The Physician-Patient Privilege in Wrongful Death Cases

The physician-patient privilege is designed to help each patient feel free to tell his or her doctor the whole truth about what he or she is experiencing; that way, the doctor will have the best information for diagnosing and treating the patient. This privilege can be very important for the relationship between the doctor and the patient. When a patient passes away, however, what happens to the privilege?

If you want to take legal action because your loved one suffered a wrongful death, you may have questions about the privacy of the medical records involved. For more information on physician-patient privilege, speak with an experienced attorney from our firm.

Doctor-patient privilege

Doctor-patient privilege is the patient’s right to keep anything that the patient told the doctor in confidence, for the purpose of diagnosis and/or treatment, from being disclosed in a legal proceeding. If the patient wants, he or she can give the doctor permission to disclose the information. In most legal proceedings in which the patient is suing the physician, the patient will want the medical records to be disclosed, but this is not always the case.

When the patient has passed away, especially in a wrongful death, the patient’s family or representative may wish to present the medical records in court (or during settlement negotiations). These records could help the family prove its case — perhaps supporting an allegation that a doctor’s treatment caused the patient’s wrongful death, or showing how someone else’s actions ultimately caused the patient’s death.

This situation brings up the problem of who may stand in the patient’s place to waive the physician-patient privilege.

Waiving the doctor-patient privilege

The doctor-patient privilege does not automatically go away when a patient dies. As with most questions involving wrongful death, however, the laws on this issue vary from state to state. In the absence of the patient, the person who represents the deceased typically has the power to waive the physician-patient privilege; this may be the spouse, parent or child of the deceased. In some cases, the privilege may be waived because the plaintiff’s lawsuit centers on the medical condition of the deceased, when the medical information is key to how the case will be decided.

Naturally, if your lawsuit includes allegations against a doctor or hospital, the defendant may be reluctant to release the necessary medical records. The laws of your state will have rules to deal with this situation, and having a lawyer in your corner can make the process move more smoothly.

Speak with a personal injury attorney

An attorney who knows the laws can guide you in your pursuit of justice for your loved one. The question of how to access and use medical records may seem daunting, but a lawyer from our firm can offer advice on how to proceed.

Wrongful Death – An Overview

Losing a loved one is painful. Losing a loved one due to wrongful death can be even more difficult. If someone’s wrongful actions caused injuries that resulted in your loved one’s death, that is a wrongful death. In common law, there was no legal action that surviving family members could take. That changed, however, when governments began to make laws protecting survivors. Now, in every state in the U.S., the representative or heirs of a person lost to wrongful death may file a lawsuit for monetary damages. The laws, however, vary quite a bit from state to state, so consulting with an attorney from our firm is advisable.

Monetary damages for wrongful death

The main method courts have for measuring loss in wrongful death lawsuits is pecuniary damages — that is, the court must determine the proper compensation for the financial loss that the death has caused. Though this may seem harsh or cold, money damages are the remedy that civil courts have at their disposal. Thus, when the courts measure loss, the first thing most of them turn to is quantifiable data:

How much money did the deceased earn?

How much money did the deceased save?

How financially dependent were the survivors on the deceased?

The court will also take into consideration:

Funeral expenses

Medical expenses

The wrongful death lawsuit is meant to compensate certain surviving family members, not necessarily to punish the party responsible for the death. Punitive damages are available, however, in some states when the actions of the defendant were reckless or malicious.

Factors in determining economic loss

Courts look at a number of elements to determine financial loss caused by a wrongful death lawsuit. Most of the considerations take into account characteristics of the person who has passed away:

Earning potential

Health

Life expectancy

Assets

Courts assess these factors when considering the financial dependence of the plaintiff on the deceased.

Some activities that might not seem economic at first glance can be characterized as such by the court. This is because it would cost money to have someone besides the deceased perform the activities. They include:

Child care

Housekeeping

Assistance with family members’ medical or daily living needs

The plaintiff may wish to use expert testimony to establish the amount of loss.

Factors in determining emotional loss

Not all of the emotional harm suffered by the plaintiff can be compensated by the court. Some aspects of what the decedent contributed to the family, however, are “calculated” by the court:

Parental guidance

Companionship

Affection

In making this determination, the court will look at the strength of the relationship between the plaintiff and the decedent. The weight the court gives this type of loss changes based on the particular state’s laws.

Survival actions

Some courts will allow the plaintiff to sue for injuries sustained by the person who died. This is called a “survival action” because the legal claim survives after the injured person’s death. This claim could be presented at the same time as the wrongful death lawsuit. If this is allowed, the plaintiff may need to show that the injured person was aware of and emotionally affected by the injuries before passing away.

Speak to a personal injury lawyer

Each state has a rule — a statute of limitations — about how long a plaintiff has to file a wrongful death claim. After that time has elapsed, it is too late to take legal action. It is therefore important to speak with an attorney promptly. Contact us today to schedule a consultation with a personal injury attorney to discuss your case.