The physician-patient privilege was enacted by lawmakers to ensure that everything a patient tells his or her doctor will remain confidential. This privilege was designed to encourage patients to feel free to tell the whole truth about their medical condition, which, in turn, can help the doctor properly diagnose and treat the condition.
The law takes this privilege very seriously. But what happens to the physician-patient privilege when a patient passes away? What if the surviving family members of the deceased patient wish to sue the doctor who treated the deceased and wish to disclose the information the patient had shared with the doctor prior to the death?
Can a deceased patient’s surviving family members waive the physician-patient privilege when filing a wrongful death or medical malpractice lawsuit if they have a reason to believe that the deceased’s treating physician was negligent and failed to adhered to accepted standards of care, which ultimately caused the death?
These are the questions we asked our Hawaii wrongful death attorney from the Kurzban, Tetzeli & Pratt P.A. Turns out, it is legally permitted to disclose the medical records and confidential information by waiving the physician-patient privilege if your loved one suffered a wrongful death.
How is the doctor-patient privilege waived when a patient dies?
Contrary to the popular belief, the doctor-patient privilege is not automatically waived when a patient dies. Rather, there are quite a few bureaucratic challenges the surviving family members will have to overcome to disclose the medical records or anything related to the deceased’s treatment in a legal proceeding.
Although the law prioritizes the privacy of the information the patient had provided to the doctor prior to the death, the law also recognizes that confidential medical records could help the surviving family prove their case and sue the negligent doctor for medical malpractice.
Who has a right to waive the doctor-patient privilege in a wrongful death case?
So the question is this: Who has the legal right to waive the doctor-patient privilege on behalf of the deceased? When the patient lives, only he or she can give the doctor permission to disclose confidential information. When the patient is no longer alive, on the other hand, the person who represents the deceased has the legal right to waive the physician-patient privilege for a wrongful death case. This representative may be the deceased’s surviving spouse, parent or child.
More often than not, the physician-patient privilege can be waived if the medical malpractice or wrongful death lawsuit is based on the medical condition of the deceased and the confidential medical information in question could be valuable to establishing liability.
Is it difficult to waive the physician-patient privilege?
Our experienced wrongful death attorney in Hawaii warns that when it comes to medical malpractice lawsuits, doctors and hospitals are reluctant to disclose medical records obtained within the context of the physician-patient privilege. That is why being represented by a lawyer is the best way to streamline the process of waiving the privilege and filing a medical malpractice or wrongful death lawsuit against the negligent doctor or hospital.
If you have questions about the process of appointing the deceased’s representative to waive the physician-patient privilege, consult with a Hawaii wrongful death attorney. Keep in mind that when disclosing medical information in a wrongful death case, it is critical not to reveal the information that is irrelevant to the case and/or could potentially disgrace the memory of the deceased patient.
Schedule a free consultation by contacting the Kurzban, Tetzeli & Pratt P.A. – recovery law center in Hawaii. Call at 808-736-5035, or complete this contact form.