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How doctor-patient privilege affects wrongful death claims

There's a fairly sacred relationship between doctors and patients. In order for doctors to treat patients properly, patients have to feel safe telling their doctors things they wouldn't tell anyone else -- even their family members.

Unfortunately, if something goes wrong with a patient's medical care and the patient dies, the doctor may conveniently try to hide behind that sacred trust, or doctor-patient confidentiality. This is especially true if the family of the deceased tries to pursue a wrongful death claim.

This always brings up the issue in court of exactly who has the right to waive the patient's right to privacy when the patient is deceased. Most people are surprised to find out that the privilege between doctors and their patients doesn't just go away when the patient dies -- even if the doctor is accused of causing that death through negligence.

Fortunately, the privilege isn't absolute. The doctor can only try to keep private any information that isn't already commonly known through other available sources. The court also has the right to order a doctor to produce any medical records needed for evidence in a wrongful death trial.

In addition, the deceased's representative -- which could be a spouse, parent, child or the person who is in control of the deceased's estate -- can usually waive the privilege on the deceased's behalf. Unfortunately, you may not get a hospital or doctor's office to see it that way until you've actually taken the step of looking into litigation. That means that you may have trouble getting the deceased's medical records if you just want to examine them because you suspect negligence caused his or her death.

Instead, you may have to get an attorney to help you unlock the records. Then, you and your attorney can examine the records together to see if there really was negligence involved.

While it isn't always that hard, you should be aware that medical professionals do regard a patient's right to privacy very seriously -- and that regard certainly isn't lessened when there is potential medical malpractice involved.

Source: FindLaw, "Wrongful Death Cases: Physician-Patient Privilege," accessed March 16, 2018

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