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.