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When it comes to wrongful death claims being filed, one of the biggest concerns amongst both the plaintiffs and the defense team is the availability of the patient’s medical records – as they have already passed. The normal doctor-patient privilege protects the privacy of a patient and their medical records – but this becomes quite the confusing issue once the patient has been wrongfully killed or passes away due to any number of reasons. According to Mr. Joel Levine, Esq, the top wrongful death lawyer Long Island has to offer, while some believe that a patient’s privacy should extend after death, others believe that there’s no need for privacy to extend, especially if the privilege hinders the ability of physicians (or some other individual or business) to defend themselves in a wrongful death lawsuit. There is quite a bit to learn based on what is and what isn’t obligated by the lawyer.
What is the Physician-Patient Privilege?
The physician-patient privilege is a right of privacy in the medical context. Under federal law and the law of every state, patients have a right not to have their medical information shared without their consent. The general rule is that unless the patient/decedent waives the privilege, a physician is not allowed to disclose any information acquired in attending to the patient in a professional capacity. An important thing to understand is hat the doctor-patient privilege only covers private or wholly protected health information. Such as anything that’s already in the public eye, according to the top wrongful death lawyer Long Island has in practice, Mr. Levine, can be disclosed, even if it has been long forgotten, and anything in private must be kept that way.
Waiver of privilege
This is an interesting topic – the fact that the patient is deceased doesn’t always mean that her privilege is gone with her death. Some state laws provide that the decedent’s personal representative, surviving spouse, or next of kin may waive the physician-patient privilege for the dead patient (decedent). Nonetheless, the principle is still disputed by physicians and hospitals that don’t want to give copies of their records to attorneys. Some state public health laws require the disclosure of medical records only to doctors and hospitals, and do not expressly provide for disclosure to attorney. This is quite an issues as the idea of spouses being kept apart by thousands of miles, and then something happening to one of said spouses could truly be damaging. This is something that’s vital for a spouse or family member to know, as they might be their only next of kin or be forced to decide things on that individual’s behalf.
According to Mr. Levine, the top wrongful death lawyer NYC has to offer, a wrongful death plaintiff’s right to obtain the deceased individuals medical records are generally outside the preview of some or most states. And their context of litigation can become a matter of some dispute. However, according to Mr. Levine, the top wrongful death lawyer Long Island has to offer, stating that one is seeking to obtain records, in consideration of future litigation is often enough to make the patient’s (and therefore the plaintiff’s) right to the records absolute. Thus, bringing a wrongful death action may have the effect of waiving the physician-patient privilege, especially if the decedent’s lifetime health is at issue in the case. This will essentially be enough reason to give the other party the advantage when seeking future records.
After a Waiver
Typically, a personal representative must be appointed before a decedent’s medical records can be obtained. According to Mr. Levine, the top wrongful death lawyer NYC has in practice, the physician-patient privilege is waived for the purposes of wrongful death litigation, great care must be taken not to overstep the waiver and reveal irrelevant medical documents to the case, and especially not to reveal information that would tend to disgrace the memory of the decedent.
Combination of Action
A patient’s privilege is waived regarding all medical treatment related to an action when the plaintiff commences an action for negligence or personal injury. A combined action – not simply wrongful death but also personal injury/negligence claims – is common for wrongful death claims, as the combined action claims tend to drive up the potential damages. Higher potential damage claims often lead to better settlements for plaintiffs. An unfortunate side effect of combined actions is the fact that the medical physician-patient privilege is waived. While the patient’s rights to privacy in that sense have been waived, according to Mr. Levine, the Top Wrongful Death Lawyer NYCTop Wrongful Death Lawyer NYC patients trust, in many cases, those medical records become necessary in order to win the actual case itself. For more information on wrongful death claims, be sure to contact Mr. Levine today!