The article appeared yesterday on a website called The Intercept. Its headline breathlessly proclaimed the conclusion: How the Trump Administration suppressed photography of the pandemic. The facts in the article are slightly more complex.
On May 5, Roger Severino is the director of the Office for Civil rights in the Department of Health and Human Services, issued guidelines advising that it’s not sufficient for media or film crews to film patients even if they mask the patients’ identity. This presumably includes still photography. The prohibition is waived if each patient provides authorization first.
In other words, if you want to photograph an overwhelmed ICU, you must first get a signed HIPAA waiver from every patient in that ICU and you must also get them from anyone else whose Protected Health Information could be revealed. The implication is that the Trump administration is suppressing coverage of the pandemic at its ground zero–hospitals where the patients are suffering and dying.
Its case would be stronger if there were some internal communication that showed HHS specifically stating an intention to suppress coverage. It does not satisfy the headline’s statement that the Trump administration is suppressing media coverage. That doesn’t mean its not. Donald Trump’s disdain for any media coverage that doesn’t incessantly fawn over him is well-known.
The article points to a reality show called NY Med, starring Dr. Mehmet Oz, that showed a blurred-out patient in the emergency room who later died. The family later recognized his voice. The hospital, New York-Presbyterian Hospital, was later fined $2.2 million. By 2016, HHS had put the guidelines in place that Severino confirmed in his May 5 guidelines. But it dismisses this case because the images were shown on a reality, show, not news coverage.
The Intercept re-enforces that distinction, asserting that journalist tend to be more responsible than Dr. Oz and company. It says that the Trump administration, through Severino’s guidance, is suppressing coverage that would make the administration look bad and change the public attitude toward how we handle Covid-19.
The article then quotes a number of medical personnel who want the pictures and the story out there. Given the stories of people dying of Covid while denying its existence, that makes sense.
The articles also points out the risk involved with potential for liability involving leaks of personal data. Anyone advising hospitals around risk would be hard pressed to allow that level of risk. By relaxing the guidelines, Mr. Severino could presumably reduce that risk, by making hospitals less responsible for sanctions should a breach occur.
There’s no question that pictures of the suffering from inside hospitals would add emotional impact to the stories of what happens. Most of the images so far have been of exhausted medical personnel with mask lines imprinted on their faces from wearing them while they worked.
But the concern over patient privacy isn’t trivial, either. No one knows what the long-term impact of Covid cases may be. It’s possible (not necessarily likely) that in a few years, residual effects of the disease could make a Covid patient less attractive as an employee. If that happens, and if information leaked through that could identify someone who was suffering in an ICU, that would harm that patient and create a liability for any facility that allowed that information out, innocuous as it might be.
As much as Dr. Oz slinking around ERs in New York City looking for real tragedy to make money on seems distasteful, given 2012 guidelines, blurring a patient but not masking his voice might seem reasonable. However, it caused pain for his family and cost the hospital more than $2 million.
And when this gets sorted out, there are any number of personal injury attorneys who’ll broadcast their selfless mission in life to fight for your rights at your most (tears forming now) desperate hour.
While it’s possible (maybe even likely) that the administration is trying to limit coverage, the article doesn’t fully make the required connection. And you can’t just wipe away privacy concerns with the assertion that most media would handle things responsibly–especially considering that the media is not covered by HIPAA, but the care facilities are.