One issue that comes up in most wrongful death cases is the doctor-patient privilege. This privilege protects the patient’s medical records from disclosure. Generally, the doctor cannot disclose any information he or she may have acquired while attending to the patient as a doctor unless the patient has waived the privilege.
Relinquishment of the Doctor-Patient Privilege
The death of the patient does not result in a relinquishment of the doctor-patient privilege nor does it mean that the privilege has become absolute. Depending on the state laws, the deceased patient’s surviving dependents or personal representative may waive the privilege on behalf of the patient. Many doctors and hospitals find this as a violation of the privilege and are reluctant to provide information to attorneys. In some states, the law expressly provides for disclosure of information to other doctors and hospitals but is silent on disclosure to attorneys.
The right of a plaintiff in a wrongful death lawsuit to gain access to the medical records of the deceased patient for any purpose other than the wrongful death lawsuit is a highly debated issue. The right becomes absolute when someone seeks access to the records to file a lawsuit. Generally, a personal representative must be appointed before the medical records can be accessed. The filing of a wrongful death lawsuit may result in a waiver of the privilege by operation of law more so if the patient’s health is an issue. The doctor must generally provide the requested information except any information that if disclosed, will cause disgrace to the deceased patient.
When a personal injury or negligence lawsuit is filed, the privilege is considered waived in terms of all medical treatments connected to the lawsuit. Even in a wrongful death claim, the next of kin/family members of the deceased patient may recover compensation for pain and suffering that the patient may have suffered prior to his or her death.