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Patient Privilege in Wrongful Death Cases

When you pursue a wrongful death claim following the loss of a loved one, you may need to access your loved one’s confidential medical information to support your claim. However, you may find that your family member’s health care providers are saying that doctor-patient privilege prevents them from giving you the information you need.

What is Doctor-Patient Privilege?

The idea behind doctor-patient privilege is that your medical information is personal and private, and shouldn’t be shared with anyone else without your permission. The information that you share with your doctor, nurse, psychotherapist, or other health care provider, is legally barred from disclosing confidential health information unless you agree otherwise, usually in the form of a written waiver. The purpose of doctor-patient privilege is to make patients feel comfortable sharing information that may be necessary for medical treatment, but that may be very personal or even embarrassing for the patient.

How Does Doctor-Patient Privilege Affect a Wrongful Death Case?

Medical records are important pieces of evidence in any personal injury case. In a wrongful death case, medical records can help establish that the injuries your loved one sustained in his or her accident led to your loved one’s wrongful death. However, complications can arise when your lawyer attempts to get copies of your loved one’s medical records because the doctor-patient privilege that existed between your family member and his or her health care providers may continue to exist even though your loved one has passed away. The privilege doesn’t automatically end with death.

When doctor-patient confidentiality continues to apply, the health provider cannot release information or records. A waiver is necessary, and determining who can sign a waiver on behalf of your loved one can raise complex legal questions. In Illinois, 735 ILCS 5/8-802 says that when you sue a physician for malpractice, information kept by that physician can be disclosed and confidentiality does not apply.

The statute also says that in the case of a patient’s death or disability, the patient’s personal representative can give consent to waive confidentiality. In a wrongful death case, there can be only one person designated as your loved one’s personal representative, and the person designated then is the one who would become the plaintiff in a wrongful death lawsuit. The personal representative can be any of your loved one’s next of kin. You and your lawyer will have to decide if you will act as personal representative, or if another next of kin will fill that role. The person ultimately designated should be able to waive doctor-patient privilege for the purposes of obtain medical records to support your wrongful death claim.

If you have signed and notarized Power of Attorney document giving you authority to conduct your loved one’s affairs, that also may be able to serve as your authority to waive your family member’s patient privilege so that you can get medical information. A signed form allowing disclosure of medical information under the federal Health Insurance Portability and Accountability Act (HIPAA) also may give you authorization to access your loved one’s medical information.

How a Lawyer Can Help

An experienced wrongful death attorney can help you navigate the complexities of health privacy laws to get the information you need to support your claim. Your lawyer can determine the right person to act on behalf of your loved one to waive patient privilege, and evaluate what information you’ll need as evidence in your case.

At the same time, your lawyer can help try to protect the privacy of medical information that isn’t necessary to the case, but that the insurance company or other lawyers in the wrongful death lawsuit may want to try to obtain. An attorney with significant wrongful death experience knows the fine points of Illinois law regarding doctor-patient privilege and how to apply the law so that you get the most favorable outcome.