Anita Chanko,, et al., Appellants,v.American Broadcasting Companies Inc., et al., Respondents, Anil S. Ranawat, et al., Defendants.

Brief

N.Y.February 18, 2016

To be Argued by: MICHAEL S. COHEN (Time Requested: 20 Minutes) APL 2015-00086 New York County Clerk’s Index No. 152552/13 Court of Appeals of the State of New York   ANITA CHANKO, as Executor of the Estate of Mark S. Chanko, deceased, ANITA CHANKO, individually, KENNETH CHANKO, BARBARA CHANKO, PAMELA CHANKO and ERIC CHANKO, Plaintiffs-Appellants, - against - AMERICAN BROADCASTING COMPANIES, INC., THE NEW YORK AND PRESBYTERIAN HOSPITAL and SEBASTIAN SCHUBL, M.D., Defendants-Respondents, - and - ANIL S. RANAWAT and TRAVIS MAAK, M.D., Defendants. BRIEF FOR DEFENDANTS-RESPONDENTS THE NEW YORK AND PRESBYTERIAN HOSPITAL and SEBASTIAN SCHUBL, M.D. On the Brief: CHRISTOPHER J. PORZIO MICHELLE YUEN NIXON PEABODY LLP Attorneys for Defendants-Respondents The New York and Presbyterian Hospital and Sebastian Schubl, M.D. 50 Jericho Quadrangle, Suite 300 Jericho, New York 11753 Tel.: (516) 832-7500 Fax: (516) 832-7555 Date Completed: August 7, 2015 DISCLOSURE STATEMENT Pursuant to Rules 500.1(f) and 500.13(a) of the New York Court of Appeals Rules of Practice, defendant-respondent The New York and Presbyterian Hospital hereby states that it has no parents, subsidiaries, or affiliates. -i- TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ....................................................................................... iii QUESTIONS PRESENTED ........................................................................................ 1 PRELIMINARY STATEMENT ................................................................................. 3 STATEMENT OF FACTS .......................................................................................... 8 The Allegations of the Complaint and the Trial Court’s Decision ................... 10 The Appeal to the Appellate Division, First Department .................................. 12 ARGUMENT ............................................................................................................... 14 POINT I DISMISSAL OF THE FOURTH CAUSE OF ACTION SHOULD BE AFFIRMED ..................................................................... 14 A. The Fourth Cause of Action Complains of a Non-Actionable Intrusion on Decedent’s Privacy .............. 14 B. The Complaint Fails to Allege that Decedent Sustained Any Harm Resulting From the Alleged Disclosures of His Medical Condition, and the Complaint Explicitly Negates Any Possible Finding of Harm ................................................................. 22 C. Reinstating the Fourth Cause of Action Would Open the Floodgates of Litigation .......................... 29 -ii- POINT II APPELLANTS’ ARGUMENTS CONCERNING THE DVD OFFERED BY ABC AS DOCUMENTARY EVIDENCE PROVIDE NO BASIS TO REVERSE ANY PORTION OF THE ORDER APPEALED FROM ...................... 33 A. The Authenticated DVD of the Broadcast is “Documentary Evidence” within the Meaning of C.P.L.R. 3211(a)(1), and Was Properly Considered Below ............................................................... 33 B. Even If the DVD Does Not Definitively Negate Appellants’ Purported Claim for Breach of Confidentiality, That Is Not a Basis to Reverse Dismissal of That Claim ..................................................... 36 POINT III DISMISSAL OF THE FIFTH CAUSE OF ACTION, ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, SHOULD BE AFFIRMED ..................................................................... 39 A. As a Matter of Law, the Hospital Defendants’ Purported Actions Do Not Meet the Definition of “Extreme and Outrageous” Conduct ............................. 39 B. The Conduct Alleged in Support of the Fifth Cause of Action Was Not Directed at Appellants nor Was It Intended to Cause Emotional Harm ................. 47 C. The Conduct Alleged in Support of the Fifth Cause of Action Is Privileged under New York Law and Protected by the Free Speech Guarantees of the First Amendment ... 50 CONCLUSION ............................................................................................................ 56 -iii- TABLE OF AUTHORITIES Page(s) CASES Abdelrazig v. Essence Commc’ns., 225 A.D.2d 498 (1st Dep’t 1996) ....................................................................... 52 Alfano v. NGHT, Inc., 623 F. Supp. 2d 355 (E.D.N.Y. 2009) ................................................................ 52 Anderson v. Abodeen, 29 A.D.3d 431 (1st Dep’t 2006) ......................................................................... 43 Andrews v. Bruk, 220 A.D.2d 376 (2d Dep’t 1995) ........................................................................ 44 Arrington v. New York Times Co., 55 N.Y.2d 433 (1982) ......................................................................................... 15 Bartnicki v. Vopper, 532 U.S. 514 (2001) ............................................................................................ 54 Burton v. Matteliano, 81 A.D.3d 1272 (4th Dep’t 2011) ..................................................... 18, 19, 21, 26 Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439 (2013) ......................................................................................... 23 Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379 (1984) ......................................................................................... 15 Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332 (1st Dep’t 1998) ................................................................. 49, 50 Conboy v. AT&T Corp., 241 F.3d 242 (2d Cir. 2001) ......................................................................... 40, 41 Creel v. Crown Publ’g., 115 A.D.2d 414 (1st Dep’t 1985) ....................................................................... 52 Delan v. CBS, Inc., 91 A.D.2d 255 (2d Dep’t 1983) .......................................................................... 51 -iv- Dillenbeck v. Hess, 73 N.Y.2d 278 (1989) ......................................................................................... 16 Doe v. Am. Broad. Co., 152 A.D.2d 482 (1st Dep’t 1989) ................................................................. 44, 45 Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d 480 (2014) ................................................................................... 19, 21 Doe v. Roe, 93 Misc. 2d 201 (Sup. Ct. N.Y. County 1977) ....................................... 16, 17, 25 Dominguez v. Vibe Magazine, No. 112004/07, 2008 WL 4725379 (Sup. Ct. N.Y. County Sept. 15, 2008) ................................................................................................................... 52 Dongguk Univ. v. Yale Univ., 734 F.3d 113 (2d Cir. 2013) ............................................................................... 54 Fleischer v. NYP Holdings, Inc., 104 A.D.3d 536 (1st Dep’t 2013) ....................................................................... 49 Fontanetta v. John Doe 1, 73 A.D.3d 78 (2d Dep’t 2010) ............................................................................ 35 Foster v. Svenson, 128 A.D.3d 150 (1st Dep’t 2015) ................................................................. 45, 46 Frank v. Nat’l Broad. Co., 119 A.D.2d 252 (2d Dep’t 1986) ........................................................................ 52 Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985) ................................................................................... 40, 53 Furlender v. Sichenzia Ross Friedman Ference LLP, 79 A.D.3d 470 (1st Dep’t 2010) ......................................................................... 34 Green v. Leibowitz, 118 A.D.2d 756 (2d Dep’t 1986) ........................................................................ 48 Gro-Up Frocks, Inc. v. Manners, 55 A.D.2d 531 ..................................................................................................... 27 -v- Howell v. New York Post Co., 81 N.Y.2d 115 (1993) .................................................................14, 40, 41, 50, 51 IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132 (2009) ......................................................................................... 24 Juric v. Bergstraesser, 44 A.D.3d 1186 (3d Dep’t 2007) .................................................................. 18, 26 Kagan v. HMC-New York, Inc., 94 A.D.3d 67 (1st Dep’t 2012) ........................................................................... 55 Karlsons v. Guerinot, 57 A.D.2d 73 (4th Dep’t 1977) ........................................................................... 23 Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90 (1993) ............................................................................... 23, 24, 28 Kumbar v. Estis, 1 N.Y.2d 399 (1956) ........................................................................................... 23 Kurtzman v. Bergstol, 40 A.D.3d 588 (2d Dep’t 2007) .......................................................................... 24 Lemerond v. Twentieth Century Fox Film Corp., No. 07 Civ. 4635(LAP), 2008 WL 918579 (S.D.N.Y. Mar. 31, 2008) .............. 51 Lorie Dehimer Irrevocable Trust, 122 A.D.3d 1352 (4th Dep’t 2014) ..................................................................... 24 MacDonald v. Clinger, 84 A.D.2d 482 (4th Dep’t 1982) ............................................................. 17, 23, 25 Madden v. Creative Servs., 84 N.Y.2d 738 (1995) ......................................................................................... 44 Mahoney v. Ogden, 6 A.D.2d 711 (2d Dep’t 1958) ............................................................................ 27 Martin v. Citibank, N.A., 762 F.2d 121 (2d Cir. 1985) ............................................................................... 47 -vi- Messenger v. Gruner + Jahr Printing and Publ’g, 94 N.Y.2d 436 (2000) ................................................................................... 14, 51 Murphy v. Am. Home Prod. Corp., 58 N.Y.2d 293 (1983) ......................................................................................... 41 Nasaba Corp. v. Harfred Realty Corp., 287 N.Y. 290 (1942) ........................................................................................... 28 Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990) ............................................................................... 28 Planned Consumer Mktg. v. Coats & Clark, 127 A.D.2d 355 (1st Dep’t 1987) ....................................................................... 27 Pokoik v. Pokoik, 115 A.D.3d 428 (1st Dep’t 2014) ....................................................................... 24 Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116 (S.D.N.Y. May 29, 1991) ................................................. 45, 48 Randi A.J. v. Long Island Surgi-Center, 46 A.D.3d 74 (2d Dep’t 2007) ............................................. 13, 18, 21, 22, 23, 26 Roach v. Stern, 252 A.D.2d 488 (2d Dep’t 1998) ........................................................................ 42 Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902) ..................................................................................... 30, 31 Roberts v. Pollack, 92 A.D.2d 440 (1st Dep’t 1983) ......................................................................... 49 Rose v. Daily Mirror, Inc., 284 N.Y. 335 (1940) ........................................................................................... 28 Rut v. Young Adult Institute, 74 A.D.3d 776 (2d Dep’t 2010) .......................................................................... 25 Sarwer v. Conde Nast Publ’ns, Inc., 237 A.D.2d 191 (1st Dep’t 1997) ....................................................................... 51 -vii- Sawicka v. Catena, 79 A.D.3d 848 (2d Dep’t 2010) .................................................................... 41, 42 Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287 (1936) ........................................................................................... 23 Seltzer v. Bayer, 272 A.D.2d 263 (1st Dep’t 2000) ................................................................. 43, 49 Semper v. New York Methodist Hosp., 786 F. Supp. 2d 566 (E.D.N.Y. 2011) ................................................................ 48 Shannon v. MTA Metro-N. R.R., 269 A.D.2d 218 (1st Dep’t 2000) ....................................................................... 49 Simon v. Noma Elec. Corp., 293 N.Y. 171 (1944) ........................................................................................... 23 Small v. Lorillard, 94 N.Y.2d 43, 57 ................................................................................................. 55 Smukler v. 12 Lofts Realty, Inc., 156 A.D.2d 161 (1st Dep’t 1989) ....................................................................... 48 Snyder v. Phelps, 562 U.S. 443 (2011) ............................................................................................ 54 Solco Plumbing Supply, Inc. v. Hart, 123 A.D.3d 798 (2d Dep’t 2014) ........................................................................ 35 Stella v. Nassau, 71 A.D.3d 573 (1st Dep’t 2010) ................................................................... 42, 43 Stephano v. News Grp. Publ’ns, 64 N.Y.2d 174 (1984) ......................................................................................... 51 Stuto v. Fleishman, 164 F.3d 820 (2d Cir. 1999) ............................................................................... 40 Sylvester v. City of New York, 385 F. Supp. 2d 431 (S.D.N.Y. 2005) ................................................................ 28 -viii- Tighe v. Ginsberg, 146 A.D.2d 268 (4th Dep’t 1989) ........................................................... 17, 18, 26 Tobin v. Grossman, 24 N.Y.2d 609 (1969) ................................................................................... 31, 32 Walter v. NBC Television Network, Inc., 27 A.D.3d 1069 (4th Dep’t 2006) ....................................................................... 52 Warner v. Druckier, 266 A.D.2d 2 (1st Dep’t 1999) ........................................................................... 49 Williams v. Roosevelt Hospital, 66 N.Y.2d 391 (1985) ......................................................................................... 19 Yue Fung USA Enters., Inc. v. Novelty Crystal Corp., 105 A.D.3d 840 (2d Dep’t 2013) ........................................................................ 34 STATUTES C.P.L.R. 3211(a)(1) (McKinney 2015) .............................................. 1, 10, 33, 34, 38 C.P.L.R. 3211(a)(7) (McKinney 2015) .................................................................... 10 C.P.L.R. 4504 (McKinney 2015) ....................................................................... 21, 32 C.P.L.R. 4507 (McKinney 2015) ............................................................................. 32 C.P.L.R. 4508 (McKinney 2015) ............................................................................. 32 C.P.L.R. 5713 (McKinney 2015) ............................................................................. 13 N.Y. EDUC. LAW § 6530(23) (McKinney 2015) ...................................................... 32 N.Y. MENT. HYG. LAW § 33.13(c) (McKinney 2015) ............................................. 32 N.Y. PUB. HEALTH LAW § 2803-c (McKinney 2015) .............................................. 32 N.Y. PUB. HEALTH LAW § 3371 (McKinney 2015) ................................................ 32 N.Y. CIV. RIGHTS LAW §§ 50 and 51 (McKinney 2015) ....................... 10, 14, 15, 31 N.Y. Comp. Codes R. & Regs. tit. 10, § 405.7(b) (2015) ....................................... 32 Pub. L. No. 104-191, 110 U.S. Stat. 1936 [1996] .................................................. 32 -ix- OTHER AUTHORITIES 42 C.F.R. § 482.13(c)-(d) ........................................................................................ 32 42 C.F.R. § 484.10(d) .............................................................................................. 32 David D. Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, C.P.L.R. C3211:10 ............................................................................. 36 Resuscitating Privacy in Emergency Settings, AMA J. ETHICS, July 2011, available at http://virtualmentor.ama-assn.org/2001/07/code1- 0107.html ............................................................................................................ 16 U.S. CONST. amend. I ......................................................................... 7, 50, 53, 54, 55 QUESTIONS PRESENTED 1. Is a tort cause of action for breach of the doctor-patient “fiduciary” duty of confidentiality stated where the claim arises from the mere presence of non-caregivers during a patient’s examination or treatment, in the course of which no embarrassing, sensitive, or otherwise detrimental information about the patient was disclosed, and where plaintiff concedes that such alleged disclosure resulted in no cognizable harm or damage to the patient? The Appellate Division answered this question in the negative, and dismissed the fourth cause of action. 2. Is a DVD, which is properly authenticated as one containing the actual broadcast of a television program, admissible on a C.P.L.R. 3211(a)(1) motion, to demonstrate the content of such broadcast, and can such DVD serve as the basis for dismissal of a cause of action alleging the intentional infliction of emotional distress based on that broadcast? The Appellate Division implicitly answered this question in the affirmative, based on its evident reliance on the DVD to dismiss the cause of action alleging the intentional infliction of emotional distress. 3. Is the alleged conduct of allowing defendant-respondent ABC to broadcast and disseminate a news documentary program which included a fragment depicting the medical care and treatment of an unrecognizable and -2- unidentified patient who died, sufficiently extreme and outrageous conduct to state a cause of action for the intentional infliction of emotional distress? The Appellate Division answered this question in the negative and dismissed the cause of action alleging intentional infliction of emotional distress. -3- PRELIMINARY STATEMENT Defendants-Respondents The New York and Presbyterian Hospital (“NYP”) and Sebastian Schubl, M.D. (collectively referred to herein as the “Hospital Defendants”) submit this brief in opposition to the appeal of Plaintiffs-Appellants (“Appellants”) from the Order of the Appellate Division, First Department dated November 18, 2014 (the “Order”), which reversed the orders of the trial court (Mendez, J.) and dismissed the complaint as against the Hospital Defendants, in its entirety. By this appeal, Appellants continue their ever-shifting effort to seize upon some recognized theory of recovery into which they might shoehorn the facts alleged in the complaint, and thereby state a cause of action. Notwithstanding Appellants’ expression of outrage over the alleged conduct of defendants- respondents, legal analysis demonstrates that the conduct alleged is simply not actionable, and that the Appellate Division properly dismissed the complaint. The two purported causes of action at issue on this appeal arise out of the emergency treatment of 83 year-old Mark Chanko, who suffered fatal injuries after he was struck by a sanitation truck on a Manhattan street and rushed to NYP. Mr. Chanko’s treatment and unfortunate demise, less than an hour after arriving at the hospital, were the subjects of a two and one-half minute segment in an eight-hour medical news documentary television series, produced, filmed, edited, and -4- broadcast by ABC News, a division of defendant-respondent American Broadcasting Companies, Inc. (“ABC”), entitled “NY Med.” The brief segment regarding the treatment of Mr. Chanko aired some sixteen months after his demise and was allegedly viewed by several of his family members. Mr. Chanko’s identity was entirely concealed. Members of his family who were present at NYP do not appear and are not heard at all on the broadcast. The first claim under review on this appeal, the fourth cause of action, complains that the Hospital Defendants allowed ABC News camerapersons to enter and otherwise be present in the areas where decedent was treated. Appellants mischaracterize this as an alleged breach of the doctor-patient duty of confidentiality. As pleaded, however, this claim is actually for a common-law intrusion on decedent’s privacy, which is not actionable in New York. Moreover, the nature of the asserted breach here, and the surrounding circumstances alleged, are substantially different from those presented in the handful of lower court decisions which have recognized tort claims for breach of the doctor-patient duty of confidentiality. All of those decisions concerned the post-examination or post-treatment disclosure of embarrassing, sensitive, or detrimental information concerning the patient which allegedly resulted in psychological or pecuniary harm to the patient. Therefore, contrary to Appellants’ hyperbolic contention, dismissal of this claim does not “eviscerate[s] the -5- understanding of physician-patient confidentiality which has stood for over 140 years.” To the contrary, upholding the fourth cause of action under the facts alleged would be entirely inconsistent with the aforementioned decisions, and would place the courts of this state in the untenable role of regulators of hospital operations. It would also open the floodgates of litigation, by plaintiffs seeking to test and define, on an ad hoc basis, the parameters of a tort rule regarding the complex issue of who may be present during the examination or treatment of a patient. For this reason, among others, regulation of patient privacy is far better left to the regulators and the legislature. Perhaps more significant, recognition of the fourth cause of action by this Court would fly in the face of the fundamental purpose of tort law, i.e., to redress injury, because no injury to decedent here is alleged or possible. Specifically, the allegations supporting this claim do not include any assertion of cognizable harm or damage to decedent - pecuniary, emotional, or otherwise - as a result of the alleged disclosures of his medical condition to documentary filmmakers. Nor have Appellants ever identified any such harm to any court during this litigation, including in their brief on this appeal. In fact, Appellants explicitly negate any possible psychological harm to decedent, by alleging and arguing that decedent was entirely unaware of the presence of ABC News camerapersons, and hence, the alleged disclosure of his “medical information.” This precludes, as a matter of -6- law, any finding of emotional or psychological harm to decedent as a result of the alleged disclosures. In addition, because he died during the course of the filming (i.e., in the course of the alleged disclosures), there could be no conceivable pecuniary loss to him or his estate, either. Accordingly, no viable claim for breach of the fiduciary duty of confidentiality can possibly be made out here, as it is axiomatic that a tort claim simply cannot be stated and will not lie in the absence of any injury. The second claim brought up for review, Appellants’ fifth cause of action, alleges the intentional infliction of emotional distress (“IIED”) by virtue of the “broadcast and dissemination” of the NY Med documentary program. The Hospital Defendants’ alleged conduct of “allow[ing] and permit[ing]” the production of that program by ABC News does not, as a matter of law, approach the extraordinarily high level of extreme and outrageous conduct necessary to state such a cause of action under this Court’s prior holdings and the other relevant precedents dismissing IIED claims; nor does the alleged recording of Dr. Schubl’s communication of the news of Mr. Chanko’s death to family members. Simply put, the circumstances presented here do not, as a matter of law, come anywhere near the definition of extreme and outrageous conduct. Furthermore, the Hospital Defendants’ alleged conduct of allowing the broadcast and dissemination of the program by ABC News cannot be actionable by -7- virtue of New York’s “privileged conduct” exception, which insulates from liability conduct in furtherance of the publication of a matter of “public interest.” The First Amendment also protects the broadcast of this newsworthy documentary, insulating all defendants from liability for IIED, arising out of or relating to the broadcast. Both of these causes of action were unanimously dismissed by the Appellate Division, as they should have been. Under the facts alleged here, Appellants’ expressed outrage over the Hospital Defendants’ role in the production of a newsworthy and informative television program, in which events relating to NYP’s effort to save decedent’s life played a very small part, is simply not actionable. This Court should not create new claims or unreasonably expand existing ones beyond their proper scope, particularly in the context of a sui generis case, which resulted in no cognizable harm. As discussed more fully below, the Appellate Division’s order should be affirmed in all respects. -8- STATEMENT OF FACTS This action arises out of the emergency treatment of Mark Chanko, an 83 year-old pedestrian who was brought by ambulance to NYP’s emergency department shortly after midnight on April 29, 2011, after being struck and critically injured by a sanitation truck on a public street in Manhattan. (R. 62).1 Despite the best efforts of NYP’s medical staff to save his life, Mr. Chanko did not survive the massive injuries he sustained in the accident. He died less than an hour after arriving at the hospital. (R. 102-104).2 Appellants include Anita Chanko, decedent’s surviving spouse, who sues in her individual capacity and as executor of his estate, as well as decedent’s children, Kenneth Chanko, Barbara Chanko, Pamela Chanko, and Eric Chanko. (R. 37). NYP’s emergency response to Mr. Chanko’s grave injuries, the efforts of the trauma team to save his life, the disappointment of team members over his demise, and the delivery of the news of his unfortunate death to family members by defendant-respondent Sebastian Schubl, M.D., were the subjects of an approximately two and one-half minute fragment within an hour-long episode of the eight-part “NY Med” television program. That episode aired on ABC 1 References to pages in the Record on Appeal are in the following format: “R.__.” 2 According to the medical records introduced by Appellants in opposition to the Hospital Defendants’ motion to dismiss the Complaint, Mr. Chanko arrived at NYP at 12:23 a.m. on April 29, 2011 (R. 103) and was pronounced dead at 1:17 a.m. (R. 104). -9- television (for the first and only time) on August 21, 2012, some 16 months after the events depicted therein, including Mr. Chanko’s death. (R. 36-37 at ¶¶ 25-27). NY Med was a medical documentary television program produced, filmed, edited, broadcast, televised, and disseminated by ABC News, a division of defendant-respondent ABC. (R. 2 at ¶ 6; 31 at ¶¶ 3-5). As ABC advised the Appellate Division, “ABC News has for more than a decade produced and broadcast medical documentary programs that portray medical treatment at some of the nation’s most prestigious hospitals. These have included programs filmed at Johns Hopkins Hospital in Baltimore (the subject of Hopkins 24/7), Massachusetts General, Brigham and Women’s and Children’s Hospitals in Boston (Boston Med), and most recently New York Presbyterian Hospital here (NY Med).” ABC Brief, Appellate Division, at p. 4. It is undisputed that the Hospital Defendants had nothing to do with choosing what footage was included in the actual broadcast. Decedent’s identity was not revealed in the broadcast video. (R. 7). His face and portions of his body were digitally obscured, and his name was neither displayed nor disclosed.3 In addition, and as noted by the trial court, based on its review of the DVD containing the actual broadcast, none of Mr. Chanko’s family 3 A DVD containing the one-hour episode of NY Med, which included the fragment regarding decedent, was submitted to the trial court by defendant-respondent ABC, in support of that branch of its dismissal motion directed to the fifth cause of action, alleging the intentional infliction of emotional distress. (See R. 31 at ¶ 4; R. 48). -10- members appeared in the broadcast at all, their voices were not heard, their identities were not disclosed, and no details concerning Mr. Chanko’s unfortunate accident were revealed in the broadcast. (R. 7, 48). The broadcast showed defendant-respondent Sebastian Schubl, M.D., entering a room to advise family members of Mr. Chanko’s death, and only Dr. Schubl’s voice is heard informing family members that efforts to save Mr. Chanko’s life were unsuccessful. (R. 7). Afterwards Dr. Schubl is interviewed alone. Id. The Allegations of the Complaint and the Trial Court’s Decision In addition to NYP and ABC, Appellants’ Second Amended Verified Complaint (the “Complaint”) (R. 33-47) named as defendants Sebastian Schubl, M.D., a NYP employee and chief surgical resident; and Anil S. Ranawat, M.D., and Travis Maak, M.D.,4 all of whom were alleged to have been decedent’s “treating physicians.” (R. 36 at ¶ 21). The pleading purported to state five causes of action - all of which were directed indiscriminately against all named defendants. The Hospital Defendants moved to dismiss all claims advanced in the Complaint, pursuant to C.P.L.R. 3211(a) (1) and (7). (R. 50, 51). Appellants’ first cause of action, advanced solely on decedent’s behalf, alleged the violation of sections 50 and 51 of the New York Civil Rights Law. 4 The claims against Drs. Ranawat and Maak, who were not employees of NYP, were dismissed by the trial court, and no appeal was taken from that portion of the order dismissing those claims. (R. 10). -11- (R. 38-39 at ¶ 34). This cause of action was properly dismissed by the trial court in light of Appellants’ concession that the claim abated upon Mr. Chanko’s death. (R. 8). Appellants also conceded that the second cause of action, alleging a common law “invasion of privacy” on behalf of decedent, did not lie and thus was properly dismissed. (R. 40 at ¶ 42; R. 8). Also dismissed was the third cause of action (R. 9), asserted on behalf of all Appellants other than Eric Chanko, and alleging that “[d]efendants’ broadcast and dissemination of [Appellants’] private conversations and images constituted a further invasion of the [Appellants’] and decedent’s right of privacy.” (R. 41 at ¶ 46). Appellants’ fourth cause of action was asserted on behalf of decedent only, and attempted to state a claim arising out of the alleged “disclos[ure]” and “discuss[ion]” of decedent’s “medical condition with cast members of NY MED and allow[ing] them to videotape said conversations and videotape his medical treatment for broadcast and dissemination to the public . . . .” (R. 42 at ¶ 49). In addition to characterizing these pre-broadcast disclosures as an “invasion of [decedent’s] privacy” (R. 42 at ¶ 51), the claim alleges that the disclosures transgressed “physician patient confidentiality” and constituted a violation of unidentified “State and Federal statutes protecting the privacy of medical records and information and violated paragraph 13 of the New York State Patients’ Bill of Rights.” Id. -12- The fifth cause of action was asserted on behalf of all Appellants other than decedent, and attempted to state a claim for the intentional infliction of emotional distress by reason of defendants “allow[ing] and permit[ing] and caus[ing] defendant American Broadcasting Services [sic], Inc. to broadcast and disseminate the videotape . . . .” (R. 43 at ¶ 54). In support of their IIED claim, Appellants allege explicitly that “plaintiffs watched the said videotape on their televisions and were shocked and upset by what they saw.” (R. 43 at ¶ 55). In two orders dated January 15, 2014, and without any legal analysis, the trial court declined to dismiss the fourth and fifth causes of action against the Hospital Defendants. (R. 9, 23). The Appeal to the Appellate Division, First Department The Hospital Defendants appealed to the Appellate Division, First Department from the denial of that portion of the Hospital Defendants’ motion which sought to dismiss the fourth and fifth causes of action. (R. 26-27). By Decision and Order dated November 18, 2014 (R. 252-53) (the “Order”), the Appellate Division “unanimously reversed, on the law” the order of the trial court, and granted, inter alia, the Hospital Defendants’ motion to dismiss. The Complaint was dismissed in its entirety. Id. As to the fifth cause of action alleging IIED, the Appellate Division held that: -13- Defendants’ conduct in producing and televising a show depicting the medical care provided at defendant hospital that included a pixilated image of plaintiffs’ decedent, who was not identified, was not so extreme and outrageous as to support a claim for intentional infliction of emotional distress. (R. 253). In a separate, subsequent paragraph regarding the fourth cause of action, the Appellate Division held: Nor can plaintiffs maintain an action against defendant doctor or defendant hospital for breach of the duty not to disclose personal information, since no such information regarding plaintiffs’ decedent was disclosed (cf. Randi A.J. v Long Is. Surgi-Center, 46 AD3d 74 [2d Dep’t 2007]). Id. Appellants subsequently moved for reargument of the Order, or, in the alternative, for leave to appeal the Order to this Court. By a Decision and Order dated March 24, 2015 (R. 251), the Appellate Division denied reargument, but granted leave to appeal to this Court, pursuant to C.P.L.R. 5713, certifying the following question: “‘Was the order of this Court, which unanimously reversed the order of Supreme Court, properly made?’” Id. The Appellate Division further certified “that its determination was made as a matter of law and not in the exercise of discretion.” Id. This appeal ensued. -14- ARGUMENT POINT I DISMISSAL OF THE FOURTH CAUSE OF ACTION SHOULD BE AFFIRMED A. The Fourth Cause of Action Complains of a Non-Actionable Intrusion on Decedent’s Privacy In support of their effort to resuscitate the fourth cause of action, Appellants assert that “[t]he complaint plainly alleges that the [Hospital Defendants] breached patient confidentiality when they let the television crew into the operating room to film the diagnosis and treatment of [decedent].” (Plaintiffs’-Appellants’ Brief (“App. Br.”) at p. 4) (emphasis added). This echoes the lament of decedent’s estate representative, Anita Chanko, who attests that “[i]t disturbs me that the ABC staff was allowed by my husband’s surgeons to intrude into his room and learn about his medical condition . . . .” (R. 171) (emphasis added). These assertions confirm that at its core, the fourth cause of action seeks redress for an alleged intrusion on decedent’s purported right to privacy. In this state, however, claims for alleged intrusions on an individual’s privacy are not actionable, other than those falling within the limited scope of Civil Rights Law sections 50 and 51. See Messenger v. Gruner + Jahr Printing and Publ’g., 94 N.Y.2d 436, 441 (2000) (“New York does not recognize a common-law right of privacy”); see also Howell v. New York Post Co., 81 N.Y.2d 115, 123 (1993) -15- (“While the courts of other jurisdictions have adopted some or all of these [privacy] torts, in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; we have no common law of privacy . . . .”); Arrington v. New York Times Co., 55 N.Y.2d 433, 440 (1982) (“[I]n this State ‘there exists no so-called common-law right to privacy.’”); Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379, 383 (1984) (“[I]n New York privacy claims are founded solely upon sections 50 and 51 of the Civil Rights Law.”).5 In apparent recognition that decedent’s estate has no viable privacy claim, Appellants strain to characterize the fourth cause of action as one alleging a breach of the doctor-patient duty of confidentiality. This effort is contrary to a recognized distinction between patient privacy and the confidentiality of medical information. According to an ethical opinion of the American Medical Association: . . . [I]t is necessary to distinguish between privacy and confidentiality. Patient privacy refers to the fact that patients are entitled to have only those individuals involved in their medical care examine them or observe their examination. AMA policy dictates that ‘physicians are ethically and legally required to protect the personal privacy and other legal rights of patients. Confidentiality, on the other hand, refers to what happens afterward to information shared in private with the physician. 5 Civil Rights Law sections 50 and 51, which make actionable only the unauthorized use of a living person’s name, portrait, picture, or voice “for advertising purposes, or for the purposes of trade,” constitute a carefully circumscribed exception to the general rule that an alleged invasion of privacy is not actionable in New York. See N.Y. CIVIL RIGHTS LAW §§ 50, 51 (McKinney’s 2015). -16- Resuscitating Privacy in Emergency Settings, AMA J. ETHICS, July 2011, available at http://virtualmentor.ama-assn.org/2001/07/code1-0107.html (emphasis added).6 This distinction makes it evident that in complaining that the ABC News camerapersons were “let . . . into the operating room” (App. Br. at p. 4), Appellants are not alleging the breach of the physician-patient duty of confidentiality (which can give rise to a tort claim under limited circumstances), but rather, a non- actionable invasion of privacy. An analysis of the handful of decisions which have recognized tort claims based on alleged breaches of the patient-physician fiduciary duty of confidentiality further bears out the importance of this distinction. Those cases are concerned with, and make actionable, only circumstances involving “what happens afterward to information shared in private with the physician,” and not the mere presence of non-caregivers during the examination or treatment of a patient. AMA J. ETHICS, supra. Although New York’s evidentiary physician-patient privilege dates back to 1828 (see Dillenbeck v. Hess, 73 N.Y.2d 278, 284 (1989)), a tort claim for breach of the doctor-patient duty of confidentiality was not recognized until 1977. In Doe v. Roe, 93 Misc. 2d 201 (Sup. Ct. N.Y. County 1977), plaintiff wife and her husband had been patients of defendant psychiatrist. Plaintiff commenced an 6 The AMA Journal of Ethics was formerly known as “Virtual Mentor.” -17- action against the psychiatrist and her husband for publishing, without her consent, a book which reported, verbatim, the thoughts, feelings, emotions, and sexual and other fantasies plaintiff had divulged during the course of her psychiatric treatment. Id. at 204. The book was published eight years after plaintiff’s treatment by defendant ended. Id. The Supreme Court awarded damages for the shame and humiliation caused by the publication, and reimbursed plaintiff for an unspecified $1500 “cash loss” related to “[h]er livelihood,” arising out of the publication. Id. at 217-18. In MacDonald v. Clinger, 84 A.D.2d 482 (4th Dep’t 1982), plaintiff’s complaint alleged that during two courses of treatment by defendant-psychiatrist plaintiff revealed intimate details about himself which defendant “later divulged to plaintiff’s wife” without plaintiff’s consent. Id. at 482. As a consequence, plaintiff alleged that his marriage deteriorated, he lost his job, endured financial difficulties, and suffered emotional distress requiring further psychiatric treatment. Id. at 482- 83. The Appellate Division affirmed the trial court’s denial of defendant’s motion to dismiss the breach of confidentiality claim. In Tighe v. Ginsberg, 146 A.D.2d 268 (4th Dep’t 1989), plaintiff complained that defendant physician revealed plaintiff’s severe bilateral hearing loss to his employer, without plaintiff’s knowledge or authorization. Id. at 269-70. After plaintiff’s employment was terminated, he sued, inter alia, for breach of the -18- fiduciary duty of confidentiality, and his complaint alleged that he sustained “emotional and psychological harm” as a result of the unauthorized disclosure of his condition. Id. at 270, 272. This claim was deemed viable. Id. at 272. In Randi A.J. v. Long Island Surgi-Center, 46 A.D.3d 74 (2d Dep’t 2007) plaintiff was a 20 year-old unmarried woman who terminated her pregnancy at defendant’s facility. Id. at 75. She gave specific instructions to defendant never to call her home, where she lived with her parents, but the day after the procedure one of the clinic’s nurses telephoned plaintiff’s home and revealed to plaintiff’s mother that her daughter had an abortion. Id. at 76-78. Defendant conceded liability on plaintiff’s claims and the matter proceeded to a jury on the question of damages. Id. at 78. In Juric v. Bergstraesser, 44 A.D.3d 1186 (3d Dep’t 2007), plaintiff claimed that he suffered “significant emotional damage” when a defendant, a non-treating physician, reviewed plaintiff’s medical records and alerted plaintiff’s wife that she and her child might be in danger. Id. at 1186-87. The Third Department reversed the dismissal of plaintiff’s complaint, noting that it could be construed as alleging a breach of the physician-patient duty of confidentiality. Id. at 1188. In Burton v. Matteliano, 81 A.D.3d 1272 (4th Dep’t 2011) plaintiff sued a physician for revealing, to plaintiff’s employer, without plaintiff’s knowledge or consent, the extent of injuries sustained by plaintiff in a motor vehicle accident, -19- leading to the termination of plaintiff’s employment. Id. at 1273. The Fourth Department upheld plaintiff’s claim for alleged breach of the physician-patient duty of confidentiality. Id. at 1274. Most recently, in Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d 480 (2014), this Court was presented with a question certified by the Second Circuit Court of Appeals, regarding employer liability for the unauthorized disclosure of medical information by a non-physician employee acting outside the scope of her employment. The alleged liability of the defendant-employer was based on an unauthorized disclosure that plaintiff was being treated for a sexually transmitted disease. Specifically, a nurse employed by defendant had accessed plaintiff’s medical records and texted the information to plaintiff’s girlfriend. Id. at 482-83. The common thread running through these decisions is that they all arose from a health care professional’s unauthorized, post-examination or post-treatment revelation of a potentially embarrassing condition or secret, or some other detrimental fact, such as a limitation affecting employment. Indeed, the fostering of full disclosure by patients to physicians, particularly of potentially embarrassing or disgraceful information or conditions, is the principal underpinning of the physician-patient evidentiary privilege codified at C.P.L.R. 4504. See Williams v. Roosevelt Hospital, 66 N.Y.2d 391, 395 (1985) (noting that enactment of the statutory physician-patient evidentiary privilege “was -20- based on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment”) (emphasis added). See also App. Br. at p. 1. The fourth cause of action complains that ABC News camerapersons were provided access during decedent’s emergency treatment, and were thereby exposed to decedent’s medical condition (R. 42, at ¶ 49). The Complaint never alleges or identifies, however, the subsequent disclosure of any potentially embarrassing or sensitive condition, secret, or detrimental fact, of the sort addressed in the foregoing cases. While Appellants’ brief complains of the contemporaneous “disclosure” of decedent’s blood pressure, vital signs, broken pelvis, internal bleeding, cardiac arrest, etc. (App. Br. at pp. 31-33) as that information was being obtained or recorded, none of that “medical information” could remotely be considered embarrassing or sensitive - particularly with respect to an individual who sustained his critical injuries on a public street in New York City. Indeed, Appellants do not seem to consider the allegedly disclosed information to be embarrassing or sensitive at all since, in the first instance they, not defendants, publicly identified the decedent and they, in fact, submitted the entire medical record pertaining to decedent’s treatment at NYP in opposition to -21- the Hospital Defendants’ motion to dismiss, without any effort to seal or restrain public access to those materials. (R. 86-145). Moreover, and quite significantly, Appellants’ brief assiduously avoids discussion of the above-referenced decisions, which define the actual parameters and elements of the tort claim which decedent’s representative asserts has been pleaded as the fourth cause of action.7 Instead, Appellants offer a dissertation on the origins and contours of the evidentiary doctor-patient privilege; a discussion of “what is confidential under [C.P.L.R.] § 4504” (App. Br. at p. 23); a comparison of the scope of physician-patient confidentiality with the attorney-client privilege (id. at p. 24); and finally, a description of the alleged disclosures made here (id. at pp. 28-36), in an effort to demonstrate the viability of the fourth cause of action. Appellants’ purposeful effort to focus this Court’s attention away from the few decisions which have upheld tort claims for breach of the doctor-patient duty of confidentiality is not surprising. Those decisions show that the Appellate Division was correct in dismissing the fourth cause of action, holding that “no such [personal] information regarding plaintiffs’ decedent was disclosed.” (R. 253.) By citing Randi A.J. v. Long Island Surgi-Center (R. 253), the Appellate Division was 7 Appellants cite only two of those decisions, in merely asserting the existence of “a common law right of action for breach of the fiduciary duty to maintain the confidentiality of patient medical information,” Doe, 22 N.Y.3d at 482 and Burton, 81 A.D.3d at 1274 (4th Dep’t 2011), but offer no discussion of the nature or elements of the claims recognized in those cases. (App. Br. at pp. 21-22, 34.) -22- recognizing that, unlike the disclosure of that plaintiff’s abortion, which could (and allegedly did) subject plaintiff to embarrassment or disgrace, the fourth cause of action here alleges the disclosure of no such compromising or injurious information about decedent. Moreover, the disclosure complained of in Randi A.J., like the disclosures in each of the cases reviewed above, occurred after a procedure, treatment, or diagnosis had been performed or made, while the fourth cause of action complains that unauthorized persons may have been privy to real- time discussions among treating physicians simply owing to their presence during examination and treatment. This further demonstrates that the fourth cause of action was properly dismissed. B. The Complaint Fails to Allege that Decedent Sustained Any Harm Resulting From the Alleged Disclosures of His Medical Condition, and the Complaint Explicitly Negates Any Possible Finding of Harm Even if the fourth cause of action were not deemed to assert the infringement of a non-actionable, common law right of privacy, dismissal of the claim was nevertheless appropriate. This is because the operative pleading not only fails to allege one of the required elements of a claim for breach of the doctor-patient duty of confidentiality - injury to plaintiff - but it affirmatively negates any finding of injury to decedent resulting from the alleged disclosure of his “medical information” to ABC News camerapersons. -23- In the absence of harm there can be no actionable tort. “It is only the injury to person or property . . . which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong.” Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300 (1936) (emphasis added). See also Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439, 446 (2013) (“The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state’s tort system.”); Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993) (“[A] tort cause of action cannot accrue until an injury is sustained.”); Kumbar v. Estis, 1 N.Y.2d 399, 403 (1956) (noting “the basic proposition of tort law that no action will lie in negligence” absent injury to plaintiff); Karlsons v. Guerinot, 57 A.D.2d 73, 80 (4th Dep’t 1977) (“It is well settled that the existence of damages is an essential element of any action in tort, and, absent such damages, no suit will lie.”) (citing Simon v. Noma Elec. Corp., 293 N.Y. 171 (1944)). A claim alleging the unauthorized disclosure of medical information is undeniably a tort claim for breach of a physician’s fiduciary duty. See MacDonald v. Clinger, 84 A.D.2d 482, 482 (4th Dep’t 1982) (finding that wrongful disclosure of personal information learned during psychiatric treatment “is a breach of the fiduciary duty of confidentiality and gives rise to a cause of action sounding in tort”); Randi A.J. v. Long Island Surgi-Center, 46 A.D.3d 74, 78 (2d Dep’t 2007) -24- (examining plaintiff’s allegation that unauthorized disclosure of her abortion constituted, inter alia, breach of fiduciary duty). Appellants acknowledge this in their first “Question Presented” to this Court, which asks whether they have “a cause of action for breach of the fiduciary duty to maintain the confidentiality of patient medical information . . . .” (App. Br. at p. vi) (emphasis added). The requirement of alleging and demonstrating harm or injury applies with specific reference to claims for breach of a fiduciary duty. Such claims require, inter alia, the pleading and proof of damages flowing directly from the misconduct constituting the alleged breach. “In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant’s misconduct.” Kurtzman v. Bergstol, 40 A.D.3d 588, 590 (2d Dep’t 2007); see Pokoik v. Pokoik, 115 A.D.3d 428, 429 (1st Dep’t 2014) (“To establish a breach of fiduciary duty, the movant must prove . . . damages directly caused by that party’s misconduct”); Lorie Dehimer Irrevocable Trust, 122 A.D.3d 1352 (4th Dep’t 2014) (same). See also IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 140 (2009) (holding that the cause of action alleging breach of fiduciary duty was “not enforceable until damages are sustained”) (citing Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993)). -25- Indeed, in Doe v. Roe, 93 Misc. 2d 201 (Sup. Ct. N.Y. County 1977), the decision which first recognized a tort claim for breach of the physician-patient duty of confidentiality, the court noted that “[w]hat is important is that there must be the infliction of intentional harm, resulting in damage, without legal excuses or justification.” Id. at 213 (emphasis added). Thus, in Rut v. Young Adult Institute, 74 A.D.3d 776 (2d Dep’t 2010), the Second Department affirmed the dismissal of plaintiff’s claim for breach of fiduciary duty against her late husband’s employer, noting that “[t]he plaintiff did not allege any misconduct by the defendants that caused her to sustain damages. Therefore, she did not state a cause of action sounding in breach of fiduciary duty.” Id. at 777. Unlike the instant Complaint, damages or some degree of harm to plaintiffs were alleged specifically in each of the foregoing decisions upholding tort claims for breach of the doctor-patient fiduciary duty. See Doe, 93 Misc. 2d at 218 (noting that plaintiff had “insomnia and nightmares;” and “became reclusive;” and that her “well-being and emotional health were significantly impaired for three years,” as a consequence of the “shame and humiliation” induced by the unauthorized publication of a book revealing the confidences and secrets she revealed to her psychiatrist); MacDonald v. Clinger, 84 A.D.2d 482, 482-83 (4th Dep’t 1982) (ruling on the claim that defendant’s unauthorized disclosures resulted -26- in the deterioration of plaintiff’s marriage, the loss of his job, financial difficulty, and “severe emotional distress,” requiring further psychiatric treatment); Randi A.J. v. Long Island Surgi-Center, 46 A.D.3d 74, 77-78 (2d Dep’t 2007) (discussing plaintiff’s allegations that unauthorized disclosure of her abortion strained her formerly close familial relationship, leading to permanent emotional pain and psychological harm); Burton v. Matteliano, 81 A.D.3d 1272, 1274 (4th Dep’t 2011) (stating that plaintiff sought pecuniary damages, attributing the termination of his employment to the unauthorized disclosure of his medical condition to his employer); Tighe v. Ginsberg, 146 A.D.2d 268, 272 (4th Dep’t 1989) (noting the “likelihood that, if defendants’ breach of the duty of confidentiality proximately caused plaintiff’s injuries, plaintiff would be entitled to recover for the emotional and psychological harm alleged in the complaint”) (emphasis added); Juric v. Bergstraesser, 44 A.D.3d 1186, 1187 (3d Dep’t 2007) (evaluating plaintiff’s argument alleging “significant emotional damage” and that he was forced to undergo a psychiatric examination as a result of the unauthorized disclosure of medical records to his estranged wife). The obvious import of these decisions, consistent with basic principles of tort law, is that in order to state a viable claim for breach of the physician-patient duty of confidentiality a plaintiff must allege some type of legally-cognizable injury and damages resulting from the purported breach. In contrast, the -27- Complaint here does not allege that decedent sustained any harm whatsoever as a result of the alleged disclosure of his medical condition to ABC News camerapersons.8 In fact, Appellants’ brief confirms the lack of damage or harm arising from the conduct complained of in the fourth cause of action, when it reiterates the contents of Complaint paragraph 28, and declares that “neither [decedent] Mark Chanko nor any of the plaintiffs was aware that the events in the hospital were being filmed.” (App. Br. at p. 6; see also p. 29 (“The amended complaint further alleges that neither patient Mark Chanko, nor his family members, was aware that ABC was recording Mark Chanko’s treatment . . . .”)) Complaint paragraph 28 alleges, in pertinent part: That neither MARK S. CHANKO, deceased nor any of the plaintiffs were aware that they or the events above recited were being recorded . . . . (R. 37 at ¶ 28). 8 Although the Complaint’s prayer for relief includes, with regard to the Fourth Cause of action, a generic reference to “the injuries and loss of [sic] damages sustained by MARK S. CHANKO” (R. 45) this does not constitute an allegation of harm resulting from the disclosures alleged in the Fourth Cause of Action. Planned Consumer Mktg. v. Coats & Clark, 127 A.D.2d 355, 371 (1st Dep’t 1987) (“The prayer for relief in a complaint is not a part of the cause of action . . . .”); Gro-Up Frocks, Inc. v. Manners, 55 A.D.2d 531, 532 (“[T]he demand for relief is not considered part of the statement of the cause of action.”); Mahoney v. Ogden, 6 A.D.2d 711, 712 (2d Dep’t 1958) (“The prayer for relief may be disregarded in determining the sufficiency of a cause of action.”). -28- This allegation - which is assumed to be true on this motion to dismiss (see Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 92 (1993); Nasaba Corp. v. Harfred Realty Corp., 287 N.Y. 290, 294 (1942)) - necessarily forecloses any finding of emotional or psychological harm to decedent as a result of the alleged disclosures, since he was never aware of them before he died. Moreover, decedent could not have sustained any pecuniary harm from those alleged disclosures, because in addition to his unawareness of them, his death during the course of the alleged disclosures (R. 37 at ¶ 26) necessarily precludes any recovery for pecuniary harm to him occurring subsequently. See, e.g., Rose v. Daily Mirror, Inc., 284 N.Y. 335, 337 (1940) (confirming that a cause of action for defamation does not survive death of individual allegedly defamed); Sylvester v. City of New York, 385 F. Supp. 2d 431, 439 (S.D.N.Y. 2005) (“even a descendant cannot bring an action for defamation of a deceased individual”); Pirone v. MacMillan, Inc., 894 F.2d 579, 585 (2d Cir. 1990) (rights of privacy pursuant to Civil Rights Law sections 50 and 51 are “clearly limited to ‘any living person.’”).9 The lack of redressable harm to decedent, based on the undisputed facts alleged in 9 Appellants attempt improperly to expand their Complaint allegation of disclosure to ABC camerapersons (i.e., “cast members”) (see R. 42 at ¶ 49) by now alleging, for the first time, that “ABC personnel beyond the film crew . . . saw the footage.” (App. Br. at p. 33). Even if this allegation had appeared in the Complaint, it would not serve to salvage the fourth cause of action, because review of footage by editors could only have occurred after Mr. Chanko’s unfortunate demise, and the foregoing authorities make clear that no redressable damages could have been sustained by decedent by reason of post-death disclosures of his previous medical condition. -29- the Complaint, as reiterated by Appellants on this appeal, are fatal to the fourth cause of action. C. Reinstating the Fourth Cause of Action Would Open the Floodgates of Litigation Given that the fourth cause of action complains of the presence of non- caregivers during decedent’s examination and treatment, recognition of this tort claim holds the very real possibility of opening the floodgates of litigation from patients complaining that all manner of allegedly unauthorized individuals were permitted to learn of their medical information during the course of examination or treatment in a hospital.10 It is commonplace, for example, for hospital emergency departments, including trauma bays and examination areas, as well as other surgical, operating, patient, and waiting rooms to be frequented by a variety of non-caregivers, including hospital personnel, medical students, other patients and their visitors, vendors, technicians, volunteers, medical device manufacturers’ representatives, contractors, maintenance staff, and clergy. A holding that tort liability may be pursued as a result, for example, of an overheard emergency room or bedside conversation between patient and physician or among physicians; the presence of 10 Properly viewed, it is the presence of non-caregivers about which the fourth cause of action complains, not the activities in which they were engaged, i.e., filming, which are not relevant to that claim. -30- medical students during rounds or treatment; the attendance of a manufacturer’s representative during the insertion or placement of a medical device; the verbally- announced dispensation of an HIV or AIDS drug to a patient in a double- occupancy patient room; or even a momentary glimpse of a patient or monitor when a door is opened or a curtain swept aside - resulting in no redressable injury or harm to the patient - would no doubt result in a deluge of new cases that previously would not have been commenced. This Court long ago noted the need to avoid opening the floodgates of litigation by recognizing claims that would later require endless interpretive line drawing and value judgments. In Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), this Court noted: If such a principle [i.e., a common-law right of privacy] be incorporated into the body of the law through the instrumentality of a court of equity, the attempts to logically apply the principle will necessarily result, not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness but must necessarily embrace as well the publication of a word- picture, a comment upon one’s looks, conduct, domestic relations or habits. * * * I have gone only far enough to barely suggest the vast field of litigation which would necessarily be opened up should this court hold that privacy exists as a legal right -31- enforceable . . . by damages where they seem necessary to give complete relief. Id. at 544-45 (emphasis added). The alternative to the opening of litigation floodgates avoided in Roberson was the subsequent enactment by the legislature of the narrowly-circumscribed Civil Rights Law sections 50 and 51. In Tobin v. Grossman, 24 N.Y.2d 609 (1969), this Court evaluated whether a mother might recover “against a tort-feasor for her own mental and physical injuries caused by shock and fear for her two-year-old child who suffered serious injuries in an automobile accident.” Id. at 611. In affirming the Appellate Division’s dismissal of plaintiff’s claim, this Court noted that the “most difficult factor” in recognizing such a claim would be: [A]ny reasonable circumscription, within tolerable limits required by public policy, of a rule creating liability. Every parent who loses a child or whose child of any age suffers an injury is likely to sustain grievous psychological trauma, with the added risk of consequential physical harm. Any rule based solely on eyewitnessing the accident could stand only until the first case comes along in which the parent is in the immediate vicinity but did not see the accident. Moreover, . . . the logical difficulty of excluding the grandparent, the relatives, or others in loco parentis, and even the conscientious and sensitive caretaker, from a right to recover, if in fact the accident had the grave consequences claimed, raises subtle and elusive hazards in devising a sound rule in this field. -32- Id. at 617 (emphasis added). Thus, this Court concluded that “there appears to be no rational way to limit the scope of liability,” and affirmed the dismissal of plaintiff’s claim. Id. at 618. The same considerations apply here. There are simply too many divergent circumstances which the courts of this state would have to address piecemeal, in order to circumscribe a holding that tort liability may ensue for an alleged disclosure of medical information based on and arising out of the mere presence of non-caregivers in examination and treatment areas.11 The Appellate Division’s dismissal of the fourth cause of action should be affirmed for this reason as well. 11 Contrary to Appellants’ contention that dismissal of the fourth cause of action “augurs ill for the future of medical confidentiality” (App. Br. at p. 21), expansion of the tort of breach of the physician-patient duty of confidentiality to include the circumstances alleged here is not necessary to protect patient confidentiality. A host of existing statutes, rules, and regulations serve precisely that interest - and they are better suited to regulate conduct than this clumsy and ill-defined tort. See, e.g., N.Y. C.P.L.R. §§ 4504(a), 4507, and 4508(a) (McKinney 2015) (evidentiary privileges for patient/client communications with physicians, psychologists, and social workers); N.Y. EDUC. LAW § 6530(23) (McKinney 2015) (defining as “professional misconduct” the revelation of “personally identifiable facts, data, or information” without prior consent); N.Y. MENT. HYG. LAW § 33.13(c) (McKinney 2015) (prohibiting release of information about patients or clients at facilities licensed or operated by the Office of Mental Health or the Office For People With Developmental Disabilities); N.Y. PUB. HEALTH LAW § 2803-c (McKinney 2015) (“[e]very patient shall have the right to have privacy in treatment and in caring for personal needs, confidentiality in the treatment of personal and medical records . . . .”); Id. § 3371 (prohibiting disclosure of a patient’s identity by any person who has knowledge by virtue of his or her office); N.Y. COMP. CODES R. & REGS. tit. 10, § 405.7(b) (2015) (establishing a New York State “Patients’ Bill of Rights”); Id. tit. 14, § 309.5 (requiring specific consent form for disclosure of HIV-related information); Id. § 405.10 (requiring hospitals safeguards to ensure security and confidentiality). See also Pub. L. No. 104-191, 110 U.S. Stat. 1936 [1996] (Health Insurance Portability and Accountability Act of 1996 enacted to set forth “basic national privacy standards”); 42 C.F.R. § 482.13(c)-(d) and § 484.10(d) (hospitals required to protect and promote patient rights of privacy and confidentiality of patient records in order to participate in Medicare and Medicaid programs). -33- POINT II APPELLANTS’ ARGUMENTS CONCERNING THE DVD OFFERED BY ABC AS DOCUMENTARY EVIDENCE PROVIDE NO BASIS TO REVERSE ANY PORTION OF THE ORDER APPEALED FROM At Point II of their brief, Appellants offer a meandering and misguided argument about the purported efficacy of the DVD introduced by defendant ABC in support of its motion for dismissal of the Complaint under C.P.L.R. 3211(a)(1). Appellants do not seem quite certain of the point they are trying to make: “While this edited DVD is not the sort of ‘documentary evidence’ which can provide the basis for dismissal of the complaint . . . it actually supports the allegations of the complaint by showing the breach of confidentiality on the screen.” (App. Br. at p. 30). Appellants are plainly arguing out of both sides of their mouths. In any event, as discussed more fully below, Appellants are mistaken in numerous respects and, at bottom, their argument is premised on their entirely speculative and baseless assertion that the Appellate Division’s dismissal of the fourth cause of action was based entirely on the fact that decedent was unrecognizable in the broadcast, as reflected by the DVD. A. The Authenticated DVD of the Broadcast is “Documentary Evidence” within the Meaning of C.P.L.R. 3211(a)(1), and Was Properly Considered Below Appellants argue that the DVD submitted by ABC does not qualify as “documentary evidence” under C.P.L.R. 3211(a)(1) because it “only” “accurately -34- show[s] what was broadcast on August 21, 2012;” “does not purport to show all that the defendants disclosed to the ABC camera crew;” and is “an edited account.” (App. Br. at pp. 39, 40). Appellants simultaneously concede, however, that the DVD was properly authenticated by ABC, via counsel’s affidavit, which “asserted that the DVD is ‘A true and correct copy of the Broadcast.’” (App. Br. at p. 38, quoting R. 31 at ¶ 4; see also App. Br. at p. 40 (admitting that the DVD was “unambiguous, authentic and undeniable . . . with respect to what was broadcast on August 21, 2012”)).12 Indeed, Appellants do not claim that the DVD is, in any respect, not a true and accurate representation of the actual television broadcast. Cf. Yue Fung USA Enters., Inc. v. Novelty Crystal Corp., 105 A.D.3d 840, 842 (2d Dep’t 2013) (denying C.P.L.R. 3211(a)(1) motion to dismiss where the parties disputed the authenticity of the purported documentary evidence, with each party claiming that its copy of the lease at issue was the authentic one). The mere fact that the DVD introduced by ABC, and relied upon by the Hospital Defendants, might not contain all the raw footage filmed by the ABC News camera crew does not diminish its admissibility as documentary evidence of what it indisputably represents and accurately depicts, i.e., the actual broadcast episode of the NY Med 12 It is well-recognized that on a C.P.L.R. 3211(a)(1) dismissal motion, an attorney’s affidavit or affirmation is “a proper vehicle for the submission of acceptable attachments providing ‘‘evidentiary proof in admissible form’, e.g., documents,’ even though the attorney had no first-hand knowledge of the underlying facts.” Furlender v. Sichenzia Ross Friedman Ference LLP, 79 A.D.3d 470, 470 (1st Dep’t 2010). -35- program at issue. See Solco Plumbing Supply, Inc. v. Hart, 123 A.D.3d 798, 801 (2d Dep’t 2014) (affirming grant of C.P.L.R. 3211(a)(1) motion to dismiss where “the authenticity of the defendant’s documentary evidence . . . is undisputed”). Significantly, neither ABC nor the Hospital Defendants ever maintained or argued - on their original motions to dismiss, at the Appellate Division, or now on this appeal - that the broadcast reflected on that DVD represents the entirety of all footage taken. Equally significant, the Appellate Division did not find that the DVD represents the entirety of all footage taken or all the information concerning decedent’s condition that allegedly was disclosed to ABC News crew members - further demonstrating the irrelevancy of Appellants’ fixation on the DVD as a basis for reversal here. Indeed, the language of the Order, referencing “defendants’ conduct in producing and televising a show,” confirms the Appellate Division’s understanding that what was being considered was not raw footage, but rather a final, edited broadcast product. (R. 253) (emphasis added). There is certainly nothing in the Order which suggests that the Appellate Division misinterpreted the content or import of the DVD in any respect. Thus, the DVD of the broadcast undeniably qualifies as the type of “documentary evidence” that was, and is, admissible on a motion to dismiss under C.P.L.R. 3211(a)(1). See Fontanetta v. John Doe 1, 73 A.D.3d 78, 86 (2d Dep’t 2010) (“[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity”) -36- (citing David D. Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, C.P.L.R. C3211:10, at 21-22). In short, the Appellate Division’s consideration of the DVD was proper and appropriate and provides no basis for reversal of the Order. B. Even If the DVD Does Not Definitively Negate Appellants’ Purported Claim for Breach of Confidentiality, That Is Not a Basis to Reverse Dismissal of That Claim Appellants assert also that the Appellate Division’s dismissal of the fourth cause of action must be reversed because the DVD does not conclusively negate that claim. (App. Br. at pp. 41-42.) This argument is predicated on a complete fallacy, namely that the Appellate Division somehow dismissed the fourth cause of action on the basis of the contents of the DVD, and specifically its depiction of decedent’s pixilated and unrecognizable image. (App. Br. at p. 4) (“The Appellate Division [determined] that there was no breach because the television program later broadcast to the public concealed the identity of the patient . . . .). The error of this contention is demonstrated throughout the Record. In the first place, the content of the Order undermines this assertion. It references the “pixilated image” of decedent only in the paragraph which addresses the fifth cause of action, i.e., the claim for IIED. (R. 253). No reference to the broadcast or the digitally-obscured image of decedent appears in the subsequent paragraph, addressing the fourth cause of action, which, in its entirety, reads as -37- follows: “Nor can plaintiffs maintain an action against defendant doctor or defendant hospital for breach of the duty not to disclose personal information, since no such information regarding plaintiffs’ decedent was disclosed (cf. Randi A.J. v Long Is. Surgi-Center, 46 AD3d 74 [2d Dept 2007]).” (R. 253). Moreover, Appellants’ contention depends upon the supposition that the Appellate Division was somehow unaware that the fourth cause of action is predicated on alleged pre-broadcast disclosures to the ABC News camera crew. There is no basis for that view. In fact, it is undermined by Appellants’ own assertion to the Appellate Division that “[t]he camera crew knew and saw what should have been confidential to the patient and his physician.” (Plaintiffs- Respondents’ Brief to Appellate Division, at p. 11), and by the Hospital Defendants’ assertion that “[t]he Fourth Cause of action seeks . . . damages for the presence of ABC News personnel during the emergency examination and treatment of Mr. Chanko.” (Hospital Defendants’ Reply Brief to Appellate Division, at p. 1). In addition, the context in which the DVD was introduced to the trial court by ABC, and relied on by the Hospital Defendants, undermines Appellants’ contention. The DVD was introduced by ABC in support of its motion to dismiss the fifth cause of action, alleging IIED by reason of the “broadcast and dissemination” of the video, not with regard to the fourth cause of action, alleging -38- a pre-broadcast violation of the doctor-patient duty of confidentiality.13 Surely the Appellate Division did not overlook this, and mistakenly rely on the DVD to dismiss the fourth cause of action, as Appellants contend.14 Finally, the Hospital Defendants have never before argued, nor do they do so now, that the DVD of the broadcast conclusively negates the fourth cause of action - indeed, it would make no sense to do so, since unlike the fifth cause of action, that claim does not purport to be predicated on the “broadcast and disseminat[ion]” of the video. (See R. 43 at ¶ 54). As the arguments at Point I, supra, make clear, dismissal of the fourth cause of action was appropriate, irrespective of the content of the DVD. Based on the foregoing, this Court should hold that the DVD was properly before the trial court on the motion to dismiss under C.P.L.R. 3211(a)(1), and that 13 As Appellants concede throughout their brief, and as is confirmed by the operative pleading, the fourth cause of action is not premised on the broadcast at all; instead, it is based entirely on the alleged disclosure of information to ABC news camerapersons who were present during decedent’s examination and treatment. (See App. Br. at first “Question Presented,” and pp. 1, 3, 29-30, 41-42; R. 43 at ¶ 54) (alleging on page 29 that “defendants’ [sic] . . . disclosed and discussed [decedent’s] medical condition with cast members of NY MED and allowed them to videotape said conversations and videotape his medical treatment”). 14 Curiously, Appellants do not argue explicitly that the Appellate Division relied improperly on the DVD to dismiss the fifth cause of action, even though that court explicitly relied on decedent’s “pixilated image” on the DVD as the basis for dismissing that claim. (R. 253). The Hospital Defendants therefore do not address here the relevance of the DVD to the fifth cause of action and/or the Appellate Division’s evident reliance on that DVD to dismiss that claim. -39- neither its admission and acceptance on that motion nor its content provides any basis for reversal of the Order. POINT III DISMISSAL OF THE FIFTH CAUSE OF ACTION, ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, SHOULD BE AFFIRMED A. As a Matter of Law, the Hospital Defendants’ Purported Actions Do Not Meet the Definition of “Extreme and Outrageous” Conduct The fifth cause of action, brought on behalf of all Appellants other than decedent, attempts to state a claim for IIED, by alleging that “defendants without the knowledge, permission, or consent of the family or the Executor of the Estate of Mark S. Chanko, deceased allowed and permitted and caused defendant American Broadcasting Services [sic], Inc. to broadcast and disseminate the videotape of the final moments of his life and the moment of his death.” (R. 43 at ¶ 54) (emphasis added). It alleges further “[t]hat plaintiffs watched the said videotape on their televisions and were shocked and upset by what they saw.” (R. 43 at ¶ 55) (emphasis added). These allegations demonstrate that this cause of action arises exclusively out of the actual television broadcast of the NY Med episode depicting the unidentified decedent and the Chanko family’s viewing of same. (R. 43). Apparently recognizing that the Hospital Defendants are not responsible for the broadcast and dissemination of the NY Med program, Appellants now -40- drastically change course, and allege, for the first time, that the conduct giving rise to their IIED claim against these defendants is the “secret[] record[ing]” of Dr. Schubl’s advice to decedent’s family members that Mr. Chanko had died. (App. Br. at pp. 43-44). This assertion is as unavailing as it is unpreserved for this appeal, because neither the broadcast and dissemination of the NY Med program nor the recording of Dr. Schubl’s advice to family members comes close to constituting the sort of conduct which could support a claim for IIED. It is axiomatic that one of the requisite elements of an IIED claim is that the conduct complained of must be “extreme and outrageous.” Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143 (1985). This Court has set an extraordinarily high standard for “extreme and outrageous” conduct, and has commented repeatedly that “the requirements of the rule are rigorous, and difficult to satisfy.” Howell, 81 N.Y.2d at 122 (internal quotation marks omitted); Conboy v. AT&T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quoting Stuto v. Fleishman, 164 F.3d 820, 828 (2d Cir. 1999). As this Court noted in Howell, “of the intentional infliction of emotional distress claims considered by this Court, everyone has failed because the alleged conduct was not sufficiently outrageous.” Howell, 81 N.Y.2d at 122. Thus, a claim for IIED “has only been found where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be -41- regarded as atrocious, and utterly intolerable in a civilized community. Conboy, 241 F.3d at 258. Appellants argue that “[t]his is such a case,” but even the decisions they cite do not support that conclusion. (App. Br. at p. 43); see Howell, 181 N.Y.2d at 122 (newspaper’s publication of a recognizable photograph of patient walking on grounds of private psychiatric hospital with fellow patient whose mental and physical rehabilitation was not grounds for claim of IIED); see also Murphy v. Am. Home Prod. Corp., 58 N.Y.2d 293, 303 (1983) (allegation by employee that he was discharged because he brought to the attention of corporate officers certain accounting improprieties did not state a cause of action for IIED). Appellants’ half-hearted attempt to draw a comparison between the instant matter and the circumstances presented in Sawicka v. Catena, 79 A.D.3d 848 (2d Dep’t 2010), falls flat. In Sawicka, a male employer’s installation of a hidden video camera in the company’s restroom to surreptitiously record and view female employees while they used the restrooms was deemed sufficiently extreme and outrageous to be actionable as IIED. Id. at 850. As conceded by Appellants, however, “the instant case does not have the same element of sexual voyeurism as Sawicka” (App. Br. at p. 44), which no doubt is what made the conduct at issue in Sawicka extreme and outrageous. The underlying purpose of the recording in this matter, i.e., the production of a newsworthy documentary to educate the public -42- regarding the operation of a world-class medical center in New York City, is in no way comparable to the prurient motivation underlying the misconduct in Sawicka. Likewise, Appellants’ reliance on Roach v. Stern, 252 A.D.2d 488 (2d Dep’t 1998) is misguided. In Roach, the Second Department noted that what was potentially actionable as IIED was not “comments on cremated remains,” as Appellants here assert (App. Br. at p. 44 (emphasis added)), but instead “the manner in which [decedent]’s remains were handled” on the air, which included “shock jock” Howard Stern tossing around the deceased’s remains and simulating ingestion of her remains, all of which was done “against the express wishes of [decedent’s] family.” Roach, 252 A.D.2d at 492. Here, there is absolutely no allegation that decedent was mishandled, mocked, or defiled in any respect. All that is depicted in the broadcast are the Hospital Defendants’ concerted efforts to save decedent’s life and an expression of remorse by Dr. Schubl, after those efforts proved unsuccessful. This can hardly be compared to the gratuitous mistreatment of the decedent’s remains in Roach, in direct contravention of decedent’s family members’ explicit wishes. Numerous other decisions have refused to find that all manner of troubling or egregious conduct is sufficiently “extreme and outrageous” to state a claim for IIED. In Stella v. Nassau, 71 A.D.3d 573 (1st Dep’t 2010), Appellants alleged that defendants illegally evicted them from their home, ransacked their possessions, -43- prevented them from removing their property, and videotaped the proceedings, among other things. Id. at 574. The First Department held that “[s]uch conduct, even if it occurred, does not, as a matter of law, constitute sufficient grounds for intentional infliction of emotional distress, which requires acts or omissions so extreme in degree and outrageous in character as to exceed all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.” Id. Establishing the requisite outrageousness has proven difficult even in cases, unlike the instant matter, where wrongful intent was apparent. In Anderson v. Abodeen, 29 A.D.3d 431 (1st Dep’t 2006), plaintiff’s allegation that his supervisor maliciously displayed nude photographs of plaintiff to his coworkers in an effort to ridicule and harass him were offensive, but did not show conduct sufficiently outrageous to support a claim for intentional infliction of emotional distress. Id. at 432; see also Seltzer v. Bayer, 272 A.D.2d 263, 264-65 (1st Dep’t 2000) (finding that allegations that defendant dumped a pile of cement on the sidewalk in front of plaintiff’s house, tossed lighted cigarettes into plaintiff’s backyard, threw eggs on his front steps, and threatened to paint a swastika on his house did not rise to the requisite level of outrageousness). Although conduct may be considered deplorable, it nevertheless might not “rise to a level which would satisfy the ‘extreme and outrageous conduct’ element -44- of the cause of action.” Andrews v. Bruk, 220 A.D.2d 376, 377 (2d Dep’t 1995). In Andrews, plaintiff’s hospital medical records were used without his consent by defendant, a non-treating staff physician at the hospital, in connection with the physician’s divorce proceedings, to demonstrate that his wife was having an affair with plaintiff. Id. at 376. The Second Department held that the conduct was not sufficiently extreme and outrageous to support an IIED claim, and noted that “‘[n]ot every deplorable act . . . is redressable in damages.’” Id. at 377 (quoting Madden v. Creative Servs., 84 N.Y.2d 738, 746 (1995)). Even where sensitive or confidential information was published or broadcast, courts have declined to uphold claims for IIED. In Doe v. Am. Broad. Co., 152 A.D.2d 482 (1st Dep’t 1989), defendants produced a special report on rape and assured rape victims who were interviewed that neither their faces nor their voices would be recognizable in the television broadcast. Id. at 483. In an advertisement for the program prior to the actual broadcast, plaintiffs were recognized by multiple individuals. Id. Plaintiffs complained to defendants and defendants assured plaintiffs that they would not be identifiable in the future broadcast. Id. at 484. Despite such assurances, plaintiffs were recognizable in the broadcast program, including a clip where one plaintiff’s face was entirely visible and no effort was made to disguise plaintiffs’ voices. Id. The First Department nevertheless found, as a matter of law, that defendants’ actions “did not constitute -45- the intentional, deliberate and outrageous conduct necessary” to support a claim for IIED, and the appeal to this Court was dismissed without an opinion. Id. at 483 (dismissing appeal without opinion). Likewise, in Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116 (S.D.N.Y. May 29, 1991), plaintiff alleged that she was filmed in the opening scene of a motion picture produced by defendants, soliciting for prostitution. Id. at 118. Plaintiff alleged that defendants intentionally and surreptitiously filmed her, causing her mental anguish and emotional distress. Id. Despite such allegations, the district court dismissed the claim, applying New York law and holding that “[m]erely publicizing private, personal facts does not amount to such a claim.” Id. at 120. Unlike the defendants in Preston, here ABC News made efforts to protect the identities of the Appellants prior to broadcast by obscuring the identity of Mr. Chanko and by not identifying or depicting any of the other Appellants in the broadcast. (R. 7). Under these circumstances, there is no way the broadcast at issue here could be deemed sufficiently extreme and outrageous to state a claim for IIED. Recently, in Foster v. Svenson, 128 A.D.3d 150 (1st Dep’t 2015), the First Department dismissed plaintiffs’ claim for IIED where the defendant, a critically acclaimed fine art photographer, surreptitiously photographed the plaintiffs, -46- including children, who were residents in a neighboring building, and later displayed such photos at an exhibition. Id. at 163. The court reasoned that “while one can argue that defendant’s actions were more offensive than those of the defendant in Howell, because the intrusion here was into plaintiffs’ home, clearly an even more private space, they certainly do not rise to the level of ‘atrocious, indecent and utterly despicable.’” Id. at 162-63 (emphasis added). As the foregoing cases demonstrate unequivocally, allowing or permitting ABC News to broadcast and disseminate a newsworthy documentary program concerning the operation of a world-class medical center in New York City is not, as a matter of law, “extreme and outrageous” conduct sufficient to support a claim for IIED against the Hospital Defendants. This is especially true where only a brief segment of the NY Med program concerned the treatment and death of Mr. Chanko, who was unidentified, and ABC News made efforts to safeguard the identity of all Appellants, including by the pixilation of decedent in the broadcast. Accordingly, the Appellate Division was correct in holding that, as a matter of law, the Hospital Defendants’ alleged conduct of “allow[ing] and permit[ing] and caus[ing] defendant American Broadcasting Services [sic], Inc. to broadcast and disseminate” the footage concerning the treatment of Mr. Chanko “was not so extreme and outrageous as to support a claim for intentional infliction of emotional distress.” (R. 253). That holding should be affirmed. -47- In addition, even if this Court were to entertain Appellants’ newly-minted contention that their IIED claim is also predicated on the allegedly surreptitious recording of Dr. Schubl’s “report to [decedent’s] family members,” that conduct is also not sufficiently extreme and outrageous to support a claim. (App. Br. at p. 44). Notably, Appellants offer nothing more than their ipse dixit assertions that this alleged conduct is “shocking” and that it “cannot be said as a matter of law that the conduct of the doctor and hospital here is not outrageous and beyond our sense of decency.” Id. To the contrary, under the relevant decisions discussed above, the alleged recording of discussions with family members is insufficient, as a matter of law, to meet the threshold of “extreme and outrageous” conduct required to state a cause of action for IIED. This also supports affirmance of the dismissal of the fifth cause of action as against the Hospital Defendants. B. The Conduct Alleged in Support of the Fifth Cause of Action Was Not Directed at Appellants nor Was It Intended to Cause Emotional Harm Appellants’ claim for IIED also fails because the conduct at issue, i.e., “allow[ing] and permit[ting] and caus[ing ABC News] to broadcast and disseminate” the NY Med program, was not specifically directed at any of the Appellants, and was not intended to inflict upon them emotional harm. (R. 43 at ¶ 54). To sustain a claim for IIED the alleged “conduct must . . . be intentionally directed at the plaintiff and lack any reasonable justification.” Martin v. Citibank, -48- N.A., 762 F.2d 121, 220 (2d Cir. 1985) (emphasis added); Smukler v. 12 Lofts Realty, Inc., 156 A.D.2d 161, 163 (1st Dep’t 1989); Semper v. New York Methodist Hosp., 786 F. Supp. 2d 566, 588 (E.D.N.Y. 2011) (dismissing claim where complaint did not plead facts indicating that defendants’ acts were purposefully directed at the plaintiffs); Green v. Leibowitz, 118 A.D.2d 756, 757 (2d Dep’t 1986) (“The gravamen of a cause of action of intentional infliction of emotional distress is that the conduct complained of ‘is especially calculated to cause, and does cause, mental distress of a very serious kind.’”) (emphasis added) (citation omitted). The segment of the broadcast at issue was neither directed at the decedent nor his family. To the contrary, the NY Med program was directed at a national television audience interested in watching a documentary about the workings of a world-class medical center. There was absolutely no intent on the part of the Hospital Defendants to expose or inflict upon the patient or his family any modicum of distress, as demonstrated by the explicit measures taken to conceal the identities of Appellants in the broadcast. See Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116, 120-21 (S.D.N.Y. 1991) (determining that where a “defendant’s primary purpose was to advance its own business interests, and any conduct that harmed plaintiff was incidental, defendant has not committed the New York tort of intentional infliction of emotional distress”) (citation omitted); see -49- also Fleischer v. NYP Holdings, Inc., 104 A.D.3d 536, 539 (1st Dep’t 2013) (affirming the dismissal of an intentional infliction of emotional distress claim where “the record undermines any allegation that the challenged articles and postings were published solely for malevolent purposes”). Additionally, courts have noted their “reluct[ance] to allow recovery . . . absent a ‘deliberate and malicious campaign of harassment or intimidation.’” Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332, 332 (1st Dep’t 1998); Roberts v. Pollack, 92 A.D.2d 440, 447-48 (1st Dep’t 1983) (requiring that “severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation”); Seltzer v. Bayer, 272 A.D.2d 263, 264-65 (1st Dep’t 2000) (“Those few claims of intentional infliction of emotional distress that have been upheld by this court were supported by allegations detailing a longstanding campaign of deliberate, systematic and malicious harassment of the plaintiff.”); Warner v. Druckier, 266 A.D.2d 2, 3 (1st Dep’t 1999) (examining allegations that defendants deliberately, systematically and maliciously harassed plaintiff over a period of years properly stated a cause of action for intentional infliction of emotional distress); Shannon v. MTA Metro-N. R.R., 269 A.D.2d 218, 219 (1st Dep’t 2000) (holding that defendants’ pattern of harassment, intimidation, humiliation and abuse, over a period of years, were sufficient to support a cause of action for intentional infliction of emotional -50- distress). Here, Appellants have not alleged, nor could they allege, that the Hospital Defendants engaged in any “deliberate and malicious campaign” directed at the decedent or his family members. Cohn-Frankel, 246 A.D.2d at 332. C. The Conduct Alleged in Support of the Fifth Cause of Action Is Privileged under New York Law and Protected by the Free Speech Guarantees of the First Amendment Even if this Court were to hold that the conduct alleged in the fifth cause of action could be deemed sufficiently “extreme and outrageous” to state an IIED claim, dismissal was nevertheless appropriate because the subject matter of the NY Med news documentary program is a matter of public concern, and thus insulated by New York’s “privileged conduct” or “newsworthy” exception to tort liability. Under New York law, any program that relates to “matters of public interest” is privileged, and thus insulated from an IIED claim. Howell v. New York Post Co., 81 N.Y.2d 115, 123 (1993). In Howell, the New York Post published a photograph of the plaintiff, a patient at a private psychiatric facility, without her consent. Id. at 118. The photograph showed the plaintiff walking with Hedda Nussbaum, a fellow patient, who had been arrested in a widely publicized child abuse case. Id. Plaintiff predicated her IIED claim on the fact that her hospitalization was a secret from all but her immediate family, and the publication of the photograph, in which she was recognizable, caused her to experience emotional distress and humiliation. Id. at 119. As explained by this Court, “[t]he -51- core of plaintiff’s grievance is that, by publishing her photograph, defendants revealed to her friends, family and business associates that she was undergoing psychiatric treatment - a personal fact she took pains to keep confidential.” Id. at 124. This Court affirmed the dismissal of plaintiff’s IIED claim, finding that the use of a photograph illustrating an article on a matter of public interest, i.e., the whereabouts of Hedda Nussbaum, was an act within contemplation of the “privileged-conduct” exception. Id. at 126; see also Sarwer v. Conde Nast Publ’ns, Inc., 237 A.D.2d 191, 191-92 (1st Dep’t 1997) (deciding that publication of an article regarding child abuse was within the sphere of legitimate public concern and thus privileged). Newsworthiness is broadly construed. Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436, 441 (2000); see also Lemerond v. Twentieth Century Fox Film Corp., No. 07 Civ. 4635(LAP), 2008 WL 918579, at *2 (S.D.N.Y. Mar. 31, 2008) (commenting that under New York law public interest and newsworthiness “have been defined in [the] most liberal and far reaching terms”) (internal quotation marks omitted). Therefore, matters of public interest include not only “current news items, both informative and entertaining, but also such items which, although not strictly news, are designed to be informative.” Delan v. CBS, Inc., 91 A.D.2d 255, 259 (2d Dep’t 1983); see Stephano v. News Grp. Publ’ns, 64 N.Y.2d 174, 184 (1984) (“The newsworthiness exception applies not -52- only to reports of political happenings and social trends, but also to news stories and articles of consumer interest including developments in the fashion world.”). In fact, New York courts have recognized that pure entertainment programs like Saturday Night Live, on the one hand, and traditional news broadcasts on the other hand, are equally capable of presenting “matters of public interest,” and are insulated accordingly from tort liability. See Walter v. NBC Television Network, Inc., 27 A.D.3d 1069, 1070-71 (4th Dep’t 2006) (holding use of plaintiff’s unflattering photograph in “headlines” segment of Jay Leno show to be sufficiently humorous so as to constitute an item of public interest or newsworthiness); Abdelrazig v. Essence Commc’ns., 225 A.D.2d 498, 498 (1st Dep’t 1996) (concluding that use of picture of plaintiff in African garb to illustrate fashion trends in the black community held to be newsworthy); Frank v. Nat’l Broad. Co., 119 A.D.2d 252, 256 (2d Dep’t 1986) (determining that use of plaintiff’s name for a comedic skit on “Saturday Night Live” was not actionable); Creel v. Crown Publ’g, 115 A.D.2d 414, 415-16 (1st Dep’t 1985) (deciding that use of plaintiff’s picture to illustrate guide to nude beaches fell “outside the protection of the Civil Rights Law” because “where nude bathing is permitted is a matter of some public interest”); Alfano v. NGHT, Inc., 623 F. Supp. 2d 355, 359 (E.D.N.Y. 2009) (finding use of plaintiff’s image in a docudrama about organized crime to be a matter of public interest); Dominguez v. Vibe Magazine, No. 112004/07, 2008 WL -53- 4725379, at *4 (Sup. Ct. N.Y. County Sept. 15, 2008) (holding that use of topless picture of plaintiff in mermaid outfit at party for rap star was non-actionable). Moreover, the publication or broadcast of confidential information does not bar the application of the privilege so long as it involves a matter of public interest. In Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985), plaintiff sought damages from the publisher of a newspaper that ran articles relating to plaintiff’s matrimonial action, the facts of which were obtained from confidential court records. Id. at 137. This Court held defendant’s conduct to be privileged because the newsworthy content of the articles constituted sufficient justification for their publication and, therefore, dismissed plaintiff’s claim for IIED. Id. at 143. Here, the NY Med program, of which the segment regarding Mr. Chanko’s treatment was a very small part, documented the workings and cutting edge issues faced by a world-class medical center in New York City. There can be no doubt that the program implicated matters of public interest and is therefore privileged as a matter of law. Thus, any role allegedly played by the Hospital Defendants to facilitate the production and/or broadcast of the NY Med series, was privileged conduct and, therefore, not actionable as IIED. In addition to being subject to New York’s privileged conduct exception, the NY Med documentary series constitutes speech protected by the First Amendment to the United States Constitution. Most appropriate for consideration in this matter -54- is Snyder v. Phelps, 562 U.S. 443 (2011). In Snyder, members of the Westboro Baptist Church picketed at the funeral of Cpl. Matthew Snyder, a U.S. serviceman killed in the line of duty, displaying signs with messages advancing the church’s belief that God hates the United States for its tolerance of homosexuality. Id. at 448. The signs were offensive and hateful, including “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” “You’re Going to Hell,” and “God Hates You,” among others. Id. Matthew Snyder’s father sued the picketers, claiming IIED. Id. at 449. In vacating a jury verdict imposing liability upon defendants (id. at 458-59), the Supreme Court stated that: Whether the First Amendment prohibits holding [defendants] liable for its speech in this case turns largely on whether that speech is of public or private concern . . . . ‘[S]peech on ‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’’ Id. at 451. The court aptly defined and described matters of public concern: Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ The arguably ‘inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’ Id. at 453 (emphasis added); see also Dongguk Univ. v. Yale Univ., 734 F.3d 113, 127 (2d Cir. 2013) (same); Bartnicki v. Vopper, 532 U.S. 514, 534-35 (2001). -55- It cannot reasonably be denied that the functioning of NYP, and the professional challenges faced by its medical and other staff members, are matters of significant interest to the community of patients, potential patients, physicians, healthcare workers, and their friends and relatives in New York City and across the country. Therefore, the First Amendment insulates the Hospital Defendants from liability for IIED arising out of defendant ABC’s broadcast of the NY Med documentary series filmed at NYP. This too supports dismissal of the fifth cause of action as against the Hospital Defendants.15 15 Even if this Court were to hold that the “privileged conduct” exception and First Amendment immunity apply only to media organizations which are directly responsible for broadcasting and dissemination, since it is undeniable that ABC is immune from liability under these doctrines, and the basis of the claim against the Hospital Defendants is that they “allowed and permitted and caused” ABC to broadcast and disseminate the NY Med program (see R. 43 at ¶ 54), the Hospital Defendants necessarily could not be liable. See Kagan v. HMC-New York, Inc., 94 A.D.3d 67, 73 (1st Dep’t 2012) (“[I]n the absence of a viable claim for breach of fiduciary duty, the related claims of aiding and abetting such a breach were also properly dismissed.”); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57 (holding that where there was no independent tort to provide a basis for liability under the aiding and abetting theory, such cause of action must also fail). CONCLUSION For the foregoing reasons, the Order of the Appellate Division should be affirmed, in its entirety. Dated: August 7, 2015 On the brief: Christopher J. Porzio Michelle Yuen Respectfully submitted, NIXON PEABODY LLP <:Jfy: (~ :e ~ - Michael S. Cohen 50 Jericho Quadrangle Suite 300 Jericho, New York 11753 (516) 832-7500 Attorneys for Defendants-Respondents The New York and Presbyterian Hospital and Sebastian Schub!, MD. -56-