In the age of smartphones, hospitals have many privacy concerns when patients, their protected health information, and healthcare providers, are subject to being filmed by visitors on an increasing basis. State privacy laws can be violated, let alone the federal Health Insurance Portability and Accountability Act’s (“HIPAA”) Privacy Rule. Given these concerns, a decision to invite a film crew into a hospital—greatly increasing the chance and magnitude of such violations—should be very carefully considered.

On September 20, 2018, the Department of Health and Human Services, Office for Civil Rights (“OCR”) announced its settlements totaling $999,000 with three Boston hospitals—Boston Medical Center, Brigham and Women’s Hospital, and Massachusetts General Hospital—for such potential violations. The hospitals had invited crews on their premises to film a documentary series on the ABC television network, titled “Boston Med,” without first obtaining the patients’ authorization, thereby compromising patients’ privacy.

The settlements do not come as a surprise, given OCR’s $2.2 million settlement with NewYork-Presbyterian Hospital on April 16, 2016 for the filming of “NY Med,” ABC’s documentary series filmed in New York City. OCR Director Roger Severino emphasized that patients in hospital are often at their most private and vulnerable, and do not expect to be filmed. During the filming of “NY Med,” one patient was filmed while dying, and the other was filmed while in significant distress.

OCR has provided specific guidance in these cases, making it clear that it is insufficient for film crews to mask patients’ identities through blurring or other means absent authorization. The magnitude of these settlements also telegraph the difficulty, or impossibility, of such filming in hospitals absent careful and comprehensive precautions to ensure authorizations are obtained.

Tache, Bronis, Christianson and Descalzo, P. A.
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