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. >> >> BRIEF FOR PLAINTIFFS-APPELLANTS LAW OFFICES OF MARK J. FOX Attorneys for Plaintiffs-Appellants By: NORMAN A. OLCH Appellate Counsel 233 Broadway, Room 705 New York, New York 10279 Ph: 212-964-6171 Fx: 212-964-7634Date Completed: June 24, 2015 To Be Argued By: Norman A. Olch Time Requested: 20 Minutes TABLE OF CONTENTS Table of Authorities 111 Questions Presented ...............•...................... V1 Jurisdictional statement viii Introduction 1 Statement of Facts 5 The Motion to Dismiss 8 ( a) ABC 9 (b) The Hospital and Dr. Schubl ••...•••••....•••... 9 (c) Dr. Ranawat and Dr. Maak •......•........••.... 10 (d) Plaintiffs' Opposition to the Motion 12 1. The Attorney's Affirmation ..............•... 12 2. The Plaintiffs' Affidavits 16 (e) Defendants' Reply ..•...•...•....•.••••....•••• 18 The Decision on the Motion ••..•••••...••••••.•.•••••. 18 The Appeal to the Appellate Division ••••••••••••••••• 19 Leave to Appeal to This Court ••••••.••.•••••••••••••. 20 i ARGUMENT POINT I THE ALLEGATION OF THE COMPLAINT THAT THE HOSPITAL AND A DOCTOR GAVE A TELEVISION FILM CREW ACCESS TO PRIVATE MEDICAL INFORMATION WITHOUT THE CONSENT OF THE PATIENT STATES A CAUSE OF ACTION FOR BREACH OF PHYSICIAN- PATIENT CONFIDENTIALITY. • ••••••••••••••• 20 POINT II ABC'S DVD--AN EDITED VERSION OF ALL ITS FILM CREW SAW AND RECORDED--IS NOT nDOCUMENTARY EVIDENCE" UNDER CPLR § 3211(a)(1) WHICH CAN PROVIDE THE BASIS FOR DISMISSING A COMPLAINT. . 38 POINT III PLAINTIFFS HAVE A CAUSE OF ACTION FOR THE INFLICTION OF EMOTIONAL DISTRESS BY THE DOCTOR AND BY THE HOSPITAL. POINT IV • ••••••••••••••• 42 THE PLAINTIFF HAS A CLAIM THAT ABC IS AN AIDER AND ABETTOR OF THE TORTS COMMITTED BY THE DOCTOR AND THE HOSPITAL, AND THAT ITS OWN BROADCAST INFLICTED EMOTIONAL DISTRESS. . 45 ii Conclusion 47 Table of Authorities Cases: Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc., 120 A.D.3d 431 (1st Dept. 2014) 39 Burton v. Matteliano, 81 A.D.3d 1272(4th Dept. 2011) 22 Camperlengo v. Blum, 56 N.Y.2d 251 (1982) 23 Davis v. Supreme Lodge Knights of Honor, 165 N.Y. 159 (1900) 43 Dillenbeck v. Hess, 73 N.Y.2d 278 (1989) 26, 33, 43 Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d 480 (2014) .... 21, 34 Eddington v. Mutual Life Ins. Co., 67 N.Y. 185 (1876) 20, 24, 25 Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314 (2002) 38 Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977) 31 Held v. Kaufman, 91 N.Y.2d 425 (1998) 38 Hobbs v. Hullman, 183 A.D. 743 (3rd Dept. 1918) 35 Howell v. New York Post Co., Inc., 81 N.Y.2d 115 (1993) 43 Inger M. v. Hillside Children's Center, 17 A.D.3d 293 (1st Dept. 2005) 35 Leon v. Martinez, 84 N.Y.2d 83 (1994) 29, 31 Lightman v. Flaum, 97 N.Y.2d 128 (2001) 22, 28 iii Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d 525 (2002) 27 Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130 (1983) 26, 27 Matter of the City Council of the City of New York v. Goldwater, 284 N.Y. 296 (1940) 25 Murphy v. American Home Products Corp., 58 N.Y.2d 293 (1983) 43 Nelson v. Village of Oneida, 156 N.Y. 219 (1898) ...•..... 24 Oster v. Kirschner, 77 A.D.3d 51 (1st Dept. 2010) 45 People v. Decina, 2 N.Y.2d 133 (1956) 24, 25 People v. Rivera, N.Y.3d (May 5, 2015) 27 Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556 (5th eire 1997) .................•...... 34, 39 Prink v. Rockefeller Center, 48 N.Y.2d 309 (1979) .... 26, 35 Renihan v. Dennin, 103 N.Y. 573 (1886) 24, 25 Roach v. Stern, 252 A.D.2d 488 (2nd Dept. 1998) 44 Sawicka v. Catena, 79 A.D.3d 848 (2nd Dept. 2010) 44 Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43 (1999) 45 Sunset Cafe, Inc. v. Mett's Surf & Sports Corp., 103 A.D.3d 707 (2nd Dept. 2013) ...•••.•.••.............. 40 Zegarelli v. Hughes, 3 N.Y.3d 64 (2004) .....•....•....... 39 Other: CPLR § 3211 ( a) ( 1 ) 38 CPLR § 4504 passim iv Education Law § 6530(23) .•.•.••••••••.•...•..•.•••••••••. 22 8 NYCRR 29. 1 [b] [ 8 ]) 22 v QUESTIONS PRESENTED 1. Does a plaintiff have a cause of action for breach of the fiduciary duty to maintain the confidentiality of patient medical information when the complaint alleges that a hospital and a doctor, without the consent of the patient, disclosed such medical information to the personnel of a television broadcast company, and a DVD of the television broadcast confirms the disclosure of confidential medical information? 2. Is a DVD which is an edited version of all that a television camera crew saw and heard in a hospital operating room "documentary evidence" under CPLR § 3211(a)(1) which can provide a basis for dismissing a complaint? 3. Are a doctor's and a hospital's disclosure of confidential medical information to a television film crew, and the doctor's secret recording for the film crew of his conversation reporting the death of the patient to family members, either individually or cumulatively, so extreme and outrageous as to provide the basis for a cause of action alleging the infliction of emotional distress? 4. In a case in which a patient has not consented to the release of confidential medical information by a doctor or a hospital, can a television broadcast company be liable for aiding and abetting the breach of the fiduciary duty to maintain the vi confidentiality of patient information and the infliction of emotional distress when (a) the company knows that its filming of the operating room procedure is without the consent of the patient, (b) the company furnishes the doctor with the equipment to secretly record the doctor's conversation reporting the death of the patient to family members, and (c) the company broadcasts all of this to the public? vii JURISDICTIONAL STATEMENT Pursuant to CPLR § 5602(a)(1)(i) this Court has jurisdiction to entertain the appeal and to review the questions raised: the action originated in the Supreme Court, New York County; the Appellate Division, First Department, has granted permission to appeal to this Court; the order of the Appellate Division finally determines the action; the order of the Appellate Division is not appealable to this Court as of right; and the Appellate Division has certified that its determination was made as a matter of law and not in the exercise of discretion. viii Introduction The order on appeal eviscerates the understanding of physician-patient confidentiality which has stood for over 140 years. Since the 19th century this Court has given a broad and liberal construction to physician-patient confidentiality so that the confidentiality embraces any information a doctor acquires while attending a patient, as long as the information is necessary for the treatment of the patient. Under this broad approach the confidentiality has come to include such matters as a doctor's observations of a patient's appearance, sYmptoms and ailments, verbal communications from patients, prior medical history, and the results of diagnostic tests. The confidentiality is broader than that embraced by the attorney-client privilege, and is fashioned to serve the goals of maximizing unfettered patient communication with medical personnel by foreclosing the public embarrassment which could deter individuals from seeking medical treatment; encouraging doctors to be candid in recording information in medical expectations information. disclosure records; and protecting against patients' of 1 reasonable sensitive privacy personal The order on appeal ignores the weight of precedential authority and ignores the very purpose of doctor-patient confidentiality. The record shows that after an elderly man was struck by a garbage truck he was brought to the emergency room of a major Manhattan hospital. Without the consent of the patient or his family, the attending doctor and the hospital permitted a television crew to video- and audiotape what transpired: the doctor's diagnosis of the patient's condition, the doctor's planned course of treatment, and the monitors disclosing the patient's vital statistics. And all sense of decency was then abandoned when the doctor secretly recorded for the television crew his meeting with the man's wife and children to report that their loved one had died in the operating room. Sixteen months later the man's widow happened to be watching a television program when she saw for the first time that her late husband's filmed diagnosis and treatment in the operating room was a subject of the program, and that the doctor's conversation with the family was recorded. Suit was brought by the patient's estate against the hospital, the doctor, and the television company alleging a breach of physician-patient confidentiality and infliction of emotional distress. While nisi prius denied the motion to 2 dismiss the complaint for failure to state a cause of action, the Appellate Division reasoning that there reversed was no and dismissed violation of the complaint, doctor-patient confidentiality because the program broadcast on television did not reveal the identity of the patient, and because the television broadcast was not so outrageous as to support a claim for infliction of emotional distress. The Appellate Division's reasoning is deeply flawed. The alleged breach of confidentiality is based on the doctor's and the hospital's disclosure of private medical information to the television crew (and to those who would later foreseeably edit the tape for viewing purposes), and not on what the television company chose to broadcast to the public. And while the television company itself cannot be accused of breaching patient confidentiality, the record shows that the television station aided and abetted the breach by the surgeon and the hospital. The record also shows that the conduct here is so shocking to our sense of decency and propriety that a claim of infliction of emotional distress is stated. Finally, in support of the motion to dismiss the complaint, the television company submitted to the court a DVD of the television program broadcast to the public, and the Appellate Division cited to the content of the tape to support its ruling 3 dismissing the complaint. But the DVD is an edited version of what the television crew filmed and recorded in the operating room, and an edited version of what those who later actually edited the tape for public viewing saw and heard. While the edited version confirms the breach of confidentiality, it does not show the full scope of that breach and is not the sort of documentary evidence which can provide the basis for dismissal of a complaint. 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. The Appellate Division determination that there was no breach because the television program later broadcast to the public concealed the identity of the patient, stands against rulings of this Court over the past 140 years. A breach of physician-patient confidentiality does not evaporate because the television company to which the unauthorized disclosure is made limits the amount of confidential information it shows the public. The order on appeal should be reversed, and the complaint reinstated. 4 statement of Facts In March 2013, Anita Chanko, the widow of Mark S. Chanko and the executrix of his estate, filed suit in Supreme Court, New York County, against American Broadcasting Companies, the New York and Presbyterian Hospital, and three doctors who worked at the hospital. An amended verified complaint (R.33-47) was filed in April, 2013, and is the subject of this appeal. Under the amended complaint the plaintiffs are Anita Chanko, the widow of Mark S. Chanko and the executrix of his estate; Mark Chanko's two sons, Kenneth and Eric Chankoj his daughter Pamela Chanko; and his daughter-in-law Barbara Chanko, Kenneth's wife. The defendants are American Broadcasting Companies, Inc. (IIABC"), the New York and presbyterian Hospital ( lithe hospital"), and three doctors who worked at the hospital, Dr. Sebastian Schubl, Dr. Anil S. Runawat, and Dr. Travis Maak. The complaint alleged that on April 29, 2011, Mark Chanko was admitted as a patient to the hospital where he received medical treatment. The defendant doctors were his treating physicians. (R.36 "20-21). In the hospital at the same time, and with the permission and consent of the hospital, ABC was filming a television show called IINY Med." It is alleged that ABC filmed and recorded the 5 medical diagnosis and treatment of Mark Chanko, his words, and his death, and that all of this was used in an episode of NY Med which ABC broadcast on August 21, 2012. (R.36-37 "24-26). It is further alleged that neither Mark Chanko nor any of the plaintiffs was aware that the events in the hospital were being filmed, and that none of these individuals gave written or oral consent to the broadcast of the recorded hospital events. (R.37 '28). The amended complaint further alleges that defendant Dr. Schubl verbally informed the plaintiffs of Mark Chanko' s death in the hospital, that this, too, was recorded by ABC without the knowledge or consent of the plaintiffs, and that this, too, was part of the episode on NY Med broadcast by ABC on August 21, 2012. (R.37 "27-28). The plaintiffs first became aware that ABC had recorded the medical treatment and death of Mark Chanko when his widow happened to see the episode of NY Med broadcast by ABC on August 21, 2012. (R.37 '29). Based on these facts the amended complaint alleged five causes of action. The First Cause of Action (R.38-39) alleged that ABC's commercial use of Mark Chanko' s image and voice violated his rights of privacy under Civil Rights Law §§ 50 and 51. 6 The Second Cause of Action (R.40) alleged that the defendants invaded Mark Chanko' s privacy when they entered his hospital room without his consent and filmed him when they knew that he "was gravely ill and that he was thus defenseless in protection of his privacy." (R.40 '42). The Third Cause of Action (R. 40-41) alleged that without the knowledge or consent of Mark Chanko or any of the plaintiffs, the defendants installed and concealed listening and recording devices and video cameras in hospital rooms occupied by Mark Chanko and the plaintiffs. As a result, the defendants recorded and videotaped private conversations among themselves, and conversations with physicians and related hospital professionals. ABC's broadcast of this material further invaded the privacy of Mark Chanko and the plaintiffs. The Fourth Cause of Action alleged: "49. That defendants unnecessarily, recklessly, willfully, maliciously and in conscious disregard of MARK S. CHANKO'a 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 for broadcast and dissemination to the public in an episode of that television show." (R.42). The cause of action further alleged: disclosure of MARK S. information constitutes a physician patient an invasion of his "51. Defendants' CHANKO's medical violation of confidentiality and 7 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). The Fifth Cause of Action (R.43-44) alleged that without the knowledge, permission or consent of Mark Chanko and the plaintiffs, the defendants allowed, permitted and caused ABC lito broadcast and disseminate the videotape of the final moments of his life and the moment of his death." Plaintiffs were shocked when they saw the broadcast. (R.43 '54-55). It is alleged that the defendants acted intentionally, recklessly, willfully, maliciously and deliberately, "and it was foreseeable that plaintiffs would be caused to suffer emotional distress. Alternatively, defendants acted with reckless disregard for the probability that they would cause plaintiffs to suffer emotional distress." (R.43 '56). The defendants' conduct was "extreme and outrageous, beyond all possible bounds of decency, utterly intolerable in a civilized community, and without privilege." (R.44 '58). The amended complaint sought compensatory and punitive damages. (R.44-46). The Motion to Dismiss The defendants did not answer the complaint. In July 2013 they made motions to dismiss the complaint. First, ABC moved to 8 dismiss pursuant to CPLR § 3211(a)(1) [a defense is founded upon documentary evidence] and CPLR § 3211(a)(7) [failure to state a cause of action]. (R.28-29 [Notice of Motion]). Second, the hospital and Dr. Schubl moved to dismiss under the same sections of the CPLR. (R.150-151 [Notice of Motion]). Third, Dr. Ranawat and Dr. Maak moved to dismiss under CPLR § 3211(a)(7) [failure to state a cause of action], and sought a severance from the action and deletion of their names from the caption of the case. (R.192-193 [Notice of Motion]). (a) ABC In support of its motion ABC submitted an affirmation of counsel (R.30-31) to which was annexed Ua true and correct copyu of the NY Med episode broadcast on August 21, 2012. (R.48). Also annexed was a true and correct copy of a usecond version" of the episode Uwithout the segment relating to Mr. Chanko, to substitute for the original Broadcast." This version is now on the Internet. (R.31 ~5; R.49 [second version]). (b) The Hospital and Dr. Schubl In support of their motion to dismiss, the hospital and Dr. Schubl submitted an affirmation of counsel (R.152-153) which incorporated by reference the DVD of the original August 21, 2012, broadcast of NY Med which was annexed to ABC's motion papers. Counsel's affirmation averred that U[t]he one-hour 9 program includes segments devoted to NYP' s efforts to save Mr. Chanko's life, which total approximately two and one-half minutes in length (the segments appear at 26:27-28:00; and 30:17-31:49)." (R.153 '4). (c) Dr. Ranawat and Dr. Maak In support of their motion Dr. Ranawat and Dr. Maak submitted an affirmation of counsel (R.195-197) which had annexed as exhibits the affidavit of each doctor. Dr. Ranawat (R.204-205) averred that he is an assisting attending orthopedic surgeon at the Hospital for Special Surgery in Manhattan who is occasionally called upon to provide consulting orthopedic and surgical care to trauma patients at New York Presbyterian Hospital ("NYPH") on East 68th Street in Manhattan. On April 29, 2011, he was called at home by NYPH to consult on emergency medical treatment and surgery to be performed on patient Mark S. Chanko. When he arrived at PYPH "I discovered that a film crew of American Broadcasting Companies, Inc. ("ABC") was present and filming various events taking place in the hospital, including the treatment of patients in the hospital's emergency and operating rooms." 10 Prior to arriving at the hospital Dr. Ranawat "had no knowledge of any contact and/or agreement between defendants ABC and New York Presbyterian Hospital to permit the filming of events taking place, or medical care being rendered in the hospitalon April 29, 2011 ." He "did not consent or otherwise agree to the presence of defendant ABC's film crew in the emergency room and/or operating rooms." Dr. Ranawat further averred that he was never contacted or consulted regarding ABC's intention to air footage of the events of April 29, 2011, and prior to the broadcast by ABC he was not aware that ABC intended to broadcast the footage of medical treatment. Dr. Maak (R.206-207) averred that he is an orthopedic surgeon at the Hospital for Special Surgery in Manhattan, and he, too, is occasionally called upon to provide consulting orthopedic and surgical care to trauma patients at New York presbyterian Hospital ("NYPH") on East 68th Street in Manhattan. On April 29, 2011, he, too, was called to NYPH to participate in the emergency surgery to be performed on Mark Chanko. His affidavit makes the same averments as Dr. Ranawat regarding the lack of any prior knowledge of the filming at the hospital or any knowledge that ABC intended to broadcast footage of medical treatment. 11 (d) Plaintiffs' opposition to the Motion The plaintiffs filed the same opposition to each of the three motions to dismiss: an attorney's affirmation, and affidavits from each plaintiff. 1. The Attorney's Affirmation The attorney's affirmation (R.50-60) provided the background to the litigation. Mark Chanko was an 83 year old man who lived in Manhattan. After being hit by a truck as he crossed the street, he was rushed by ambulance to the hospital and died the same day on the operating table. Defendant Dr. Schubl was the hospital's chief surgical resident. Dr. Ranawat was the surgeon in charge, and Dr. Maak was the assistant surgeon. Shortly after Mark Chanko arrived at the hospital his wife, children, and daughter-in-law came to the hospital. (R.51). The video submitted by defendant ABC flreveals that MARK S. CHANKO was conversant and aware up to the point where he was brought into the operating room. None of the plaintiffs knew that some of the people dressed in NYP hospital scrubs that day were in fact the case (sic) and crew of a reality television 12 show by defendant AMERICAN BROADCASTING COMPANIES INC (ABC) ." (R. 51 11 4 ) . Counsel then gave a description of the DVD furnished to the court by ABC and its impact: liThe emergency room, the hallway leading to the operating room, and the family waiting room had been transformed into an elaborate television studio. The ABC cameras were recording the Chanko family's tragedy. Defendant SCHUBL had been cast to play the star role of pretty Dr. McDreamy. All of the defendants were fully aware that defendants ABC and NYP were producing a show and that they were cast members. The deceased and the plaintiffs were never informed until one night plaintiff ANITA CHANKO saw her husband die before her eyes on television. She saw him rolled into the operating room on a stretcher. She heard him ask for her in a strong clear voice with his words flashed across the screen. She heard his moans in the operating room. She saw sheets covered in copious amounts of his blood being lifted and handled. She heard defendant SCHUBL informing a member of the ABC crew and millions of viewers of her husband's medical diagnosis and that the physicians intended to remove his leg. Then she heard Dr. SCHUBL narrate the fact that her husband's abdomen was filling with blood. Then she heard and saw defendant SCHUBL ask the surgical team if they agreed with him that her husband was now dead. Defendant SCHUBL thereafter goes to the room where the family has been placed by a social worker and delivers the bad news. His words to the family are part of the show. Blurry images of the family are visible through a glass window in the door. Lastly Dr. SCHUBL completes the drama by telling the ABC staff and America that he's had a bad day. Needless to say by viewing the television show episode Plaintiff ANITA 13 CHANKO had a far worse day than defendant SEBASTIAN SCHUBL, M.D. and so did all the rest of the deceased's family when they viewed the program. Shortly thereafter plaintiff ANITA CHANKO was made aware that family friends were able to recognize her husband as the person who had died on television because they knew the circumstances of his death and recognized his voice. The deceased's image had been blurred by ABC but his words and moans were broadcast for the entertainment of the viewers. There was no longer any anonymity or privacy for the family or the patient." (R.51-53). Counsel further maintained that defendant Dr. Schubl and a hospital social worker had formed a physician-patient relationship and a social worker-client relationship with Mark Chanko and with the family. "Both relationships entail duties of confidentiality .... No patient or client expects trusted health and counseling professionals to be secretly wired. They do not expect a hospital to share their medical information with a viewing audience and for employees of a nonmedical business corporation to be listening into their conversations." (R.54). Counsel further maintained that the New York State Department of Health had investigated the matter and found two violations of the State Hospital Code: the hospital violated the patient's ,right to "privacy consistent with the provision of appropriate care to the patient," and the hospital violated the patient's right to "confidentiality of all information and 14 records pertaining to the patient's treatment, except as otherwise provide by law." (R.54). Counsel further maintained that, "Inviting the defendant ABC's crew into the emergency room and operating room and allowing them to film and bug the family room thereby revealing medical information and personal facts to the film crew and later to ABC's in house production staff violates the code." (R. 54-55). Counsel also cited news reports that the hospital had chased after ABC to have the program filmed in the hospital, which reports quoted the hospital's public affairs official as saying, "You can' t buy this kind of publicity, an eight part series on a major broadcast network." (R.55). Counsel further asserted that plaintiff can maintain a claim for infliction of emotional distress. (R.56-58). Counsel acknowledged that under New York law the First Cause of Action for breach of Mark Chanko's privacy was extinguished at his death, and that New York law had not yet recognized the Second Cause of Action--intrusion into the hospital room of a sick or dying patient. (R.59). Since this was a joint venture between the hospital and ABC, both should be liable on the other causes of action. (R.59-60). 15 2. The Plaintiffs' Affidavits Each of the plaintiffs submitted affidavits in support of the opposition to the motion to dismiss. Anita Chanko (R.61-66), Mark Chanko's widow, explained that at about 1:30 a.m. defendant Dr. Schubl and a social worker came into the hospital room where the family was waiting, and Dr. Schubl told them her husband had died. uThere was no indication to any of us that as he spoke to us Dr. Schubl' s words were being recorded and that a video camera located outside the room was pointing at the glass pane of the door of the room and recording our grief. u (R.62-63). On August 21, 2012, about 16 months after Mark Chanko's death, she turned on the television at 3 a.m. to watch a show she had recorded on her DVR: UNY MED." Her affidavit recounts her shock and grief at seeing her husband on screen; her disgust on seeing and hearing Dr. Schubl discussing her husband's injuries on screen, and on hearing the recording of Dr. Schubl informing the family of her husband's death. UThey never asked me for permission to release the medical information Dr. Schubl recites to the audience." (R.65-66). She was unhappy to later learn that friends were aware that her husband was the patient seen on the shown. (R.66). 16 Mark Chanko's children Kenneth Chanko (R.67-71) and Pamela Chanko (R. 77-81), and his daughter-in-law Barbara Chanko (R. 72-76) affirmed that they, too, were unaware that ABC and Dr. Schubl were recording Dr. Schubl' s verbal report to them that Mark Chanko had died. They confirmed that they, too, had never given permission for the hospital to release Mark Chanko's medical information, and they confirmed the shock, grief, and disgust at seeing the television broadcast. Mark Chanko's son, plaintiff Eric Chanko, was not at the hospital the night his father died. He is a medical doctor and he expressed his shock upon watching the television program that his father's treatment was recorded and broadcast without consent. "I had never heard of such a thing. Worst of all I was shocked to see that the chief orthopedic resident was giving an interview to somebody while he was treating my father, describing my father's injuries to somebody, and giving a blow by blow narration of his death while it was occurring instead of participating in his care." (R.83). Mark Chanko's hospital records were also submitted with the opposition to the motion. (R.86-145). No mention is made in the records of the presence of the ABC camera crew in the emergency room or in the operating room. 17 (e) Defendants' Reply ABC submitted an attorney I s reply affirmation that the NY Med episode for sale by ABC News Store does not contain the segment relating to Mark Chanko. (R.147-148). Dr. Ranawat and Dr. Maak submitted an attorney's affirmation which maintained that there is no dispute that Ranawat and Maak were called to the hospital in the middle of the night to attend to a critically injured patient and that they "had nothing to do with the decisions to give permission to ABC personnel to be present in the room, to record the events transpiring therein, or to subsequently broadcast the footage." (R.247 '4). The Decision on the Motion (R.6-11) with respect to ABC, the court dismissed the First, Second, Third, and Fourth causes of action, but denied the motion to dismiss the Fifth cause of action (infliction of emotional distress). with respect to the hospital, the court dismissed the First, Second, and Third causes of action, but denied the motion to dismiss the Fourth (breach of medical confidentiality) and the Fifth causes of action. 18 with respect to Dr. Ranawat and Dr. Maak, the court granted their motion to dismiss the amended complaint and delete their names from the caption of the case. The court noted that the plaintiffs concede that there is no legal basis for the First and Second causes of action, and ruled that the Third cause of action--invasion of common law privacy--has no basis. The court found that there is no proof that Dr. Ranawat and Dr. Maak were aware they were being filmed. The Fourth Cause of Action--breach of medical confidentiality--was dismissed as to ABC because U it does not provide health related services and there is no doctor-patient relationship." (R.9). The court upheld the Fourth and Fifth causes of action against the hospital and Dr. Schubl. U[They] have not established that they would not be liable in tort for breach of duty based on physician-patient relations. (R.9). The Appeal to the Appellate Division The hospital, Dr. Schubl, and ABC appealed to the Appellate Division, First Department. That court reversed the lower court to the extend of dismissing the remaining causes of action against the three remaining defendants. 19 The Appellate Division ruled that the defendants' conduct in producing and televising the program that included a pixilated image of Mark Chanko, who was not identified, Hwas not so extreme and outrageous as to support a claim for intentional infliction of emotional distress." The court further ruled that the action against the hospital and Dr. Schubl for breach of the duty not to disclose personal information could not stand, Hsince no such information regarding plaintiffs' decedent was disclosed." Leave to Appeal to This Court The plaintiff moved before the Appellate Division for reargument, or in the alternative for permission to appeal to this Court. By order entered March 24, 2015, the Appellate Division granted permission to appeal to this Court. (R.251). ARGUMENT POINT I THE ALLEGATION OF THE COMPLAINT THAT THE HOSPITAL AND A DOCTOR GAVE A TELEVISION FILM CREW ACCESS TO PRIVATE MEDICAL INFORMATION WITHOUT THE CONSENT OF THE PATIENT STATES A CAUSE OF ACTION FOR BREACH OF PHYSICIAN- PATIENT CONFIDENTIALITY. Since the 19th century this court has given a broad and Hliberal interpretation" to the confidentiality which attaches to the physician-patient relationship. Eddington v. Mutual Life 20 Ins. Co., 67 N.Y. 185, 194 (1876). The order on appeal is not a mere retreat from this robust approach. It obliterates it. Faced with a situation in which a hospital and a doctor have, without the consent of the patient, provided a television film crew access to confidential medical information, the Appellate Division forgives the breach because the later television broadcast of the confidential information attempts to conceal the identity of the patient. The Appellate Division, however, has overlooked that when determining whether a breach of confidentiality has occurred the law looks to what the doctor and hospital disclosed to the television crew, and not to what the television company later decided to broadcast. If upheld, the order on appeal augurs ill for the future of medical confidentiality because it shifts responsibility for confidentiality from the medical profession to a television station. The Court should set its face against this surrender of confidentiality, and reverse the order on appeal. Breach of Confidentiality There is in New York a common law right of action for breach of the fiduciary duty to maintain the confidentiality of patient medical information. Doe v. Guthrie Clinic, Ltd., 22 21 N.Y.3d 480 (2014); Burton v. Matteliano, 81 A.D.3d 1272, 1274 (4th Dept. 2011). The Court, however, has not addressed the full scope of a doctor's professional confidentiality obligations except to note that they are not coterminous with the evidentiary physician- patient confidentiality under CPLR § 4504. Lightman v. Flaum, 97 N.Y.2d 128, 136 (2001). A doctor's professional confidentiality obligations are broader than the evidentiary privilege. The evidentiary privilege of § 4504 covers information acquired while a doctor is attending a patient and "which was necessary to enable [the doctor] to act in that capacity." On the other hand, "information obtained in a professional capacity but not necessary to enable the physician to fulfill his or her medical role is a protected confidence, the disclosure of which constitutes professional misconduct in the absence of patient consent or legal authorization." Lightman v. Flaum, 97 N.Y.2d at 136 (citing Education Law § 6530(23) and 8 NYCRR 29.1[b][8]). CPLR § 4504 does not, therefore, establish the parameters of a doctor's fiduciary relationship. Lightman v. Flaum, supra. In this case the Court need not determine the full breadth of a doctor's professional confidentiality obligations because all of the breaches alleged here relate to communications which would be privileged under CPLR § 4504. 22 Respondents concede that New York recognizes a cause of action for the breach of the doctor-patient duty of confidentiality. Hospital Reply Brief, Appellate Division at 2. Because it is undisputed here that a doctor's and a hospital's disclosure of communications deemed confidential under § 4504 would be actionable in a civil case, an examination of this Court's rulings regarding what is confidential under § 4504 is, therefore, appropriate. The Precedential Background Questions regarding the scope of medical confidentiality can arise in a variety of contexts such as trial testimony or the subpoena of medical records as part of a grand jury investigation. But whatever the context, the Court has strongly endorsed the view that the information and activities embraced by confidentiality are very broad. While physician-patient confidentiality was unknown to the common law, Camperlengo v. Blum, 56 N.Y.2d 251,254 (1982), early in the 19th century the Legislature created it by statute in a form that remains intact today in CPLR § 4504, which states in pertinent part: 23 II (a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.1I Medical confidentiality is broader even than the confidentiality of the attorney-client relationship: while the attorney-client privilege applies to information conveyed by a client to an attorney, medical confidentiality applies to "any information" a doctor acquires while attending a patient, People v. Decina, 2 N.Y.2d 133, 144-145 (1956), a point the Court underscored in the 19th century: IIWhen [the statute] speaks of information it means not only communications received from the lips of the patient but such knowledge as may be acquired from the patient himself, from the statement of others who may surround him at the time, or from observation of his appearance and sYmptoms. Even if the patient could not speak, or his mental powers were so affected that he could not accurately state the nature of his disease, the astute medical observer would readily comprehend his condition. Information thus acquired is clearly within the scope and meaning of the statute." Eddington v. Mutual Life Ins. Co., 67 N.Y. at 194-195. See also, Renihan v. Dennin, 103 N.Y. 573 (1886)(the statute applies to lIany information" a doctor acquires while attending a 24 patient and is not confined to II information of a confidential nature") . with this liberal approach the Court ruled in the 19th century that doctors cannot testify to statements made to them by an insured when it is contended that those statements contradict the insured's statements on an insurance application, Eddington v. Mutual Life Ins. Co., supra; that a doctor cannot testify to his observations of the condition of his patient in a will contest, Renihan v. Dennin, supra; that for purposes of confidentiality there is no IIdistinction between disclosure of ailments by word of mouth and such disclosure by exhibition of the body" because confidentiality extends to what a doctor IIdiscovers while making an examination of his patient for the purpose of treatment." Nelson v. Village of Oneida, 156 N. Y. 219, 223, 224 (1898). In the 20th century the Court did not retreat from this liberal approach, ruling, for example, that physician-patient confidentiality is not limited to judicial proceedings, but can be invoked in response to a legislative inquiry, Matter of the City Council of the City of New York v. Goldwater, 284 N.Y. 296 (1940); that in a criminal case statements made by the defendant to a doctor regarding his past medical history are confidential, People v. Decina, supra; that in a criminal case a hospital's 25 compliance with a grand jury subpoena seeking the names of people treated for stab wounds would violate physician-patient confidentiality, Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130 (1983); and that confidentiality survives the death of the patient, Prink v. Rockefeller Center, 48 N.Y.2d 309,314 (1979). The Court also ruled that diagnostic tests, such as a blood alcohol test, are confidential, explaining that "any medical information acquired by the physician through the application of skill obtainedinformation professional statute .... Quite or clearly, knowledge the is protected by the by defendant's physician in administering a blood alcohol test to defendant was the product of professional skill and knowledge and would not have been apparent to a layman uninitiated in the medical arts." Dillenbeck v. Hess, 73 N.Y.2d 278, 284 n.4 (1989). The Court further noted that the rationale for confidentiality was to avoid discouraging patients from seeking medical assistance; to relieve doctors of the dilemma of choosing between the legal duty to testify and the duty to keep the confidences of a patient; and the "need to protect the privacy expectations of patients." Id. at 285. 26 The Court's "broad and liberal construction" of medical confidentiality, Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d at 134, has carried into the 21st century. In Matter of Grand Jury Investigation in N.Y. County, 98 N.Y.2d 525 (2002), the Court reaffirmed that a broad and liberal construction must be given to the doctor-patient privilege, Id. at 530; reaffirmed the rational for the privilege, including protection of "patients' reasonable privacy expectations against disclosure of sensitive personal information," Id. at 529; and made clear that the privilege applied to hospital emergency room medical care. Id. at 532 ("Patients should not fear that merely by obtaining emergency medical care they may lose the N. Y. 3d confidentiality of their medical records and their physicians' medical determinations"). And only recently, the Court declined to create a judicial exception to medical confidentiality because the matter involved the sexual abuse of a minor. People v. Rivera, (May 5, 20 15 ) . In sum, since the 19th century this Court, in both civil and criminal cases, has given a broad construction to the doctor-patient evidentiary privilege to include not only what a patient tells her doctor, but what the doctor's expert eye discerns from his observations of the patient, what his expert 27 understanding of diagnostic tests tells him, and what treatment the doctor provides the patient. While the common law right of action for breach of the fiduciary duty to maintain the confidentiality of patient medical information, is not based on the evidentiary doctor- patient privilege, Lightman v. Flaum, supra, the privilege does inform the nature of a doctor's fiduciary duty. In this case it is not disputed that a doctor would breach his fiduciary duty if, without the consent of the patient, he disclosed information which would be subject to the evidentiary privilege. An examination of the conduct of the defendant doctor and hospital plainly shows that they disclosed to a television film crew medical information protected by the evidentiary privilege. The Disclosures in This Case The medical disclosures here are alleged in the amended complaint and appear in the DVD submitted by the defendants in support of their motion to dismiss. (a) The Amended Complaint The amended complaint alleges a doctor-patient relationship between Mark Chanko, as patient, and Dr. Schubl and the hospital. (R.36 ~~20-2l). 28 The amended complaint further alleges that neither patient Mark Chanko, nor his family members, was aware that ABC was recording Mark Chanko' s treatment, and neither the patient nor his family consented to the recording. (R.37 ~28). The amended complaint then alleges: li49. That defendants unnecessarily, recklessly, willfully, maliciously and 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 for broadcast and dissemination to the public in an episode of that television show." (R.42). liS1. 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). At this stage of the litigation the allegations of the complaint are assumed to be true, Leon v. Martinez, 84 N. Y. 2d 83, 87 (1994), and those allegations plainly state a claim for breach of medical confidentiality: without the consent of the patient the defendant doctor and the hospital disclosed the diagnosis and treatment of Mark Chanko to the ABC camera crew 29 and allowed the crew to video- and audiotape the diagnosis and treatment. Since the 19th century a patient I s medical condition and the treatment prescribed for that medical condition are privileged communications. The allegation that without the consent of the patient this medical information was disclosed to a television film crew plainly states a cause of action for breach of a doctor's and a hospital's f iduciary duty to keep this information in confidence. (b) The DVD In support of the motion to dismiss, the defendants submitted a DVD of the ABC public broadcast which contained footage relating to patient Mark Chanko. While this edited DVD is not the sort of "documentary evidence" which can provide the basis for dismissal of the complaint, infra Point II, it actually supports the allegations of the complaint by showing the breach of confidentiality on the screen. When on a motion to dismiss pursuant CPLR § 3211(a) (7) there is before a court evidentiary material in addition to the complaint, the question is not whether the plaintiff has stated a cause of action, but whether he has a cause of action: "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been 30 shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, ... dismissal should not eventuate." Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977); see also, Leon v. Martinez, 84 N.Y.2d at 88. A viewing of the DVD plainly shows the disclosure of confidential medical information to a television camera crew. First, the DVD confirms that a physician-patient relationship existed between Mark Chanko and the hospital and Dr. Schubl. A voice of the ambulance personnel reports he is bringing the patient to the hospital. The DVD shows Mr. Chanko in the operating room of the hospital's emergency room, Dr. Schubl is called to attend to him, and says to the camera "he has a severely injured leg." (38:34 to 38:41)1. Dr. Schubl is then seen and heard in the operating room attending to Mr. Chanko. Second, Mr. Chanko is conscious: he is heard speaking and a nurse is shown speaking to him. (38: 50 [nurse]: "We're going to get you some pain medicine, okay?"; 38:52 [Chanko]: "Did you speak to my wife?"). Third, Dr. Schubl is seen and heard providing his diagnosis of the patient and his proposed treatment: 1 The numbers refer to the minute and second of the DVD. (R. 48). The time stated here may be off by a second or two. 31 llHave we got blood pressure yet? ... Get him something for pain. His pressure can handle it ....We need vascular. We need general. We need ortho. That leg's got to come off .... That pelvis needs to be stabilized. He may need angio. ll (38:45 - 39:01). Dr. Schubl is again seen and heard giving his diagnosis and treatment: llGet some more blood, somebody .... That right leg is going to get an 'x-fix' on his pelvis and a laparotomy .... Does anybody have a pulse? ... Someone check for a pulse. We need a shocker .... He's breathing. He's doing something. I've got a pulse and he is moving so something's working. He is back for a second .... II Someone prep one of his shoulders. See if he's got a pulse. [Nurse: He doesn't]. His pelvis is broken, that needs to be fixed. His leg needs to come off eventually. His belly needs to be open to find out what is bleeding inside. Right now, his heart stopped, so none of that is going to happen unless his heart starts again. That belly is full of blood. He's got 2 liters. ll (39:08 - 39:13; 41:45 - 41:55; 42:04 - 42:48) Finally, Dr. Schubl asks, II Anybody have problems calling it?ll--the patient is dead. (42:48). plainly, Dr. Schubl acquired all of this information II in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." CPLR § 4504(a) . Fourth, there is a video shot of the monitor showing Mr. Chanko's vital signs (39:21). 32 This type of diagnostic information is a product of professional skill and knowledge and is a privileged communication. Dillenbeck v. Heck, 73 N.Y.2d at 284 n.4. In sum, confidential medical information is contained in the DVD of the broadcast, and the DVD actually confirms that the hospital and Dr. Schubl permitted ABC to acquire this confidential patient information. The DVD also shows that ABC personnel beyond the film crew in the emergency and operating rooms saw the footage. In addition to the unnamed film crew, the credits in the DVD of the program aired by ABC show that at least 13 people viewed the film crew's raw footage as the final footage to be aired was selected and edited: "produced by TERENCE JAMES" (1:12) "edited by FAITH JONES" (1:19) "Supervising Producers Erica Baumgart Chris Perera" "Senior Producer Monica DelaRosa "Broadcast Producer Andy Genovese "Segment Editors Pagan Harleman Cindy Kaplan Rooney Jon Baskin Daniel Dawkins M Watanabe Milmore Peter Schmuhl 33 nExecutive Producer Terence Wrong" (58:53 - 59:07) nIt is common knowledge television programs ... shoot more footage than necessary and edit the tape they collect down to a brief piece." Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F. 3d 556, 563 (5th Cir. 1997). A hospital and a physician are liable for a violation of medical confidentiality when their conduct makes the risk of a violation nreasonably foreseeable." Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d at 485. It was reasonably foreseeable to the defendant doctor and hospital that more ABC personnel than the film crew would view and edit the crew's raw footage before the program was publicly broadcast. On its face the amended complaint alleges a cause of action for breach of the duty to maintain the confidentiality of personal medical information, and on its face the DVD provides a visual and aural confirmation of the breaches. A viewing of the DVD makes inexplicable the determination of the Appellate Division that no information about Mark Chanko was disclosed. (c) The Doctor's Secret Recording The complaint alleges that the hospital and the doctor disclosed confidential medical information to an ABC camera crew (and foreseeably to others at ABC). We know from the affidavits 34 of plaintiffs' counsel, from the affidavits of the plaintiffs, and from the edited DVD that the doctor and the hospital allowed the camera crew into the operating room to videotape and record the diagnosis and treatment of Mark Chanko. We also know from the affidavits and the edited DVD that after Mark Chanko's death in the emergency room Dr. Schubl entered the hospital room where the family was waiting to speak with him. Conversations between the treating physician and the patient's immediate family regarding the diagnosis and treatment of the patient are privileged communications and the family members cannot be required to disclose the content of those conversations. Prink v. Rockefeller Center, 48 N.Y.2d 309, 314 (1979); Inger M. v. Hillside Children's Center, 17 A.D.3d 293, 295 (1st Dept. 2005); Hobbs v. Hullman, 183 A.D. 743 (3rd Dept. 1918). We now know that the doctor was secretly wired to record (and apparently transmit to the camera crew) his conversation with the family. Doctor-patient confidentiality survives death. Prink v. Rockefeller Center, 48 N.Y.2d at 314. A portion of that secretly recorded conversation is heard on the DVD. At this pre- discovery stage ABC and the doctor have not disclosed the full content of the recorded conversation, but common experience 35 would indicate that the family would have asked about the doctor's diagnosis of Mark Chanko's condition, would have asked about the unsuccessful medical efforts to save his life, and that the doctor would have responded to their questions. That conversation about confidential medical information was secretly recorded and transmitted to ABC. The allegations of the complaint that confidential medical information was given to ABC must, at this stage, be accepted as true. It was, therefore, particularly inappropriate for the Appellate Division to dismiss the complaint at the prediscovery stage when the full content of the secretly recorded privileged conversation with the family is unknown. * * * It may be that the Appellate Division's determination to dismiss the complaint because personal information about Mark Chanko was not disclosed, was based on the DVD provided by the defendants in support of their motion. But if that is so, the determination is factually incorrect because the record shows that members of the public did recognize that the patient in the DVD was Mark Chanko. (R.66). 36 The determination of the Appellate Division is also worrisome for other reasons. By focusing on what the edited DVD showed of Mark Chanko's identity--what ABC chose to broadcast to the public--and not focusing on, or even addressing, what the doctor and the hospital disclosed to ABC, the Appellate Division shifted from the medical profession to a television station the responsibility for protecting confidential medical information. As this Court has made clear since the 19th century, the focus of medical confidentiality is on medical personnel: what they learn while diagnosing and treating patients and what they can or cannot disclose to individuals and institutions outside the medical profession. In this case the hospital and the doctor breached the trust patients and society repose in doctors and hospitals when the defendants made unauthorized disclosures of confidential medical information to a television camera crew. Because the amended complaint states a cause of action against the doctor and the hospital for breach of the fiduciary duty to maintain the confidentiality of patient medical information, and the additional materials such as the edited DVD support that claim, the order on appeal should be reversed and the amended complaint reinstated. 37 POINT II ABC'S DVD--AN EDITED VERSION OF ALL ITS FILM CREW SAW AND RECORDED--IS NOT "DOCUMENTARY EVIDENCE" UNDER CPLR § 3211(a) (1) WHICH CAN PROVIDE THE BASIS FOR DISMISSING A COMPLAINT. A motion to dismiss a complaint pursuant to CPLR § 3211(a) (1) on the ground that the action is barred by "documentary evidence" may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326 (2002); Held v. Kaufman, 91 N.Y.2d 425, 430-431 (1998). The edited DVD submitted by the defendants in support of their motion to dismiss is not "documentary evidence" under § 3211(a)(1), and rather than utterly refuting the plaintiffs' claims it affirms the allegations that the defendants breached their fiduciary duty to maintain the confidentiality of patient medical information. The Appellate Division's reliance on the DVD in dismissing the complaint was, therefore, erroneous. (a) Edited DVD Not Documentary Evidence In support of the motion to dismiss pursuant to § 3211(a) (1) the defendants submitted a DVD of the NY Med program broadcast on August 21, 2012. (R.48). Counsel's accompanying affidavit asserted that the DVD is "A true and correct copy of the Broadcast." (R.31 '4). 38 But while the DVD submitted by the defendants may accurately show what was broadcast on August 21, 2012, it does not purport to show all that the defendants disclosed to the ABC camera crew, nor all that was seen and heard by the camera crew in the hospital on April 29, 2011. To authenticate a videotape or DVD there must be evidence from the cameraman that the video or DVD "correctly reflects what he saw, and that it has not been al tered or edi ted. " Zegarelli v. Hughes, 3 N.Y.3d 64, 69 (2004)(emphasis supplied). "It is common knowledge television programs ... shoot more footage than necessary and edit the tape they collect down to a brief piece." Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F. 3d 556, 563 (5th Cir. 1997). The respondents do not maintain otherwise with respect to the DVD submitted to the court below, and they do not maintain that this DVD is an unaltered, unedited version of all that was seen and heard by the ABC camera crew on April 29, 201l. In order for documentary evidence to utterly refute plaintiff's factual allegations, and conclusively establish a defense as a matter of law, the documentary evidence must be essentially undeniable. Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc., 120 A.D.3d 431 (1st Dept. 2014). 39 That is not the case here. The DVD on its face makes it plain that it is an edited account. In the opening credits the DVD explicitly states it is "edited by Faith Jones," and the segment about decedent Chanko does not purport to show everything the camera crew saw and heard regarding him on April 29, 2011. The hospital records show that the decedent was brought to the emergency room at 00:23 the morning of April 29, 2011 (R. 88), that he was taken to the operating room "immediately," (R.102) and he died at 1:17 (R. 104). All of this has been edited down to about 2 minutes and 40 seconds. Perhaps the most striking example of the sort of editing performed to produce the DVD is the segment regarding the young female swimmer injured in an automobile accident. On screen her mother worries because her daughter has been in the operating room many hours (44: 39, 51: 03), but those many hours have been edited down to the few seconds in the operating room shown in the DVD. Documentary evidence under § 3211(a)(1) must be "unambiguous, authentic and undeniable." Sunset Cafe, Inc. v. Mett's Surf & Sports Corp., 103 A.D.3d 707, 708 (2nd Dept. 2013). While the DVD submitted by the defendants may be all of that with respect to what was broadcast on August 21, 2012, it 40 is none of that with respect to all that was seen and heard by the camera crew with respect to Mark Chanko on April 29, 2011. It, therefore, should not be the basis on which to dismiss a complaint under § 3211(a)(1). (b) DVD Does Not Utterly Refute the Complaint On its face the DVD does not utterly refute the allegations of the complaint. As discussed, supra p. 31-33, the DVD actually confirms the allegations of the complaint: -the DVD confirms that a physician-patient relationship existed between Mark Chanko and Dr. Schubl and between Mark Chanko and the hospital. -the DVD confirms that Dr. Schubl disclosed to the camera crew his diagnosis of his patient and his proposed course of treatment: Dr. Schubl is seen and heard diagnosing that the patient's pelvis must be stabilized; one of his legs must be amputated, and his belly is filling with blood (39:01 - 39:16). Dr. Schubl is again seen and heard diagnosing his patient: the pelvis is broken; the leg needs to come off eventually; his belly is full of blood--he' s got 2 liters; his belly must be opened to find out what's bleeding; and /lcalling it"--the patient is dead. (41:45 - 41:55; 42:04 - 42:48). plainly of all this is information Dr. Schubl acquired /lin attending a patient in a professional capacity, and which was 41 necessary to enable him to act in that capacity," CPLR § 4504(a), and it plainly confirms that he disclosed confidential medical information to the camera crew. And as noted, this edited DVD does not purport to show all that was disclosed to the camera crew. The Appellate Division noted the "pixilated image" of Mark Chanko in the DVD, and ruled that the action against the hospital and Dr. Schubl for breach of the duty not to disclose personal information could not stand, "since no such information regarding plaintiffs' decedent was disclosed." Not only is that conclusion plainly erroneous in light of what is actually seen and heard on the DVD, but an edited and incomplete version of what was disclosed to the camera crew is not the sort of documentary evidence which can provide the basis to dismiss a complaint. The Appellate Division's reliance on the DVD as grounds for dismissal was erroneous. The order on appeal should be reversed, and the complaint reinstated. POINT III PLAINTIFFS HAVE A CAUSE OF ACTION FOR THE INFLICTION OF EMOTIONAL DISTRESS BY THE DOCTOR AND BY THE HOSPITAL. The tort of intentionally inflicting emotional distress has four element: (i) extreme and outrageous conduct; (ii) intent to 42 cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 (1993). While called "intentional" infliction of emotion distress, a defendant need not actually intend to inflict the distress. It is sufficient if a defendant disregards a substantial probability of causing such distress. Id. The Appellate Division dismissed this cause of action because the conduct alleged "was not so extreme and outrageous as to support a claim for intentional infliction of emotional distress." That conduct will be so extreme and outrageous as to sustain a claim will be rare. Howell v. New York Post Co., Inc., 81 N.Y.2d at 122. But plainly, there is conduct which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303 (1983). This is such a case. A doctor's disclosure of confidential medical information "shocks our sense of decency and propriety." Davis v. Supreme Lodge Knights of Honor, 165 N.Y. 159, 163 (1900); Dillenbeck v. 43 Hess, 73 N. Y. 2d at 285. It is particularly shocking when the disclosure is made to a television camera crew for public broadcast. Particularly shocking and indecent is that a doctor would secretly record for broadcast his report to a patient's family members that their loved one has died and his privileged communications with them regarding his diagnosis and treatment of the patient. This is not only outrageous and indecent; some would characterize it as contemptible. An employer who installs a hidden video camera in the company's restroom to videotape female employees using the restroom, engages in extreme and outrageous conduct. Sawicka v. Catena, 79 A.D.3d 848 (2nd Dept. 2010). While the instant case does not have the same element of sexual voyeurism as Sawicka, the doctor's hidden microphone is just as shocking and arguably more so as it relates to the death of a loved one. Roach v. Stern, 252 A.D.2d 488 (2nd Dept. 1998)(radio personality's comments on cremated remains of a broadcast guest's sister outrageous and "beyond the bounds of decent behavior"). 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--particularly in a civilized community such as 44 New York which has placed such a high value on medical confidentiality since the 19th century. The part of the order dismissing the claim for infliction of emotional distress should be reversed, and that claim against the doctor and the hospital should be reinstated. POINT IV THE PLAINTIFF HAS A CLAIM THAT ABC IS AN AIDER AND ABETTOR OF THE TORTS COMMITTED BY THE DOCTOR AND THE HOSPITAL, AND THAT ITS OWN BROADCAST INFLICTED EMOTIONAL DISTRESS. While the wrongful disclosure of confidential medical information rightfully focuses on the doctor and the hospital which made the disclosure, supra, that focus does not absolve the American Broadcasting Company of liability. While ABC is not a medical provider who can itself breach medical confidentiality, it can be liable for aiding and abetting those who do. A claim that a defendant aided and abetted a tort requires an allegation of the underlying tort, a defendant's actual knowledge of the underlying tort, and an allegation that the defendant lent substantial assistance to the tortfeasor. E.g., Oster v. Kirschner, 77 A.D.3d 51, 55 (1st Dept. 2010); see also, Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43, 57 (1999). 45 plainly, ABC knew of the underlying torts--it knew that it and the doctor and the hospital had not received patient consent to videotape the disclosure of confidential medical information; and it lent substantial assistance to the disclosures: it put its camera crew in the operating room and furnished the technical equipment needed to videotape and record what occurred there; and it similarly provided the equipment which allowed the doctor to secretly record his privileged communications with the family after the death of Mark Chanko. In short, it aided and abetted the breach of medical confidentiality, and it aided and abetted the emotional distress the actions of the doctor and the hospital inflicted on the plaintiffs. And its own broadcast of this ill-gotten information constituted its own infliction of emotional distress on the plaintiffs. Whether ABC actually induced the breach of confidentiality and the doctor's and the hospital's infliction of emotional distress must await discovery. At this stage of the litigation-- the defendants have not filed Answers--the agreement between the hospital and ABC has not been disclosed. It is, therefore, unknown what the hospital and its personnel were expected to permit ABC to film in order to get "this kind of publicity." (R. 55). But from what is now known, there is a claim that ABC aided and abetted the breach of medical confidentiality and the 46 infliction of extreme emotional distress. The causes of action against ABC should be reinstated. CONCLUSION THE ORDER ON APPEAL SHOULD BE REVERSED AND THE COMPLAINT REINSTATED. Respectfully su~ed' b~~ June 24, 2015. 47