For many Americans, the human impact of the COVID-19 pandemic, which thus far has killed 340,000 (or about one in every 1,000) U.S. citizens, has still been a somewhat abstract exercise in interpreting numbers and percentages.
We read the daily death tolls, watching as the numbers go up and down. As the days pass, we hear more and more about hospitals and ICU units strained beyond capacity. Then, as the months pass, first a distant relative, then a much closer one, then a work colleague, and finally someone from our immediate family falls ill with this virus. We see heartrending anecdotes posted among our social media contacts and we wring our hands when one of our friends tests positive, sending our best wishes and prayers, perhaps unconsciously thanking our own good fortune or God or whoever else we choose to thank that we haven’t caught this thing yet.
We read the stories about people dying on ventilators unable to see their loved ones, of nurses in airtight PPE with bright blue-gloved hands pressing a cell phone to the ear of a dying grandmother so she can hear the voice of her grandchildren one last time. Occasionally we see a news report where someone from a hospital bed with tubes in their nose speaks to a camera and urges everyone watching to be safe. Occasionally—rarely—a post on social media goes viral and we get a glimpse of someone inside an ICU for a few seconds.
And once in a while we see bodies carefully covered under blue tarps wheeled out on gurneys to refrigeration trucks furtively parked in city streets and alleys.
But we seldom really see a more immediate and constant reality: that of the hundreds of thousands of victims of this pandemic gasping for their lives or lying unconscious and wired up, motionless and intubated while on ventilators. Is it possible that if more people had seen the reality of what this virus does that far fewer people would have boldly flaunted travel and gathering restrictions last week, for example, to meet so joyously with families in restaurants, or nonchalantly skipped down airless jetways into planes where the air regurgitated the breath of 50 other passengers into their face for hours? If more Americans had seen the actual consequences, would they be willing to line up face-to-back at political rallies and spew loud paeans to their freedom as they laughed in each others faces?
Peter Maass has written a thought-provoking article for The Intercept that points out that in an age of unprecedented mobility and prevalence of digital imagery, COVID-19 may go down as the most obliquely photographed and filmed pandemic in history. The reason is because of a privacy law that most are familiar with: the Health Insurance Portability and Accountability Act, or HIPAA, as it is widely known. And although Maass does not directly point the finger at the Trump administration for enforcing laws that had the effect of keeping Americans from seeing the horrific reality of the pandemic as it has unfolded in ICU units across the country, he does note with considerable perceptiveness how that so-called “privacy” law has managed to dovetail with the administration’s goals of minimizing the pandemic’s seriousness.
The person most responsible for what Maass characterizes as the reinforcement of HIPAA laws prohibiting journalists from filming even those patients who consent to be filmed during the COVID-19 pandemic is Roger Severino. A religious zealot and conservative Heritage Foundation alumni appointed by Donald Trump to the Department of Health and Human Service’s (HHS) Office of Civil Rights, Severino’s tenure at HHS has been characterized by his embrace of so-called “religiously based” objections to providing Americans with health care. As Maass notes, as the head of “civil rights” at HHS, Severino was placed at a critical fulcrum to decide what could or could not be seen by the American public as the pandemic exploded inside our nation’s hospitals:
As Covid-19 tore through the United States in the spring, a senior official in the Trump administration quietly reinforced a set of guidelines that prevented journalists from getting inside all but a handful of hospitals at the front line of the pandemic. The guidelines, citing the medical privacy law known as HIPAA, suggested a nearly impossible standard: Before letting journalists inside Covid-19 wards, hospitals needed prior permission from not only the specific patients the journalists would interview, but also other patients whose names or identities would be accessible.
The onerous guidelines were issued on May 5 by Roger Severino, who worked at the conservative Heritage Foundation before Donald Trump appointed him to direct the Office for Civil Rights at the Department of Health and Human Services, or HHS.The guidelines made it extremely difficult for hospitals to give photographers the opportunity to collect visual evidence of the pandemic’s severity. By tightening the circulation of disturbing images, the guidelines fulfilled, intentionally or not, a key Trump administration goal: keeping public attention away from the death toll, which has surpassed 300,000 souls.
Maass notes that Severino specifically italicized the language in the guidelines emphasizing the restrictions on media access. No other language in the guidelines was similarly emphasized. The guidelines were also, oddly, accompanied by a veiled warning to hospitals suggesting that they would face lawsuits for failure to comply:
In 2016 and 2018, OCR successfully resolved investigations of covered hospitals’ unauthorized disclosures of patients’ PHI to television film crews. All of the cases concluded with corrective action plans and monetary settlements.
Maass acknowledges that the original HIPAA restrictions were passed prior to the Trump administration, but he also notes that by necessity many of the former restrictions were almost immediately loosened by the same administration in order to prevent the specter of legal liability from inhibiting the treatment of COVID-19 patients by, for example, first responders, who might be treating patients they did not know had been exposed; with doctors and other hospital officials whose restrictions on sharing information with friends and family members of COVID-19 patients were lifted; and for previously imposed security requirements concerning the transfer of medical information.
The one area where restrictions were re-emphasized rather than loosened was the law’s restrictions preventing journalists, “media and film crews” from accessing, photographing, or filming COVID-19 patients.
Maass convincingly outlines how this warning effectively kept hospitals from cooperating with journalists, even in instances where the patients and their families had consented to being filmed or photographed in the hospital. And he notes, tellingly, that the objections came from hospital administrators, not doctors and nurses, who almost uniformly wanted more—not less—attention paid to what was going on inside their ICUs.
Maass implies that the difficulties—and potential risks of screening from view every conceivable piece of personal identification from being filmed or photographed—placed a burden on hospitals that was simply impossible to overcome. Thus, by setting forth such a high standard of “permission” required to film COVID-19 patients, Severino effectively kept hospitals so fearful of lawsuits that they declined any media presence as a matter of course.
And whether intentional or not, Maass also raises the reasonable question as to whether such restrictions helped to keep up the facade of skepticism and blithe disregard of the pandemic’s seriousness; the widespread, Facebook-fed mythology that the virus was nothing more serious than a variant of the “flu”; that only the very old and sick were at risk; and that all of the attending ramifications of this attitude, which dovetailed with Trump’s own relentless messaging to keep businesses open, were impacted by this lack of a photographic and filmed record of what was actually happening.
It isn’t hard to see his point. The searing impact of photography and film on public opinion first became obvious during the Vietnam War, and the U.S. military learned its lesson well. In subsequent wars, particularly those with dubious public support such as Iraq, reporters were hemmed in and restricted from combat zones with the excuse that their personal safety was being preserved. In reality what was being ”preserved” was the military’s one-sided portrayal of the war—specifically the lethal consequences of that war.
As applied to the COVID-19 pandemic, the restriction on visual imagery has had the same effect. Maass quotes art historian Sarah Elizabeth Lewis: “For society to respond in ways commensurate with the importance of this pandemic, we have to see it…For us to be transformed by it, it has to penetrate our hearts as well as our minds. Images force us to contend with the unspeakable. They help humanize clinical statistics, to make them comprehensible.”
As Maass observes:
The unifying principle between repressing photography of a war and photography of a pandemic is that a population that cannot see human carnage will not object as strongly to its perpetuation and will not care as much about the incompetence that brought it on. Hospitals and nursing homes may not have the mendacious intent of the U.S. military, but their actions have a similar effect of making it nearly impossible for ordinary Americans to be confronted with visual evidence of the true cost of the calamity that’s unfolding.
Maass notes that in those rare circumstances where hospitals have allowed access, there have been no publicized privacy breaches on the part of journalists or media. Still, the threat of HIPAA litigation has managed to keep a visual record of what is undoubtedly a public health crisis of the highest magnitude—one that has already killed six times more Americans than were killed in Vietnam—from fully reaching the American public. He also describes the origin of the HIPAA rules against filming or media treatment of non-consenting medical patients (which had its genesis in reality TV programming during the 1990s) and convincingly explains how these restrictions have resulted in hospitals choosing to simply deny media access no matter how reputable the journalist, and no matter how readily the privacy of patients can be maintained.
The old cliche is true that a picture is, indeed, worth 1,000 words. In the context of the COVID-19 pandemic, it’s likely that a picture—or a film—might have been worth 1,000 lives.
Or many, many more.