If it comes to medical records, the physician-patient privilege protects a patient’s privacy. However, the same privilege creates the crux of an issue after a patient’s wrongful death. There seems to be no end to debate and controversy over the privacy of a patient’s medical records if he/she dies a wrongful death. Some think that the privacy should extend beyond a patient’s death whereas others think that such privilege should be limited to a patient’s lifetime, especially if it comes in the way of a physician’s ability to defend oneself in a wrongful death lawsuit.
What Does It Mean by Physician-Patient Privilege?
The physician-patient privilege is a right to privacy in the context of a patient’s medical records. Under federal and state law, patients have a legal right to the privacy of their own medical records. In other words, a patient’s medical details cannor be shared without his or her consent.
According to the general rule, if the patient does not give his or her consent to waiving of privilege, a doctor has no right to disclose any information that he or she acquires by attending to the patient in his or her professional capacity. The physician-patient privilege applies to only protected or private health information. However, some important exceptions exist. For example, a court may order to produce a patient’s medical records if needed and it clearly breaches the privilege.
Waiver of the Privilege
A patient’s death neither makes the privilege absolute nor dissolves it. In some states, the decedent’s surviving spouse, next of kin or personal representative is entitled to waive the privilege for the deceased. Nonetheless, the privilege is still disputed by doctors and hospitals that oppose handing the copies of their records over to the attorneys. Public health laws in some states require disclosure of medical information only to physicians and hospitals, and have no express provisions for disclosure to attorneys.
In a wrongful death lawsuit, a plaintiff’s right to obtain the dead patient’s medical details outside the context of litigation still makes an important subject for dispute. However, a clear statement that seeks to get medical records with future litigation in mind, is enough to make the patient’s or plaintiff’s right to medical records absolute. Therefore, a wrongful death lawsuit may have the impact of waiving the physician-patient privilege, particularly in the cases where the decedent’s lifetime health creates the main issue.
Process after a Waiver
Usually, it is mandatory to appoint a personal representative to obtain a decedent’s medical records. If the physician-patient privilege is purposefully waived for wrongful death litigation, it is important to take genuine care not to overstep the waiver and disclose medical information that could be disgraceful for the decedent’s memory.
If you are a plaintiff in a wrongful death claim, talk to a Miami Wrongful Death Attorney about waiving the physician-patient privilege. It is a sensitive issue that must be handled with great care and only an experienced lawyer can deal with the matter with exemplary sensitivity and professionalism.