The Physician-Patient Privilege in Wrongful Death Actions

The issue of Physician/Patient privilege often arises in wrongful death cases. The inherent nature of wrongful death cases tends to include medical treatment of some type. Patient confidentiality is highly protected and must almost always be waived directly by the patient. In wrongful death cases the patient is deceased and cannot waive their patient confidentiality, which can create a complicated battle to access medical records that can be crucial to reaching a fair settlement. Gathering and presenting this evidence is one of the most crucial services your wrongful death attorney will provide.

The laws concerning patient confidentiality vary from state to state. Some states determine that the surviving spouse, next of kin or personal representative will inherit the right to waive confidentiality. Even with this allowance, hospitals and physicians often dispute the necessity of providing medical records to attorneys, citing that disclosure of such documents is not always expressly provided for by law.

The dispute over the necessity to provide medical records outside the context of litigation is complex. Sometimes stating the contemplation of litigation is enough to make the right to the records absolute, but not always. In most cases, a personal representative must be appointed before the medical records of the decedent will be released.

If a case goes to litigation, it almost always results in the waiving of patient confidentiality by operation of law, and will require a physician to provide all medical documentation requested with the exception of information that would disgrace the memory of the decedent. Confidentiality is also waived if a claim involves personal injury or negligence. This circumstance applies to any wrongful death lawsuit that is filed in conjunction with a personal injury survival claim. A skilled wrongful death lawyer will ensure the necessary documentation is procured, and the settlement is fair.

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