The Patient-Physician Privilege is often an issue in a wrongful death suit. The Patient-Physician privilege is intended to keep medical information private and, by ensuring privacy, to encourage honest communication between doctors and patients. The privilege is held by the patient, which means the right to privacy is the patient’s right, and only the patient has the right to waive or give up their privacy and allow medical records to be disclosed. Most courts agree that the right to privacy in medical records does not end when a patient dies and that the records are still protected. However, in the context of a wrongful death action where the records are a necessary part of the litigation, this can create some confusion about who is allowed to authorize release of the records. A skilled Norwalk wrongful death attorney at the Law Offices of Piazza, Simmons and Grant LLC can help you though the process of obtaining your loved one’s medical records.
The Patient-Physician Privilege is created by state law and state law will also determine how and when the privileged may be waived. Many hospitals are also governed by the federal law related to disclosure of medical records known as HIPAA (Health Insurance Portability and Accountability Act). In Connecticut, the law allows an Authorized Representative of the deceased patient to waive the Patient-Physician privilege and to obtain medical records. An Authorized Representative is a personal representative of the decedent and/or the decedent’s estate. Often this is the surviving spouse or next of kin, but may also be the executor of the estate. While technically no formal documentation is required to be an Authorized Representative, a hospital or health care provider may request something to verify your status. HIPAA was recently amended with the intent of making medical records easier to obtain by the family or personal representative and now are generally consistent with state law. Your attorneys at the Law Offices of Piazza, Simmons and Grant LLC can assist you in finding or drafting the appropriate documentation.
Many states, including Connecticut, will automatically waive the privilege protecting medical records in suits brought against health care providers for medical malpractice. Likewise, where claims of wrongful death are combined with personal injury or negligence claims, the privilege will no longer apply; this is because the lawsuit puts the patients’ health and medical care directly at issue in the suit. A litigant cannot claim injury and then refuse to disclose information related to that injury. However, keep in mind that while the law requires disclosure, you will still need to obtain the records directly from the health care provider and the provider will still require some type of documentation to establish your right to the records. Here, it is important to pay close attention to ensure that only the required records are disclosed. If there is a dispute about what needs to be provided, the Court can step in to clarify the extent of the waiver. Your Norwalk wrongful death attorney at the Law Offices of Piazza, Simmons and Grant LLC can help you with to ensure that disclosures are sufficient, timely, and appropriate.
Connecticut makes a distinction between the Patient-Physician Privilege and the Patient-Psychiatrist Privilege. Waivers for disclosure of medical information waives only the Patient-Physician Privilege and does not include disclosure of psychiatric information. A patient’s psychiatric history will remain private and privileged unless specifically waived, however, as psychiatric history is not usually relevant to a wrongful death action this is something to discuss with your Norwalk wrongful death lawyer.
In the end, if you are still having trouble obtaining medical records, you can seek court assistance. The court can issue subpoenas and can also require health care providers to come to court and explain why they refuse to release records. In some cases, Connecticut law also allows for litigants to recover expenses from providers who have wrongfully withheld records.
Our Norwalk wrongful death attorney at the Law Offices of Piazza, Simmons and Grant LLC can help make this process as easy as possible and prepare you for what is to come. Call us at 203-504-5840.