Chanko v. Am. Broad. Cos.

• Decision Date: 31 March 2016
• Docket Number: No. 44.,44.
• Citation: 2016 N.Y. Slip Op. 02478,27 N.Y.3d 46,49 N.E.3d 1171,29 N.Y.S.3d 879
• Parties: Anita CHANKO, Individually and as Executor of Mark S. Chanko, Deceased, et al., Appellants, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Respondents, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

27 N.Y.3d 46

49 N.E.3d 1171

29 N.Y.S.3d 879

2016 N.Y. Slip Op. 02478

Anita CHANKO, Individually and as Executor of Mark S. Chanko, Deceased, et al., Appellants

v.AMERICAN BROADCASTING COMPANIES, INC., et al., Respondents, et al., Defendants.

No. 44.

Court of Appeals of New York.

March 31, 2016.

Norman A. Olch, New York City, and Law Offices of Mark J. Fox, New York City, for appellants.

Nixon Peabody LLP, Jericho (Michael S. Cohen, Christopher J. Porzio and Michelle Yuen of counsel), for New York and Presbyterian Hospital and another, respondents.

Levine Sullivan Koch & Schulz, LLP, New York City (Nathan Siegel of counsel), for American Broadcasting Companies, Inc., respondent.

OPINION OF THE COURT

STEIN, J.

Defendants' actions in filming a patient's medical treatment and death in a hospital emergency room without consent, and then broadcasting a portion of the footage as part of a documentary series about medical trauma, were not so extreme and outrageous as to support a cause of action by the patient's family members for intentional infliction of emotional distress. However, the complaint sufficiently states a cause of action against the hospital and treating physician for breach of physician-patient confidentiality. Therefore, the Appellate Division order should be modified to reinstate that cause of action against those two defendants.

I.

Mark Chanko (decedent) was brought into the emergency room of defendant The New York and Presbyterian Hospital (the Hospital). He had been hit by a vehicle, but was alert and responding to questions. Defendant Sebastian Schubl was the Hospital's chief surgical resident and was responsible for decedent's treatment. While decedent was being treated, employees of ABC News, a division of defendant American Broadcasting Companies, Inc. (ABC), were in the Hospital—with the Hospital's knowledge and permission—filming a documentary series (N.Y. Med) about medical trauma and the professionals who attend to the patients suffering from such trauma. No one informed decedent or any of the individual

plaintiffs¹ —most of whom were at the Hospital—that a camera crew was present and filming, nor was their consent obtained for filming or for the crew's presence.

Less than an hour after decedent arrived at the Hospital, Schubl declared him dead. That declaration was filmed by ABC, and decedent's prior treatment was apparently filmed as well. Schubl then informed the family of decedent's death, with that moment also being recorded without their knowledge.

Sixteen months later, decedent's widow, plaintiff Anita Chanko, watched an episode of N.Y. Med on her television at home. She recognized the scene, heard decedent's voice asking about her, saw him on a stretcher, heard him moaning, and watched him die. In addition, she saw, and relived, Schubl telling the family of his death. She then told the other plaintiffs, who also watched the episode. This was the first time plaintiffs became aware of the recording of decedent's medical treatment and death.

Plaintiffs commenced this action against, among others, ABC, the Hospital and Schubl. Defendants separately moved to dismiss the complaint. Supreme Court partially granted the motions, dismissing all causes of action except breach of physician-patient confidentiality against the Hospital and Schubl (the fourth cause of action), and intentional infliction of emotional distress against ABC, the Hospital and Schubl (the fifth cause of action) (2014 N.Y. Slip Op. 30116[U], 2014 WL 189531 [2014] ). Defendants separately appealed the order insofar as the motions to dismiss were denied. Plaintiffs did not cross-appeal.

The Appellate Division modified Supreme Court's order by reversing the portions of the order that were appealed, granted the motions in their entirety and dismissed the entire complaint (122 A.D.3d 487, 997 N.Y.S.2d 44 [1st Dept.2014] ). That Court granted plaintiffs leave to appeal.

II.

A. Breach of Physician–Patient Privilege

Initially, we note that plaintiffs did not cross-appeal to the Appellate Division from Supreme Court's dismissal of the cause of action for breach of physician-patient confidentiality as asserted against ABC. Thus, we may consider only whether that cause of action was adequately alleged against the Hospital

and Schubl (see CPLR 5515 ; Hecht v. City of New York, 60 N.Y.2d 57, 60–61, 467 N.Y.S.2d 187, 454 N.E.2d 527 [1983] ; Matter of Harmon, 73 A.D.3d 1059, 1062, 900 N.Y.S.2d 761 [2d Dept.2010] ). To the extent plaintiffs belatedly attempt to argue that ABC aided and abetted those defendants in breaching confidentiality, that argument is not properly before us.

When considering these pre-answer motions to dismiss the complaint for failure to state a cause of action, we must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiffs every possible favorable inference (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). We may also consider affidavits submitted by plaintiffs to remedy any defects in the complaint, because the question is whether plaintiffs have a cause of action, not whether they have properly labeled or artfully stated one (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).

With that standard in mind, we begin by observing that the physician-patient privilege did not exist at common law; it was created by statute, with New York having the first such statute in the nation, now codified at CPLR 4504 (see Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d 525, 529, 749 N.Y.S.2d 462, 779 N.E.2d 173 [2002] ; Dillenbeck v. Hess, 73 N.Y.2d 278, 283, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989] ). That statute provides that, “[u]nless the patient waives the privilege, a person authorized to practice medicine ... shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity” (CPLR 4504[a] ).

The policy objectives of the statute are to: (1) maximize unfettered communication between patients and medical professionals, so that people will not be deterred by possible public disclosure “from seeking medical help and securing adequate diagnosis and treatment”; (2) encourage physicians to candidly record confidential information in medical records, so they are not torn between the legal duty to testify and the professional obligation to honor patient confidences; and (3) protect the reasonable privacy expectations of patients that their sensitive personal information will not be disclosed (Dillenbeck, 73 N.Y.2d at 285, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [internal quotation marks and citation omitted]; see Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d at 529, 749 N.Y.S.2d 462, 779 N.E.2d 173 ). The privilege should “be given a broad and liberal construction to carry out its policy” (Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d at 530, 749 N.Y.S.2d 462, 779 N.E.2d 173 [internal quotation marks and citations omitted] ).

The privilege applies not only to information orally communicated by the patient, but also to information ascertained by observing the patient's appearance and symptoms, unless those factual observations would be obvious to lay observers (see Dillenbeck, 73 N.Y.2d at 284, 539 N.Y.S.2d 707, 536 N.E.2d 1126 ). Generally, the privilege covers all “ ‘information relating to the nature of the treatment rendered and the diagnosis made’ ” (Laura Inger M. v. Hillside Children's Ctr., 17 A.D.3d 293, 295, 794 N.Y.S.2d 36 [1st Dept. 2005], quoting Hughson v. St. Francis Hosp. of Port Jervis, 93 A.D.2d 491, 499, 463 N.Y.S.2d 224 [2d Dept.1983] ). Although not covered by the statute, “information obtained in a professional capacity but not necessary to enable the physician to fulfill his or her medical role is a protected confidence, the disclosure of which constitutes professional misconduct in the absence of patient consent or legal authorization” (Lightman v. Flaum, 97 N.Y.2d 128, 136, 736 N.Y.S.2d 300, 761 N.E.2d 1027 [2001], cert. denied 535 U.S. 1096, 122 S.Ct. 2292, 152 L.Ed.2d 1050 [2002] ; see Education Law § 6530[23] ).

A physician's disclosure of secrets acquired when treating a patient “naturally shocks our sense of decency and propriety,” which is one reason it is forbidden (Dillenbeck, 73 N.Y.2d at 285, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [internal quotation marks omitted] ). Even apart from CPLR 4504, the legislature has declared that it is the public policy of this State to protect the “privacy and confidentiality of sensitive medical information” (Randi A.J. v. Long Is. Surgi–Ctr., 46 A.D.3d 74, 82, 842 N.Y.S.2d 558 [2d Dept.2007] ; see Public Health Law §§ 2803–c [1 ], [3][f]; 4410[2] ). As relates to emergency rooms, specifically, this Court has stated that “[p]atients should not fear that merely by obtaining emergency medical care they may lose the confidentiality of their medical records and their physicians' medical determinations. A contrary result would discourage critical emergency care, intrude on patients' confidential medical relationships and undermine patients' reasonable expectations of privacy” (Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d at 532, 749 N.Y.S.2d 462, 779 N.E.2d 173 ). The physician-patient privilege, together with its concomitant duty of confidentiality, belongs to the patient and is not terminated by death alone (see Prink v. Rockefeller Ctr., 48 N.Y.2d 309, 314, 422 N.Y.S.2d 911, 398 N.E.2d 517 [1979] ).

The elements of a cause of action for breach of physician-patient confidentiality are: (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...