ABC films a dying man without consent; New York court upholds widow's claim against hospital, rejects her claim against ABC

Chanko v. Am. Broad. Co., No. 44 (N.Y. Mar. 31, 2016).

 New York-Presbyterian Hospital (credit:  flickr / ecksunderscore )

New York-Presbyterian Hospital (credit: flickr / ecksunderscore)

While crossing a street near his home, Mark Chanko was hit by a sanitation truck. He was rushed to New York-Presbyterian Hospital, where he died less than an hour after he had arrived. 

Sixteen months later, Mark Chanko’s widow, Anita, was watching an ABC documentary on New York-Presbyterian. She saw a surgery resident she recognized as the doctor who had treated her husband. The doctor was responding to an accident; a man had been hit by a truck. Then she saw a man on a stretcher, his face blurred out, moaning in pain and asking where his wife was. And she saw the doctors pronounce him dead. 

Ms. Chanko immediately recognized this man as her husband. ABC had never asked her or anybody in her family for permission to broadcast her husband’s last moments.

She sued New York-Presbyterian for breaching physician-patient confidentiality, and sued ABC for intentional infliction of emotional distress, also called the tort of “outrage.” The New York Court of Appeals says her claim for breach of patient confidentiality may proceed, but that her claim for outrage must be dismissed. The law sets a high bar for the “extreme and outrageous conduct” that must serve as the basis for a claim of outrage, and here that bar isn’t met. Yes, what ABC did “would likely be considered reprehensible by most people.” But it also blurred Mr. Chanko’s image, didn’t name him, and the scene lasted less than three minutes. Although the court doesn’t mention it, this ruling allows it to avoid the potential First Amendment issues that lurk in the background of this case.