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Undeterred by a July 15 ruling that there is no constitutional right of privacy from the media, lawyers for hospital patients who claim they were tricked into appearing on TV are pursuing a national class action against the reality show, “Trauma: Life in the ER.” The Monmouth County, N.J. suit, on behalf of thousands of patients filmed for The Learning Channel program since 1998, claims that the producers and hospitals engaged in fraud to obtain the patients’ consent to have their horrific injuries filmed for public entertainment. The filming also violated statutes requiring privacy for patients, argue plaintiffs’ lawyers Gerald Clark, of Lynch Martin in Shrewsbury, N.J., and Raymond Gill, of Gill & Chamas in Woodbridge. Jersey Shore Medical Center in Neptune is the only hospital named as a defendant. Clark’s previous suit, filed last year against the filmmakers only, suffered a setback when the rights of the show’s film unit were upheld under the New Jersey Shield Law. That ruling, in turn, made it more difficult for Clark to obtain the evidence he wants to buttress the fraud and invasion of privacy claims against the producers. The court ruled in Kinsella v. NYT Television, A-2985-02T2, that NYT, a subsidiary of The New York Times, need not give plaintiff Joseph Kinsella a copy of video footage it took of him on July 9, 2001, while he was being treated at Jersey Shore for severe injuries suffered in a fall. Judge Stephen Skillman wrote for the unanimous court that the footage is information covered by the Newsperson’s Privilege Law, N.J.S.A. 2A:84-21, which is designed to protect news organizations from intrusive inquires that hamper the free flow of information. As media lawyers had predicted, the court reversed a trial judge who had found that the right of privacy was rooted in the state and U.S. constitutions. Skillman wrote that “plaintiff’s invasion of privacy claim does not have a constitutional foundation that can be invoked to override the protections of the Shield Law.” The appeals judges also rejected Kinsella’s argument that sensational and gory TV shows, which he says include “Trauma: Life in the ER,” are not news programs under the Shield Law definitions. David McCraw, an in-house counsel for The New York Times, says he is gratified that the Appellate Division “saw that an unconventional news show remains a news show and that the shield law applies,” even when the report is not the conventional 6 p.m. news or in a newspaper. Other media lawyers say the opinion adds muscle to a state shield law considered one of the strongest in the country. “All in all, this opinion has the effect of adding a reinforced concrete buttress to an already strong privilege law,” according to John Connell, a partner in Haddonfield, N.J.’s Archer & Greiner. Edward Rogers, a partner in Philadelphia’s Ballard Spahr Andrews & Ingersoll, says the ruling that privacy in such a setting is not a constitutional right is well supported. And the New Jersey Press Association, which entered the case as an amicus, praises the opinion for including dicta that even if the plaintiffs’ claim had a theoretical constitutional basis, it would not necessarily trump the Shield Law. DISCOVERY PREVAILS On the plus side for the plaintiff, the opinion is essentially a discovery ruling, and it does not preclude him from pursuing his common law fraud and invasion of privacy claims. What’s more, any footage NYT Television plans to use in its defense must be provided in discovery, the court ruled. The court also suggested that Kinsella might have difficulty sustaining a count in the complaint that says NYT Television violated the New Jersey Wiretapping Act by recording his conversations with his doctors without his permission. First, the court noted that the law permits the recording of conversations if one party consents, and in this case the hospital did. Second, there was no indication that the plaintiff or any other person had a reasonable expectation of privacy during conversations in the emergency room, the court said. Clark won’t say whether there will be an appeal, but the newly filed class action suit, and others on behalf of a half-dozen individuals, suggest he was listening when the appellate judges asked him during oral argument why he hadn’t included the hospital in Kinsella. “The lights must have gone on,” says Times lawyer McCraw, who declines further comment on the new litigation. SHOCK VALUE The named plaintiffs in the suit filed June 24, Castro v. NYT Television, Mon-L-2743-03, are Monmouth County residents Michael Castro, who was stabbed, and Julio Costa, whose hand was severed in an accident. Like Kinsella, they were filmed in July 2001 for “Trauma: Life in the ER.” Clark also filed individual suits on behalf of three other patients filmed at the medical center, one of many hospitals across the country that have opened their emergency rooms to the television show, which usually airs on Monday nights. A thousand more patients are covered by the class action, the suit says. Jersey Shore and NYT Television crewmembers working for the ER show lied that the filming was to be used for doctor training when it was really “free material for a shock cable TV show,” the suit says. “The TV show has grossed hundreds of millions of dollars by exploiting emergency room hospital patients who are typically vulnerable and who are paid nothing for being subjected to intrusions into their private, intimate affairs.” A spokesman for Jersey Shore declines to comment, saying the hospital had only recently been served with the complaints. It is not known why the hospital invited “Trauma: Life in the ER” to film in the emergency room last July, but it is only one of a substantial number of teaching hospitals featured on the show. Doctors who have appeared have said the show demonstrates the effort and dedication that goes into their work. In 2001, for example, Yale-New Haven Hospital in Connecticut trumpeted in a news release, “We’re very excited and honored to have TLC here to showcase the exceptional work of our adult and pediatric emergency departments.” If the allegations in the class-action suit are true, however, the patients’ consent is obtained under false pretenses. Plaintiff Castro, brought to the hospital after being accidentally stabbed, was approached by someone in medical scrubs trying to pass himself off as a medical professional, and tried to get Castro to sign an appearance consent and release, the suit says. He asked that he not be filmed, but five days later after repeated requests and assertions that the film would be used only for training purposes, he signed the form. He also told the defendants he didn’t want certain private details aired. A year and a half later, the suit says, a work colleague approached him and said, “I heard your wife tried to kill you.” “Unbeknownst to Mr. Castro the show had just aired on national television,” the suit says. Other plaintiffs had similar experiences, including one identified as Jane Doe whose AIDS treatment was featured on one of the installments. The suit says a class action is required because thousands of patients may have been filmed for the show, too numerous a group to file as individuals, yet all subject to common legal issues. Two leading New Jersey health care lawyers say they wonder why a hospital — given the growing sensitivity to patient privacy rights — would consent to filming. “It’s surprising,” says J. Anthony Manger Jr., a partner at Somerville’s Norris McLaughlin & Marcus. “It’s just not consistent with today’s conceptions.” Getting patient consent before filming seems almost mandatory, he says. Even before recent revisions strengthening the privacy provisions of the Health Insurance Portability and Accountability Act of 1996, patient bills of rights in various states required great care before unauthorized release of patient information, says Lisa Taylor, a partner in Newark’s St. John & Wayne. One way a hospital could avoid potential liability would be to obtain a promise of indemnification by the television company. That’s what a hospital did in the only known previous case against the producers of “Trauma: Life in the ER,” according to the plaintiff’s lawyer in that suit, Lionel Hernholm Jr., a partner in San Diego’s Sullivan Hill Lewin Rez & Engel. Hernholm represented R. Shaun Carter, who in 2000 filed an invasion of privacy suit against NYT Video and Scripps Mercy Hospital, where he was treated after a reaction to drugs ingested at a communal bathhouse. The treatment, including pictures of a dazed Carter in his underwear, appeared on the show. In an unpublished opinion, a California appeals court in Carter v. The New York Times Company, D038091, cited freedom of speech laws and let the media defendants out of the case. But even when the suit against the hospital continued, it was the Times and its lawyers that provided the defense, Hernholm says. Indeed, in an interview on Wednesday, he had trouble remembering the name of the hospital’s lawyer. The case settled for a sum Hernholm won’t divulge because of a confidentiality agreement. Citing the agreement, Times lawyer McCraw declines to discuss the indemnification issue.

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