after your death, and the trend toward publicizing these graphic cases is growing.

To fight back against the argument that a hospital can publish images of you without your knowledge or consent, consider addressing the issue in your living will and durable power of attorney for healthcare.  Specifically demand that your hospital not use your images in any type of public release after your death, even if your face is blurred or other steps are taken to mask your identity.  The hospital’s legal argument to publicize would probably be more difficult if it overrode a patient’s express desires not to be filmed, especially since it has no legitimate medical reason to do so in the first place.

Interestingly, the New York Times article describes the legal difficulties of families arguing privacy rights in court, but does not describe any argument about property rights.  Consider adding a line to your healthcare directives stating that you and your heirs do not release ownership of the property rights to any image taken of you at the hospital. By expressly telling the hospital that you are claiming ownership of your own image, they may be on notice that any use of your image would be infringing on your family’s intellectual property rights after your death.  While it is an unusual argument, note that privacy rights might extinguish at death, but it is well established that property rights do not.  That gives your family a much better chance of getting its case before a jury if a hospital goes against your wishes and broadcasts your death on TV.

It is unfortunate that in of all places, we have to worry about trusting the confidentiality of our most private moments in a hospital.  However, an estate planning attorney can help you clarify in your medical directives that you don’t want to be used for hospital publicity.  If nothing else, planning ahead will give your family’s argument some teeth in court if your images are exploited after your death.

Published by Ian Holzhauer, Esq. of Nagle Obarski PC in Naperville, IL.  

Note:  The information above is not legal advice and is not the basis of an attorney-client relationship.  If you need assistance, you can hire an attorney to assist you with your individual legal needs. 


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