As a general rule of law, while a patient is living and receiving medical treatment, the statutes surrounding physician-patient privilege protect the privacy of a patient’s medical records and history as per official HIPAA guidelines and any other laws that are applicable in the state the patient resides. In the case of this write-up, we’ll be exploring the state of Florida’s specific guidelines in reference to physician-patient privilege after death.
It’s common for both family strife and legal controversy to arise rapidly when a patient dies suddenly; either in an accident or of illness. The grief can be overwhelming for a family, and obtaining medical records on behalf of the person who passed away can cause a great deal of anguish. However, unless the patient died of natural causes, their medical records are legally necessary (during Discovery) for the surviving family members to pursue further legal action. According to Florida’s state law, there are several things that must factor into the determination of medical records release in a case of a wrongful death. One of these factors is physician-patient privilege.
In certain states, there are laws that allow the deceased’s next of kin or a previously appointed representative to waive the physician-patient privilege in order to disclose medical records. This is only in order to pursue the necessary legal action necessary to provide for a family after the death of a loved one. It does not apply to simply grant access to the family so they may read the records.
Waiver of privilege doesn’t mean “no strings attached”
It’s important to understand the legal principle of waiver of privilege in full; it is another area of Personal Injury law that becomes complex and difficult to navigate without a Board Certified civil trial lawyer’s representation. In a waiver of privilege, many state laws governing public health only require the disclosure of medical documentation (records, imaging–CT, x-ray, MRI–lab results such as bloodwork, surgical notes and pathology reports) only to hospitals and other physicians with knowledge of the deceased’s case or who have treated the decedent in the past.
It’s not as simple as as a family’s legal representation
The physician-patient privilege laws do not automatically provide disclosure on the behalf of the lawyer representing the family and thusly, the family must have a pre-appointed representative to gain access to the deceased’s medical records. During litigation, the plaintiff–or plaintiffs–in a wrongful death lawsuit will have a less difficult time of accessing their loved one’s records if they are forthcoming and truthful when making their request.
This means that by issuing a written request for records stating the reason for the request is to ensure their family’s livelihood in the event of future litigation, most times access to the decedent’s medical records will be released to the pre-appointed representative for the family without extensive hardship. Making demands by phone or e-mail, or showing up at the hospital or physician’s office to demand the records be turned over is not in the best interest of anyone involved and will only cause more anguish for the grieving family. While it’s understandable a family who has lost a loved one wants to understand how this could have happened, it’s important for the family to heed the advice of legal representation and allow the legal process to work in their favor.
HIPAA law and the post physician-patient privilege waiver
In specific instances, a lawyer representing a family, filing the proper motions to bring a wrongful death lawsuit against a hospital, or physician who carries medical malpractice insurance, is enough to achieve the waiver of physician-patient privilege. In a case such as this, no further action may be required to obtain the documents needed to proceed with litigation.
The process that transpires post-waiver is in place to provide only the records that are relevant within the context of the wrongful death lawsuit and nothing further–after death, the patient still maintains their right to privacy. That’s why the waiver, in an effort to protect the decedent’s right to privacy (and is in line with HIPAA law), takes great care to maintain physician-patient privilege wherever possible.
By taking care to abide by these guidelines, a doctor or hospital is able to provide necessary documentation to the family’s appointed legal representative, granting them the access they need to pursue litigation on behalf of the surviving family members without “over revealing” the deceased’s medical history that does not provide any relevant information in the case. For example: this means that if the wrongful death occurred at the victim’s workplace and the wrongful death was due to a TBI, his or her dental records would not be necessary and thusly not released. “Relevant” would be the key word when pursuing litigation that requires a decedent’s medical history.
Accident lawyers’ legalese: what are “combined actions”?
Usually, the patient-privilege is waived in regard to medical treatment related to Personal Injury when the plaintiff (the deceased’s family) seeks to pursue legal action for negligence or medical malpractice. This is what’s known to accident lawyers as a “combined action”; while it may seem complex, an experienced lawyer won’t have a problem navigating the principle’s legal requirements for its proper use.
A combined action takes into account not only the wrongful death that occurred, but the Personal Injury claim made against a defendant as well. It’s not uncommon for a wrongful death action to include efforts to seek damages for Personal Injury. This is because the deceased person may have endured pain and suffering prior to death due to the negligence of the defendant (in this case a hospital, physician, nurse or other healthcare provider); a careless doctor, a surgeon who acted outside of their scope of practice, a nurse who failed in her duty of care all hold a great responsibility to care for the patient and uphold the standard of care throughout their treatment. When a healthcare providers fails to uphold this duty of care, patients may suffer and ultimately die as a result.
Who protects the privacy of wrongful death victims?
There is a line drawn even when the proper use of combined action applies in the case. This line is drawn because the deceased may have endured tremendous pain and suffering prior to the wrongful death, become disfigured or maimed, suffered an amputation, burn injuries, or fell into a coma from which they never recovered. Due to the nature of many wrongful deaths, privacy is strictly maintained to preserve the dignity of the deceased (and the dignity of the surviving family members, in some such cases).
To ensure this privacy is upheld, unless the family members are able to provide adequate proof that the victim suffered outside the scope of the injury that caused the death (i.e.: the reckless behavior of another, being physically maimed, burned, disfigured, or assaulted prior to death) they cannot access records that are not relevant to the lawsuit.
The right legal representation is everything
After a wrongful death that has taken the life of a loved one, the grief may be unbearable. That’s why retaining the most experienced lawyer, with a highly trained staff of paralegals, legal assistants, and equally seasoned professionals on their team can remove some of the burden from the family. Knowing the dignity of the deceased is in trustworthy hands can provide an immense amount of peace of mind to a family who has lost something priceless. Financial compensation isn’t the most important thing, but a lawyer will upstanding morals, ethics, and in the trenches experience will recover the maximum amount of what’s owed to them, in hopes it can pave an easier path to healing.