Anita Chanko,, et al., Appellants,v.American Broadcasting Companies Inc., et al., Respondents, Anil S. Ranawat, et al., Defendants.BriefN.Y.February 18, 2016APL-2015-00086 New York County Clerk’s Index No. 152552/13 Court of Appeals 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. >> >> REPLY BRIEF FOR PLAINTIFFS-APPELLANTS LAW OFFICES OF MARK J. FOX Attorneys for Plaintiffs-Appellants 111 East 35th Street New York, New York 10016 212-685-5015 By: NORMAN A. OLCH Appellate Counsel 233 Broadway, Room 705 New York, New York 10279 Ph: 212-964-6171 Fx: 212-964-7634Date Completed: August 24, 2015 To Be Argued By: Norman A. Olch Time Requested: 20 Minutes TABLE OF CONTENTS Table of Authorities ii..................................... Introduction 1.............................................. .......... 2........ ................13 ........... 21...... Conclusion 25............................................... i POINT I THE HOSPITAL AND THE DOCTOR INVITE THE COURT TO UPHOLD THE DISMISSAL OF THE COMPLAINT BECAUSE IT ASSERTS A CAUSE OF ACTION FOR “PRIVACY”--A CLAIM NOT ACTUALLY ALLEGED IN THE COMPLAINT, AND ON THE BASIS OF THEORIES OF “CONTEMPORANEOUS” MEDICAL CONFIDENTIALITY AND “EMBARRASSING” CONFIDENTIALITY WHICH HAVE NO BASIS IN LAW OR IN COMMON SENSE. POINT II ABC’s SURMISE AND SPECULATION DOES NOT REFUTE THE TRUTH OF THE ALLEGATIONS OF THE COMPLAINT. POINT III THE EDITED VIDEO CANNOT PROVIDE THE BASIS FOR DISMISSAL OF THE COMPLAINT. Table of Authorities Cases: Anderson v. Strong Memorial Hospital, 151 Misc.2d 353 (Sup. Ct. Monroe Co. 1991) 17.............. Carey v. Piphus, 435 U.S. 247 (1978) 11................... Dana v. Oak Park Marina, 230 A.D.2d 204 (4th Dept. 1997) 20......................... Davis v. Supreme Lodge Knights of Honor, 165 N.Y. 159 (1900) 18..................................... Dillenbeck v. Hess, 73 N.Y.2d 278 (1989) 8, 18, 19.......... Doe v. Community Health Plan, 268 A.D.2d 183 (3rd Dept. 2000) 10......................................... Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d 480 (2014) 20........ Galella v. Onassis, 487 F.2d 986 (2nd Cir. 1973) 16......... Howell v. New York Post Co., Inc., 81 N.Y.2d 115 (1993) 20, 21................................ Kennedy v. McKesson Co., 58 N.Y.2d 500 (1983) 12............ Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90 (1993) 10, 11....... Leon v. Martinez, 84 N.Y.2d 83 (1994) 3, 20................. People v. Patterson, 93 N.Y.2d 80 (1999) 22................. Phillips v. New York Daily News, 111 A.D.3d 420 (1st Dept. 2013) 18......................... Randi v. Long Island Surgi-Center, 46 A.D.3d 74 [2nd Dept. 2007] 18........................... Sega v. State of New York, 60 N.Y.2d 183 (1983) 21.......... Shiffman v. Empire Blue Cross and Blue Shield, 256 A.D.2d 131 (1st Dept. 1998) 16......................... ii Swidler & Berlin v. United States, 524 U.S. 399 (1998) 11... Weiss v. Miller, 166 A.D.2d 283 (1st Dept. 1990), aff’d, 78 N.Y.2d 979 (1991) 11............................. Zegarelli v. Hughes, 3 N.Y.3d 64 (2004) 22.................. Other: ACEP Policy on Commercial Filming of Patients in Emergency Department 12..................................... CPLR § 3211(a)(1) 21........................................ CPLR § 3211(a)(7) 3, 20..................................... CPLR § 4504(a) 7, 9......................................... iii Introduction In its brief, a world-class medical institution seeks to untether itself from the physician-patient confidential relationship by maintaining that without patient approval it can make “contemporaneous” or real-time disclosure of confidential medical information to nonmedical personnel; that it can disclose confidential medical information that is not “embarrassing” to the patient; that it already permits large numbers of nonmedical personnel to hospital areas containing confidential patient information; and that it can disclose to the press confidential medical information which is “newsworthy.” These bold assertions will undoubtedly come as a shock to the celebrated and uncelebrated patients treated at this hospital. In a court of law they serve to reinforce the appellants' point that affirmance of the order on appeal "augurs ill for the future of medical confidentiality." App. Br. 21. As it has for the last 140 years, this Court should reject these efforts to drain medical confidentiality of any real meaning. The order on appeal should be reversed. 1 POINT I THE HOSPITAL AND THE DOCTOR INVITE THE COURT TO UPHOLD THE DISMISSAL OF THE COMPLAINT BECAUSE IT ASSERTS A CAUSE OF ACTION FOR “PRIVACY”--A CLAIM NOT ACTUALLY ALLEGED IN THE COMPLAINT, AND ON THE BASIS OF THEORIES OF “CONTEMPORANEOUS” MEDICAL CONFIDENTIALITY AND “EMBARRASSING” CONFIDENTIALITY WHICH HAVE NO BASIS IN LAW OR IN COMMON SENSE. New York and Presbyterian Hospital (“the hospital”) and Dr. Sebastian Schubl (“the doctor”) do not dispute that the matters they permitted the television crew to film and record in the emergency and operating rooms, without the consent of the patient, are, under 140 years of decisions by this Court, confidential and privileged information necessary for the hospital and doctor to treat the patient: the doctor’s expert diagnosis of the patient’s condition, the doctor’s expert proposed course of treatment, and the diagnostic equipment reporting on the patient’s condition. Faced with the uncomfortable fact that they breached their duty to maintain the confidentiality of patient medical information, hospital and doctor seek to skirt the issue by maintaining that the complaint does not allege a breach of confidentiality--which is actionable in New York--but instead alleges a violation of privacy--which is not actionable in New York. 2 Respondents execute this sleight-of-hand in two steps. First, they avoid any discussion of the actual words of the amended complaint, and second, they take one sentence from appellants’ brief, underscore the introductory phrase of the sentence, and eliminate from consideration the balance of the sentence. The Appellate Division correctly read the plain words of the amended complaint as alleging a violation of physician- patient confidentiality. (R.252). Respondents’ wholesale distortion of appellants’ claims should be rejected. A. The Words of the Amended Complaint This appeal concerns a motion to dismiss a complaint for failure to state a cause of action. CPLR § 3211(a)(7). It is by now axiomatic that when addressing such a motion a court must assume the truth of the allegations in the complaint, and draw all inferences in favor of the pleader. Leon v. Martinez, 84 N.Y.2d 83, 87 (1994). It is, therefore, critical to look at the actual words of the complaint, something the respondents implicitly invite the Court not to do. After alleging that neither the patient nor his family consented to the filming at issue here (R.37 ¶28), the amended complaint then alleges in the Fourth Cause of Action: “49. That defendants unnecessarily, recklessly, willfully, maliciously and in conscious disregard of MARK S. CHANKO’s rights disclosed and discussed his medical 3 condition with cast members of NY MED and allowed them to videotape said conversations and videotape his medical treatment for broadcast and dissemination to the public in an episode of that television show.” (R.42) (emphasis added). “51. Defendants’ disclosure of MARK S. CHANKO’s medical information constitutes a violation of physician patient confidentiality and an invasion of his privacy and is a violation of State and Federal statutes protecting the privacy of medical records and information and violated paragraph 13 of the New York State Patient Bill of Rights.” (R.42)(emphasis added). As is clear from the plain words of the amended complaint, the appellants allege that the hospital and the doctor “disclosed and discussed his medical condition with cast members of NY MED and allowed them to videotape said conversations and videotape his medical treatment,” and that “Defendants’ disclosure of MARK S. CHANKO’s medical information constitutes a violation of physician-patient confidentiality.” The hospital and the doctor do not deny that if these allegations are assumed to be true, as they must be at this stage of the litigation, they assert a breach of physician- patient confidentiality. Nothing further is required at this stage, and respondents’ extended discussion that the complaint is about privacy, Hosp. and Doctor Br. 4, 14-16, invites the 4 Court to not read the complaint but, instead, to simply rely on the respondents’ brief. The invitation should be declined. B. Distorting One Sentence in Appellants’ Brief Despite the plain words of the complaint, respondents hospital and doctor seek to deflect attention from the words of the complaint by quoting one sentence from appellants’ brief. That sentence reads: “The complaint plainly alleges that the doctor and the hospital breached patient confidentiality when they let the television crew into the operating room to film the diagnosis and treatment of a patient.” App. Br. at 4. In service of their argument that the issue is privacy, not patient confidentiality, respondents repeat the sentence as follows: “Appellants assert that ‘[t]he complaint plainly alleges that the [Hospital Defendants] breached patient confidentiality when they let the the television crew into the operating room to film the diagnosis and treatment of [decedent].’” Hosp. and Doctor Br. at 14 (emphasis in original). Respondents’ emphasis on one phrase of the sentence is, of course, an effort to have the Court avert its eyes from the rest of the sentence which speaks of the breach of patient confidentiality caused by the filming of the diagnosis and treatment of the patient. 5 And the phrase that the hospital and doctor “let the television crew into the operating room” simply asserts that the hospital and the doctor allowed or permitted the television crew to be in the room to conduct the filming which breached confidentiality. This is simply the unremarkable assertion that the filming was done with the knowledge and consent of the hospital and the doctor as alleged in paragraph 49 of the complaint: the defendants “in conscious disregard of MARK S. CHANKO’s rights disclosed and discussed his medical condition with cast members of NY MED and allowed them to videotape said conversations and videotape his medical treatment.” (emphasis added). In sum, on a motion to dismiss for failure to state a cause of action the argument of the hospital and the doctor is based solely upon avoiding any discussion whatever of the actual words of the complaint, and wrenching from one sentence in appellants’ brief a meaning that sentence does not have. C. Real-Time Violation of Confidentiality The hospital and the doctor advance a theory that a violation of patient confidentiality occurs only if the disclosure is made “post-examination,” “post-treatment,” “subsequent” to treatment, “after a procedure, treatment, or diagnosis had been performed or made.” Hosp. and Doctor Br. at 6 19, 20, 22 (emphasis in original). In respondents’ view physician-patient confidentiality does not apply to the “contemporaneous ‘disclosure’” which occurred here. Id. at 20. Not surprisingly, respondents cite no case, no treatise, no speculative law review article, to support their claim. Instead, they cite cases in which individuals have sued for post- treatment disclosure of confidential information, and elevate those factual settings into a rule of law. Thus, based on the respondents real-time theory, a hospital could, without patient consent, set up a direct feed from operating room to television broadcast booth with the diagnosis and treatment of a patient since this is only a “contemporaneous disclosure.” Or a doctor in his office could permit nonmedical personal to overhear his conversations with patients because this, too, is a “contemporaneous disclosure.” Physician-patient confidentiality embraces “any information” a doctor acquires which is necessary for diagnosis or treatment, CPLR § 4504(a), and respondents’ attempt to graft a temporal component onto the privilege is a dangerous departure from 140 years of decisions by this Court. This case is at the intersection of medical confidentiality and the modern information age. If affirmance of the order on appeal means what 7 respondents maintain it means, then affirmance "augurs ill for the future of medical confidentiality." App. Br. 21. D. Disclosure of Embarrassing Information Not content to limit itself to a “real-time” theory of physician-patient confidentiality, a world-class hospital and one its doctors maintain that medical confidentiality applies only to information which may be “embarrassing” to a patient. Hosp. and Doctor Br. at 19-21. Again, respondents cite no case, no treatise, no speculative law review article, to support this theory of medical confidentiality. Respondents seem to be arguing that because the physician-patient privilege encourages patients to disclose embarrassing information which may be helpful for treatment, if the information is not embarrassing it can be disclosed by a hospital or doctor. This overlooks, of course, that another purpose of the privilege is the “need to protect the privacy expectations of patients.” Dillenbeck v. Hess, 73 N.Y.2d 278, 285 (1989). It also overlooks that respondents’ novel theory is an invitation to endless litigation over what is and what is not embarrassing, and an invitation to patients to withhold information from medical personnel out of concern that medical personnel will not 8 consider the information sufficiently embarrassing to bar disclosure. Grafting “embarrassing” onto “any information” of CPLR § 4504(a) is the second effort by a world-class hospital in a single case to undermine patient confidentiality. This effort stands against 140 years of cases by this Court and should be rejected. E. Newsworthy The hospital and the doctor argue that because the press may be privileged under certain circumstances to report “newsworthy” material, the respondents were privileged to disclose “newsworthy” confidential medical information to ABC and to permit ABC to report it. Hosp. and Doctor Br. at 50-53. Unsurprisingly, respondents cite no authority for the proposition that they have the right to provide confidential medical information to the press, and undoubtedly many of its celebrated patients would be astounded to learn that this is the legal position of the hospital. F. Many Have Access to Confidential Information The hospital and the doctor argue that it is “commonplace” for many non-caregivers to already have access to areas of a hospital in which confidential medical information can become available to these individuals. Hosp. and Doctor Br. at 29-30. 9 But if respondent hospital is already lax in safeguarding confidential medical information, that provides no support for enlarging that laxness by permitting television camera crews in emergency and operating rooms without patient consent. G. Damages The hospital and the doctor maintain that this action for breach of medical confidentiality cannot stand because there is no evidence of an actual pecuniary or emotional injury to the patient. This Court has not articulated the legal theory upon which an action for breach of medical confidentiality is predicated. If implicit in the contractual undertaking between doctor and patient, then a violation of confidentiality is a breach of contract and is actionable even if damages are nominal. Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95 (1993); Doe v. Community Health Plan, 268 A.D.2d 183, 187 (3rd Dept. 2000)(medical confidentiality is a contractual relationship a breach of which is actionable as a tort). If the action sounds in tort, then there is a reasonable inference from the amended complaint that the patient suffered a loss at the time the hospital and doctor disclosed confidential information to the television film crew. The very act of an unauthorized disclosure is an injury to a patient who expects a 10 doctor to keep confidential the information imparted to the doctor for treatment. In some instances that injury may be substantial; in other cases less so, but an injury there has been. In addition, 140 years of cases in this Court, as well as the extensive privacy protections afforded by New York law to patients as documented by respondents, Hosp. and Doctor Br. at 32 n.11, show that physician-patient confidentiality is an “important technical right” which should be scrupulously protected even if damages are nominal. Kronos, Inc. v. AVX Corp., 81 N.Y.2d at 95; Weiss v. Miller, 166 A.D.2d 283 (1st Dept. 1990), aff’d, 78 N.Y.2d 979 (1991)(nominal damages for claim that dentist violated fiduciary duty); Carey v. Piphus, 435 U.S. 247, 266 (1978)(nominal damages for violation of procedural due process). In any event, at this stage the raw footage of the events in the emergency and operating rooms has not been disclosed so we do not know the reaction of the patient to the presence of cameras. We do know from the edited videotape that he was conscious and speaking to the medical staff. From the raw footage jurors can determine damages for the emotional distress caused by the presence of cameras in the operating room. See 11 generally, Kennedy v. McKesson Co., 58 N.Y.2d 500, 504-505 (1983). H. Professional Standards While the hospital and the doctor maintain that their conduct is above reproach, not only did they violate legally recognized physician-patient confidentiality, but they violated the standards of their profession. The American College of Emergency Physicians (ACEP), which represents more 32,000 emergency care personnel, http://www.acep.org/aboutus/history/ (August 23, 2015), has a specific articulated policy regarding filming in emergency rooms: Commercial Filming of Patients in the Emergency Department Revised and approved by the ACEP Board of Directors with title “Commercial Filming of Patients in the Emergency Department” June 2015 Revised by the ACEP Board of Directors February 2009 Originally approved by the ACEP Board of Directors with title “Filming in the Emergency Department” February 2002 The American College of Emergency Physicians (ACEP) believes that the commercial filming of patients or staff may be done only if patients and staff give fully informed consent prior to filming. Because commercial filming cannot benefit a patient medically and may compromise both their privacy and confidentiality, filming should not 12 commence unless and until a patient with full unencumbered decision making capacity can explicitly consent or, if institutional policies permit surrogate consent for commercial filming, that consent is given. Patients who do consent should have the right to rescind their consent up until a reasonable time before broadcast to the public. Hospitals should develop and implement policies to regulate commercial filming that are approved by hospital governing bodies. Policies for filming should be approved by hospital ethics committees(or their representatives), which should ideally include physicians and community members. Departmental leaders should also be required to approve requests for such activities. http://www.acep.org/Clinical---Practice- Management/Commercial-Filming-of-Patients-in-the- Emergency-Department/?__taxonomyid=471106 (August 22, 2015) The hospital and the doctor have violated this policy. In sum, a cause of action for breach of physician-patient confidentiality has been stated. The order on appeal should be reversed. POINT II ABC’s SURMISE AND SPECULATION DOES NOT REFUTE THE TRUTH OF THE ALLEGATIONS OF THE COMPLAINT. Like the hospital and the doctor, supra Point I, American Broadcasting Companies (“ABC”) did not file an answer to the complaint, and like the hospital and the doctor, it does not 13 present any facts to rebut the assumed truth of the allegations of the complaint. At the outset it is important to state what ABC does not deny. It does not deny that it knew that ABC itself was filming confidential medical information without the consent of the patient or the patient’s family; it does not deny it knew that this was done intentionally or recklessly; it does not deny it knew that this confidential medical information would become known not only to the camera crew, but to others within the ABC organization; it does not deny it knew that it supplied the equipment for a surgeon to secretly record for ABC the surgeon’s discussion of confidential medical information with the patient’s family; and it does not deny it knew, as alleged in the complaint (R.43 ¶56), that it would cause severe emotional distress to the plaintiffs to learn of the filming and dissemination of the confidential information within ABC and to the public. And unlike the cases relied upon by ABC in which a news organization disclosed embarrassing information without penalty, in this case ABC knew it was actively engaged in aiding and abetting tortious behavior: the breach of the physician- patient confidentiality. Without reference to any facts in the record ABC maintains that it sought not to reveal the identity of the family or 14 patient. But there is no evidence that the camera crew did not learn the identity of the patient; there is no evidence that the patient’s identity was not disclosed to the 13 or more ABC personnel who edited the video. App. Br. 33-34. But there is evidence that from the broadcast the patient’s identity became known to viewers. (R.66). ABC seeks to align itself with journalists who are passive recipients of secret or confidential information which they then report. ABC Br. at 40-41. But this is not a case of a government or corporate whistleblower who removes information from a government or corporate computer or file cabinet and then passes the information on to a journalist in a restaurant or on a park bench. Nor is this a case in which the hospital or the doctor took films in the operating room and later gave them to a journalist. This case is more akin to a journalist who enters the government or corporate office and assists the whistleblower in downloading computer files or removing them from a file cabinet. Here, ABC itself was inside the operating room. It furnished the very equipment used to breach medical confidentiality--the camera and the audio--and ABC itself wired the doctor to secretly record his conversation with the family. ABC, in short, 15 aided and abetted--or, the evidence may show, induced--the breach of confidentiality by the hospital and the doctor. As ABC states, “To be sure, the press is not immune from liability for torts or crimes committed during the course of newsgathering.” ABC Br. at 40. Galella v. Onassis, 487 F.2d 986, 995-996 (2nd Cir. 1973)(“Crimes and torts committed in news gathering are not protected....There is no threat to a free press in requiring its agents to act within the law”). Shiffman v. Empire Blue Cross and Blue Shield, 256 A.D.2d 131 (1st Dept. 1998)(press liable for trespass into private medical office; constitutional guarantees “confer no privilege for trespass”). Appellants are not “transforming the receipt of information itself into a tort.” ABC Br. at 41. Rather, ABC was actively involved in the commission of the tort. While ABC as a nonmedical organization may not be directly liable under the fourth cause of action for breach of medical confidentiality, its active participation in the breach of medical confidentiality plainly bears on the matter of the intentional, reckless, and deliberate conduct alleged in the fifth cause of action. Because ABC has not filed an answer or an affidavit by a person with knowledge of the events in the hospital and afterward, much is not known about ABC’s conduct. It is not 16 known, for example, whether ABC paid the hospital for access; it is not known whether ABC had an agreement with the hospital not to film any patient without the patient’s consent--the breach of which would bear directly on ABC’s intent under the fifth cause of action. Anderson v. Strong Memorial Hospital, 151 Misc.2d 353 (Sup. Ct. Monroe Co. 1991)(liability of newspaper to hospital for breaching promise not to disclose identity of patient). Nor can ABC justify its conduct because it had the consent of the hospital to film in the emergency and operating rooms. Physician-patient confidentiality belongs to the patient, not to the hospital, and the hospital could not waive confidentiality for the patient. Nor do we have the raw footage of all that occurred in the hospital. We do know that the patient was conscious in the operating room, but we do not know whether he complained about the presence of ABC’s camera crew. We do know that ABC wired the doctor secretly to record the doctor’s conversation with the family, but we do not know the full scope of the confidential information disclosed in that conversation. In short, the Appellate Division dismissed a well-pleaded claim against ABC without knowing, or even having the means to know at this stage, whether the undisclosed raw footage refutes the cause of action. 17 The disclosure of confidential medical information “shocks our sense of decency and propriety.” Dillenbeck v. Hess, 73 N.Y. 2d at 285 (quoting Davis v. Supreme Lodge Knights of Honor, 165 N.Y. 159, 163 (1900)). The hospital, the doctor, and ABC cite cases in which the release of distressing and personal information was held not to constitute the infliction of emotional distress. Hosp. and Doctor Br. at 40-46; ABC Br. at 18-21. Significantly, however, not one of those cases addresses the release of confidential medical information, nor does the case relied upon by the Appellate Division, Phillips v. New York Daily News. 111 A.D.3d 420 (1st Dept. 2013), concern confidential medical information. (The other case cited by the Appellate Division, Randi v. Long Island Surgi-Center, 46 A.D.3d 74 [2nd Dept. 2007], recognized there is a cause of action for wrongful disclosure of confidential information.) As 140 years of cases in this Court show, physician-patient confidentiality covers a very broad range of disclosure, and the confidences are rigorously protected. As even the respondents recognize, because of the unique status our society attaches to medical confidentiality, in addition to the court cases, there are a “host of existing statutes, rules, and regulations” 18 designed to protect medical confidentiality. Hosp. and Doctor Br. at 32 n.11. Indeed, so unique is the importance our society attaches to medical confidentiality that this Court has noted that the release of confidential medical information by the government raises constitutional concerns. Dillenbeck v. Hess, 73 N.Y.2d at 285. What this Court said at the beginning of the 20th century-- that the unauthorized release of confidential medical information “shocks our sense of decency and propriety”--is even more true today. Although the hospital and the doctor are directly responsible for the disclosure of confidential medical information to ABC, they maintain that they cannot be liable for the infliction of emotional distress: the fifth cause of action alleges they “allowed and permitted and caused” ABC to broadcast and disseminate the video, but the hospital and doctor had no control over the broadcast and dissemination of the video. Hosp. and Doctor Br. at 39. The hospital and doctor have a cramped understanding of the cause of action, and, in any event, the hospital and doctor have not placed in the record any evidence that they had no input into the edited video which was broadcast by ABC. 19 On a motion to dismiss for failure to state a cause of action the complaint must be read in a light most favorable to the plaintiff and all inferences are to be drawn in favor of the plaintiff. Leon v. Martinez, supra. The complaint alleges that the hospital and the doctor “allowed and permitted” ABC to broadcast the video, and this is literally true. When addressing medical confidentiality a hospital and a doctor must take into account what is “reasonably foreseeable.” Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d 480, 485 (2014). The hospital and the doctor “allowed and permitted" the television crew to be in the hospital and to film there, and they knew that ABC intended to broadcast what the crew filmed. It was plainly foreseeable that ABC would broadcast the video and audio of the confidential information the hospital and the doctor permitted the crew to see and hear, and it was certainly foreseeable that this would cause emotional distress to the patient’s family. While the hospital and doctor, who have not served answers, simply maintain they did not intend to cause emotional distress to plaintiffs, they ignore that the tort can be based upon their disregard of a substantial probability of causing severe emotional distress. Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 (1993); Dana v. Oak Park Marina, 230 A.D.2d 204, 208-208 (4th Dept. 1997)(placing video surveillance camera in 20 ladies’ room is reckless infliction of emotion distress). The amended complaint explicitly alleges that they acted recklessly. (R.43 ¶56). There is no basis on which to dismiss the fifth cause of action with respect to the hospital and the doctor. With respect to ABC it is alleged that it actively participated in assisting in the breach of medical confidentiality with full knowledge that its filming and dissemination of confidential medical information would cause severe emotional distress. Its participation in assisting the hospital and the doctor to breach confidentiality raises a question of fact whether it has “abused” its press privilege. Howell v. New York Post Co., 81 N.Y.2d at 126. The view that its conduct (and the conduct of the hospital and doctor) is not shocking and indecent, and its view that as a news organization it can with impunity assist the tortious conduct of a hospital and doctor which causes such emotional distress, has no support in the law. The claim against ABC should be reinstated. POINT III THE EDITED VIDEO CANNOT PROVIDE THE BASIS FOR DISMISSAL OF THE COMPLAINT. When it dismissed the amended complaint for failure to state a cause of action, the Appellate Division essentially had 21 before it two items: the amended complaint and a DVD of an ABC broadcast on August 21, 2012, (R.48), which the parties agree is an edited version of all that ABC’s camera crew filmed and recorded in the hospital on April 29, 2011. Neither the hospital, the doctor, nor ABC submitted anything further regarding their conduct or the events April 29, 2011. Appellant has maintained that because the DVD is an ABC- edited account of what occurred on April 29, 2011, it is not the sort of material which can provide the basis for dismissing a complaint for failure to state of action pursuant to CPLR § 3211(a)(7), nor is it the sort of “documentary evidence” which can provide the basis for dismissal under § 3211(a)(1). App. Br. 38 et seq. Respondents do not deny that the DVD has not been authenticated because there is no evidence from the cameraman that the video or DVD “correctly reflects what he saw, and that it has not been altered or edited.” Zegarelli v. Hughes, 3 N.Y. 3d 64, 69 (2004)(emphasis supplied); People v. Patterson, 93 N.Y.2d 80, 84 (1999). ABC simply asserts that the DVD has been edited, but there no indication exactly what was changed from the original footage shot by the cameraman. While no objection was raised to the DVD in nisi prius, a party can raise on appeal for the first time a legal argument 22 that is plain on the face of the record and could not have been refuted by the opposing side had it been explicitly raised below. Sega v. State of New York, 60 N.Y.2d 183, 190 n.2 (1983). All the parties agree that the DVD is edited, that it states on its face that it is edited, and that it does not purport to show all that the camera crew saw and heard on April 29, 2011. The hospital and the doctor maintain that the edited DVD played no role in the Appellate Division’s dismissal of the fourth and fifth clauses of action. Hosp. and Doctor Br. 36-37. The dispositive two paragraphs of the Appellate Division’s order and decision read: “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 (see Howell v New York Post Co., 81 NY2d 115, 121 [1993]; Phillips v New York Daily News, 111 AD3d 420, 421 [1st Dept 2013]. “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). The quoted paragraphs put to rest the claim that the Appellate Division did not rely upon the edited videotape. The 23 comment in the first quoted paragraph regarding the “pixilated image” can only refer to the edited video. The conclusion in the second quoted paragraph that “no such [personal] information regarding plaintiffs’ decedent” was disclosed, again can only have referred to the edited video: it could not have referred to the amended complaint which expressly alleges the disclosure of confidential patient information. The fundamental flaw in the two paragraphs is, of course, the reliance of the Appellate Division on an edited videotape instead of the words of the amended complaint. The harm is that in a complaint which alleges that the hospital disclosed confidential medical information to a television film crew, the focus of the Appellate Division was not on the disclosure but on what the television station ultimately decided to disseminate to the public in the edited video. As appellants have maintained, App. Br. at 21 and 37, and respondents do not deny, the order on appeal shifts from the medical profession to a television station the protection of confidential medical information. Finally, even assuming arguendo that the Appellate Division did not rely on the edited video, then all that remained before that court was the amended complaint whose allegations it is assumed are true, and which allegations state viable causes of action. 24 The Appellate Division dismissed a well-pleaded complaint on the basis of “documentary evidence” which is edited and which does not purport to reflect in its entirety what the hospital and doctor disclosed to the television film crew in the hospital, nor all that the raw footage disclosed to ABC personnel. The edited video is not the sort of “documentary evidence” which can provide the basis for dismissing a well- pleaded complaint. The order on appeal should be reversed. CONCLUSION THE ORDER ON APPEAL SHOULD BE REVERSED AND THE FOURTH AND FIFTH CAUSES OF ACTION REINSTATED. Respectfully submitted, NORMAN A. OLCH August 24, 2015. 25 26