Video production is increasing at an exponential rate. Once mainly the domain of television, video footage can now be seen on websites, tablets, phones and an array of social media sharing. Increasingly, people who are appearing in videos are not actors or television personalities. More and more physicians are seen on TV shows consulting with or treating a patient and even performing procedures. Some of these reality physician shows include “NY Med,” “Trauma: Life in the E.R.,” “Boston Med”, “Botched” and “Mystery Diagnosis.” In addition, many physicians are creating videos of patient procedures to post on their websites and YouTube as well as social media. Before allowing medical personnel to share video that includes a patient, know that the patient must sign a written release that includes a robust host of waivers and authorizations.
It is essential to get informed, written consent from patients prior to performing the procedure. Similarly, production companies and TV shows need to obtain a signed release from everyone who is filmed. Anyone who wants to display protected health information or have a patient’s rights waived on TV must obtain informed, written consent prior to filming.
Without proper releases, the healthcare facility can be sued and the physician may be fined and even jailed. The United States Department of Health and Human Services, Office for Civil Rights is the enforcing entity of the Privacy, Security and Breach Notification Rules under the Health Insurance Portability and Accountability Act of 1996, known as HIPAA.
What can happen if proper permissions are not obtained? HHS ordered New York-Presbyterian Hospital to pay $2.2 million and to create a comprehensive correction plan with two years of monitoring after the hospital failed to obtain proper authorizations and leaked video to the media for the show, “NY Med.”
A few standard provisions that are recommended for an authorization release include confidentiality, non-solicitation/compete, liability, governing law and release of rights. However, many different forms of releases exist and some may have legal pitfalls because they fail to include additional mandated provisions related to HIPAA compliance. In addition to these standard provisions, a form involving a patient should include release of protected health information, whether patient compensation is included, patient/physician relationship and an indemnification clause.
A lawyer experienced in healthcare as well as entertainment law should draft the release, waiver and authorization that must be signed prior to a patient appearing in a video or on TV. A simple draft sample release appears on LawTake, which is a database of legal videos and documents created by lawyers. Of course, all forms should be reviewed by lawyers experienced in the subject area of the documents.
Suzanne Natbony is a third-generation lawyer specializing in entertainment and healthcare law with a private practice at the international law firm Aliant LLP, and the Century City law firm, Merino Yebri LLP. She is also general counsel of Beverly Hills Rejuvenation Center and CEO of two startup companies, LawTake and Think Do It.