Physician-patient privilege and medical malpractice

When a patient treated by an attending physician unexpectedly dies, the deceased person's loved ones usually have many questions. How did this happen? What caused my loved one's unexpected death? People in this position may even scour medical records looking for answers. This is where some people investigating an unexpected death run into a road block, so to speak.

Every state, including California, has laws concerning privacy and medical records. Basically, the laws surrounding physician-patient privilege state that a patient's medical records cannot be shared or made public without that patient's consent. With wrongful death cases, this is where it can get complicated. If a person dies unexpectedly due to medical malpractice, it is unlikely that they would have consented to releasing their medical records prior to their death. This is due to the fact that they weren't expecting that anyone else would need to view the records.

However, this does not leave all next-of-kin to a wrongful death victim without options. Sometimes next-of-kin are granted a waiver that allow them access to the deceased person's medical records. The loved one may also petition for those records by seeking a waiver of the privilege. If granted, this gives access to the medical records that those seeking a wrongful death suit will ultimately need. Naturally, some people find that physicians or medical centers are otherwise reluctant to hand over medical records.

Only when tragedy strikes does it become important to think about seeking a waiver to obtain the privilege to view medical records. There are ways for a patient to waive the right to privacy in medical records at anytime during their treatment. A patient can even appoint a specific person to manage these records, much in the way a person is appointed as an executor of a will. Remember, there are options available to those seeking medical records of those who have unexpectedly lost their life.

Source: findlaw.com, "Wrongful death cases: Physician-patient privilege," Accessed Feb. 6, 2015

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