Medical records are sensitive, and people generally do not want these records made available to anyone. The law recognizes this, and thus, provides for a physician-patient privilege that protects this private information. Per federal and Texas law, the physician-patient privilege means that patients do not have to provide others with their private medical information, unless they agree to do so. This generally means that, with a few exceptions, doctors are not permitted to disclose any medical information obtained in a professional capacity without the patient’s consent.
However, what happens if the patient passed away and can no longer give their consent? This can cause problems, particularly, if the patient’s family is pursuing a wrongful death claim based on medical malpractice.
Whether or not the privilege can be waived depends on state law. In some states, family members can waive the privilege if the patient has passed away. In other states though, the deceased’s medical information can only be given to other medical professionals, and it is not expressly permitted for the deceased’s medical information to be given to attorneys.
In Texas, there is an exception to the privilege in civil cases against the physician. There is also an exception if either party relies on the patient’s medical condition as part of their claim or defense, to the extent that the record is relevant to that medical condition.
This is only a brief overview of how the physician-patient privilege applies once the patient has passed away. In truth, wrongful death claims are very complex, especially when they involve medical malpractice. In such cases, not only may medical records be relevant but oftentimes the testimony of a medical expert is needed.