Wrongful Death Cases: Physician-Patient Privilege

Physician-patient privilege protects the privacy of a patient's medical records. It often becomes an issue after a patient's wrongful death, or passing away due to another's carelessness. There is continuing controversy and debate over the privacy of a deceased patient's medical records. While some believe that a patient's privacy should extend after death, others disagree. They argue that extending the privilege can be dangerous. It may hinder the ability of physicians (or others) to defend themselves in a wrongful death lawsuit.

If you have lost a loved one as a result of a wrongful death, you may want to get their medical records. The health information may be helpful in proving your wrongful death case. Since medical records are protected by law, you may need to overcome physician-patient privilege. Read on for Findlaw's general information on how this privilege works and how you can overcome it. It includes the following:

• What is doctor-patient privilege?
• How can the privilege be waived?
• How does the waiver process work?
• What if wrongful death and negligence claims are combined?
• After a waiver in a combined action, are all records available?

What is doctor-patient privilege?

Physician-patient privilege is a privacy right in the medical context. Under federal and state laws, patients have a right not to have their medical information shared without their consent. The general rule is that a patient's medical records must remain private unless they waive the privilege. Without permission, a physician is not allowed to disclose any protected information. That includes medical records created when attending to the patient in a professional capacity.

Violating a patient's right to confidentiality can be dangerous. It may cause a health care provider or treating physician to become liable for medical malpractice.

Physician-patient privilege covers protected health information (PHI). PHI is discussed under the Health Insurance Portability and Accountability Act (HIPPA) of 1996. This federal law refers to private information not already publicly or commonly known about the patient. States may have their own laws to further protect private health information. Generally, there are some exceptions to the privilege, such as a court order to produce medical orders.

How can the privilege be waived?

The fact that the patient has passed away doesn't necessarily result in waiver of the privilege. Some state laws waive physician-patient privilege for the dead patient (decedent) through a:

• Personal representative
• Surviving spouse
• Next of kin

Nonetheless, the principle is still disputed by physicians and hospitals. They may not want to give copies of their records to attorneys. Some state public health laws limit the disclosure of medical records only to doctors and hospitals. They do not expressly provide for disclosure to attorneys or family members.

A wrongful death plaintiff can't always get the deceased's medical records outside litigation. That means a lawsuit has to be in process before the information can be obtained. If the records are sought in connection with an ongoing wrongful death case, getting them becomes much easier. Bringing a wrongful death action in court may waive physician-patient privilege. This is especially true if the decedent's lifetime health or medical condition before death is at issue in the case.

How does the waiver process work?

Usually, close family members or executors named in a decedent's will may be able to start the process. Depending on your state's laws, a personal representative may need to be appointed. Subsequently, a decedent's medical records can be obtained. When physician-patient privilege is waived for the purposes of wrongful death litigation, you still have to:

1. Take measured steps to avoid going beyond the boundaries of the waiver;
2. Avoid bringing irrelevant medical documents to the case; and
3. Avoid revealing information that would disgrace the decedent's memory

What if wrongful death and negligence claims are combined?

A patient's privilege is waived for all medical treatment related to a combined action. That is when the plaintiff commences an action for several claims, such as:

• Negligence
• Other personal injury, in addition to wrongful death

In fact, combined actions are common for wrongful death claims, as they can help maximize recoverable damages. Higher potential damage claims often lead to better settlements for plaintiffs. For example, a car accident case might allege both property destruction and wrongful death. The combined action allows for higher recovery.

After a waiver in a combined action, are all records available?

No. In some states, there are at least two major types of physician-patient privilege:

• Medical
• Psychiatric

In some states, the latter is known as the psychotherapist-patient privilege. This privilege is not waived in cases where mental or emotional issues are not relevant. The wrongful death lawsuit (or combined action) needs to claim more than just physical injuries. For example, suppose the action involves depression or post-traumatic stress disorder (PTSD). Here, the psychotherapist-patient privilege may be overcome. Keep in mind that the law varies between states. Only an attorney in your locality can give legal advice for your state's laws.

A Wrongful Death Lawyer Can Help Overcome Physician-Patient Privilege

Law offices of personal injury attorneys provide legal advice on privilege issues. An experienced attorney with knowledge of personal injury law can help. They have the skills to overcome doctor-patient privilege. They can help you recover from defendants and their insurance companies. Consider forming an attorney-client relationship with a wrongful death attorney today.