By Mary R. Anderlik
Health Law & Policy Institute
For over a decade, reality-based TV shows have placed camera crews at the scenes of accidents and alongside paramedics. Now "Trauma: Life in the ER" is bringing the camera crew into the hospital.
"Trauma," the top-rated show on the Learning Channel, has drawn critics as well as viewers. According to a producer of the show, no segment is aired unless the patient featured has signed a release. Notices are posted when filming is taking place, and a patient has a right to request that filming be stopped. Still, filming begins without consent, and many patients arrive in distress or unconscious, and hence in poor condition to process information or exercise their "right" to call a halt.
This vulnerability is significant for those who argue that filming violates health professionals’ ethical duties to patients. In a crisis, should patients and their families have to worry about the presence of another set of strangers, beyond the other users of emergency services (who are likely preoccupied with their own affairs) and hospital personnel? The release policy does not address the wrong that may be done by filming without prior consent or the sense of violation patients or family members may experience when they learn that someone is making a record of their trauma, hoping to turn it into public drama, or worse, entertainment. Defenders of "Trauma" point to its value in educating the public about what goes on in an emergency room. The show may counter unrealistic expectations created by programs such as "ER" and "Chicago Hope." Some patients welcome the opportunity to play a role in educating others, enjoy a bit of fame, or recover or relive a significant event.
If the host hospitals, participating health care professionals, and producers of "Trauma" believe their legal obligations are satisfied by a policy of no broadcast without a release, they may be overly sanguine. State laws vary, but inviting the presence at the bedside (or gurney-side) of a third party with no involvement in patient care or hospital administration may implicate statutes affirming the confidentiality of communications in the context of health care. For example, in Texas, some confidentiality protections are limited to recorded information, such as an entry in a patient’s medical record. However, the confidentiality provision of the Medical Practice Act extends to any communication between a physician and a patient in connection with professional services. A similar provision covers EMS personnel. The introduction of microphones may run afoul of eavesdropping statutes.
Patients and family members recorded or filmed without their consent may also have a cause of action for intrusion upon seclusion. This tort has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. It does not require trespass on private property or publication or broadcast of private facts.
The leading case may be Shulman v. Group W Productions, decided by the California Supreme Court in 1998. There, a cameraman filmed the plaintiffs’ extrication from an overturned vehicle and their subsequent transportation to a hospital via helicopter; the flight nurse wore a small microphone. The episode was broadcast on "On Scene: Emergency Response." The plaintiffs advanced two causes of action for invasion of privacy, the first based on intrusion, i.e., the videotaping, and the second based on publication of private facts, i.e., the broadcast.
In the analysis of the intrusion claim, the key issue was whether the plaintiffs had an "objectively reasonable" expectation of solitude. The court drew a distinction between accident or rescue scenes, which are open and often draw the press, and ambulances and hospital rooms. (In a subsequent case, Sanders v. American Broadcasting Companies, the court added that "the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable.") Ironically, the existence of "Trauma" and similar programs may be altering expectations of privacy, at least in emergency care settings.
The court found that First Amendment concerns were sufficient to support a privilege for the broadcast, but not the videotaping. The U.S. Supreme Court has ruled that the press enjoys no constitutional immunity from liability for torts or crimes committed in the course of newsgathering. In fact, the constitutional protection for newsgathering is narrower than the protection for publication, since the intrusion tort does not require any scrutiny of content. While the societal interest in reporting might, as a matter of tort law, justify an intrusion that would be considered offensive if undertaken for another purpose, a "reasonable jury could conclude the producers’ desire to get footage that would convey the ‘feel’ of the event" did not justify the microphone or the ride-along.
Of course, damages may be difficult to establish. In an earlier California case, Miller v. National Broadcasting Co., a camera crew accompanied paramedics to a private home for an unsuccessful resuscitation attempt. The state district court allowed the widow, who was present, to recover for anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, and anguish. A daughter who was not present but saw a television broadcast was not permitted to recover.
The social worth of programs such as "Trauma" has yet to be established. The asserted benefit, more realistic public expectations concerning emergency care, must be weighed against the risk of nourishing an unhealthy voyeurism. Exposure to the exposed bodies and emotions of others may promote empathy, but the dulling of feeling seems a more likely consequence of the consumption of "real" suffering and gore via the television. In any event, the benefit of public education would not appear to justify the wrong to the individual who is filmed in extremis without his or her consent.