Can Medical Records be Disclosed in Wrongful Death Cases?

Obtaining medical records of a deceased person in Michigan can be complex, as there are several federal and state laws involved in determining who is entitled to access the records. In filing a wrongful death case due to medical negligence, you should seek assistance from malpractice lawyers in Michigan to assist you with unraveling the intricacies of the case.

What is a Wrongful Death Suit?

A wrongful death suit can be brought against a defendant who caused someone’s death through negligence or intentional action. If a victim would have had a valid personal injury claim but has died as a result of the wrongful act, it becomes a Wrongful Death suit. Examples include:

The plaintiffs will file through the estate of the deceased and have the same burden of proof that the victim would have had in a personal injury claim; however, they can claim further damages.

It is important to note that just because a patient’s condition got worse, or the doctor could not cure the illness or injuries, it is not automatically malpractice because the patient died. In many cases, there is no proximate or direct cause to death except for the actual condition of the patient.

Can anyone file a Wrongful Death Suit?

This will depend on the state in which the suit is filed. Usually, the executor of the victim’s estate will file the wrongful death suit on behalf of the survivors. In some states, the wife or children of the deceased, or the parents in the case of a minor, are allowed to file. In other states, other family members such as grandparents or anyone depending on financial support from the victim are allowed to file, based on a hierarchy. Your personal injury lawyer at Cochran, Kroll & Associates, P.C. can assist you with the applicable state laws.

Can you get the medical records of the victim released?

The medical records of the deceased are the most critical evidence to be collected in the case of a Wrongful Death suit. Requests for medical records are often turned down, blaming HIPAA regulations for the refusal. HIPAA laws and subsequent changes brought about by the HITECH act, do protect the privacy of medical records even in death; however, it explicitly states that records must be released to authorized individuals. It also refers to state laws to determine who can access these records in the case of death, and for official purposes.

In general, the release of medical records without the patient’s consent is prohibited, and you may only be able to obtain their records if you were specifically named as a personal representative or the executor.

In Wrongful Death cases, you would have to prove that you are the officially appointed executor of the deceased’s estate, or that, by state law, you qualify as the patient’s official representative. Some hospital systems will require the patient to name their personal representative on admission as part of their privacy policy. Appointment of a personal representative in the absence of a named executor has to go through probate court.
To access the medical records, you would have to present the patient’s death certificate and a document establishing executorship by the court.

The HITECH-HIPAA final rule at 164.510(b) allows, subject to any prior expressed assignment by the deceased, that relevant medical records may be released if a person does not qualify as a personal representative, to a medical proxy or someone holding a medical power of attorney. In some states, patient-physician privilege first must be waived by the executor or personal representative or the court itself.

If you live in Michigan, and wish to file a Wrongful Death suit, call Eileen Kroll, a registered nurse and personal injury trial attorney, at Cochran, Kroll & Associates, on 1-866-MICH LAW (1-866-642- 4529) for a no obligation case evaluation. Be sure to note the statute of limitations is three years so that you do not miss your opportunity to file.

Nikole has a special interest in medical-legal issues and holds post-basic degrees in medical law and business. She has developed quality improvement and safety plans for many practices and facilities to prevent medical-legal issues and teaches several courses on data protection and privacy, legal, medical examinations and documentation, and professional ethics. She has been writing professionally on legal, business, ethics, patient advocacy, research and medico-legal issues in articles, white papers, business plans, and training courses for over thirty-five years.

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