Physician-patient privilege is a serious matter. HIPAA specifies guidelines for maintaining patient privacy even posthumously. While a patient is living and receiving healthcare, statutes surrounding physician-patient privilege protect a patient’s medical records. This is per official HIPAA guidelines and any laws applicable in the state the patient resides. In the case of this article, we’ll explore the state of Florida’s specific guidelines relating to physician-patient privilege when the patient dies.
It’s common for both family strife and legal troubles to arise when a patient dies after an accident or illness. The grief is overwhelming for a family, so obtaining medical records on behalf of the person who passed away causes a great deal of anguish. However, unless the patient dies of natural causes, their medical records are legally necessary for the surviving family members to pursue any legal action. According to Florida’s state law, there are several things that factor into the determination of medical records release in a wrongful death. One of these factors is physician-patient privilege.
No easy access to medical records
In certain states, there are laws allowing the patient’s next of kin or to waive physician-patient privilege. This is only in order to pursue the necessary legal action to provide for a family after the death of a family member. Waiving physician-patient privilege does not apply to simply grant access to the family so they may read the records.
What is “waiver of privilege”?
It’s important to understand the legal principle of waiver of privilege in full. It’s another area of Personal Injury law that becomes complex without a Board Certified lawyer. In a waiver of privilege, many state laws governing public health only require the disclosure of medical documentation. Records include imaging: CT, x-ray, MRI, lab results such as bloodwork, surgical notes and pathology reports. The disclosure applies only to hospitals and other physicians with direct knowledge of the patient’s case.
How does a Personal Injury lawyer factor into physician-patient privilege?
Physician-patient privilege laws do not automatically provide disclosure on the behalf of the lawyer representing the family. Thusly, the family must have a representative to gain access to the patient’s medical records. During litigation, the family in a wrongful death lawsuit will have a less difficult time accessing the patient’s records if they are credible when making their request.
This means a family’s lawyer issues a legal request for records. In a letter, a lawyer will state the reason for the request is to ensure the family’s livelihood in the event of future litigation. Making demands by phone or e-mail is inappropriate. Showing up at the hospital or physician’s office to demand the records is also not in anyone’s best interest. These actions only cause more anguish for a 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.
What constitutes HIPAA law?
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 necessary to obtain medical documents.
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, the hospital provides necessary documentation to the family’s lawyer, granting them the access they need to pursue litigation on behalf of the surviving family members. The guidelines ensure there is no “over revealing” the patient’s medical history. This means, documents do not provide any irrelevant information in the case. For example: if the wrongful death occurs at the victim’s workplace due to TBI, his or her dental records wouldn’t be necessary for release. “Relevant” would is key word when pursuing litigation that requires a patient’s medical records.
What are “combined actions”?
Usually, patient-privilege is waived in regard to medical treatment related to Personal Injury when the patient’s family seeks to pursue legal action. This can be for negligence or medical malpractice. This is what’s known to accident lawyers as a “combined action”. While it may seem complex, a lawyer with experience won’t have a problem navigating the principle’s legal requirements.
A combined action takes into account the wrongful death that occurred, and the Personal Injury claim against the insurance company. It’s not uncommon for a wrongful death action to include efforts to seek damages for Personal Injury. This is because the patient may have endured pain and suffering prior to death due to negligence. The negligence may be on the part of a careless doctor, a surgeon, or nurse who fails to uphold a duty of care. When healthcare providers fail to uphold a duty of care, patients may suffer and ultimately die as a result.
Who protects the privacy of wrongful death victims?
There is a line that exists even when the proper use of combined action applies. This line exists because the patient experienced pain and suffering prior to the wrongful death. They may have become disfigured, suffered an amputation, burn injuries, or fell into a coma. Due to the nature of many wrongful deaths, privacy is necessary to preserve the dignity of the patient. Privacy is also necessary for the dignity of the surviving family members. The good memories of their family member should be what they remember.
To ensure privacy is upheld, family members must provide adequate proof that the victim was suffering outside the scope of injury. For example the reckless behavior of another, coming to physical harm, burns, disfigurement, or assault. Without such proof family cannot access records that aren’t relevant to the lawsuit.
Why is adequate legal representation important in wrongful death cases?
After a wrongful death that has taken a life, the grief is unbearable. That’s why retaining a lawyer with experience is necessary right away. Knowing the dignity of the victim is in trustworthy hands can also provide peace of mind to a family. Financial compensation isn’t the most important thing. However, a lawyer with upstanding morals, ethics, and in the trenches experience recovers the maximum amount on their behalf, in hopes it can restore quality of life.