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Death Caused by Negligence: Can I Get Medical Records of My Recently Deceased Family Member?

If you have lost a family member due to someone else’s negligence, Virginia law grants you the right to file a wrongful death claim against the at-fault party and demand financial restitution. In order to be able to do so, you need access to the medical records of the deceased family member.

Medical Records Privacy in Virginia

Under Virginia law, healthcare professionals or facilities are prohibited from disclosing an individual’s medical records to any third party – except under the following circumstances.

  • If the individual in question waives the physician-patient privilege
  • If the records are requested by state or federal law enforcement agencies under the relevant provisions of the law

In case the individual in question dies, their medical records will remain protected under the Health Insurance Portability and Accountability Act (HIPAA) for a period of 50 years.

Accessing the Medical Records of a Deceased Person

Section 32.1-127.1:03 of the Virginia Code states that in the event of a wrongful death, the personal representative or the executor of the estate has the right to access the medical records of the deceased individual.

In order to qualify as a personal representative or executor, the person who is named in the deceased individual’s will is required to submit the will – along with supporting documentation – to the Circuit Court Clerk. Once the will is confirmed to be genuine, the person will be appointed as the executor of the estate.

It should be noted that probating a will and appointing the executor of the decedent’s estate is an administrative process.         So, there is no need to file a petition or lawsuit with the court.

If, on the other hand, the individual in question died intestate (without making a valid will), their spouse can access the decedent’s medical records for the purpose of filing a wrongful death claim.

If the spouse is not alive, the decedent’s son or daughter (as long as they are over the age of 18) can access the medical records. If there is no son or daughter, or if they under the age of 18, the decedent’s parents, siblings, or any other blood relative (in that order) can access the medical records needed to file the claim.

Who Can File a Wrongful Death Claim in Virginia?

A wrongful death claim in Virginia is typically filed by the executor of the decedent’s estate – which could be the decedent’s spouse, children, parents, siblings, or other blood relatives – in that specific order.

What Kind of Damages Can Be Recovered in a Wrongful Death Claim?

The following tangible and intangible damages can be recovered in a wrongful death claim in Virginia.

Tangible Damages

  • Medical expenses related to the decedent’s injury (if they were taken to a medical facility and treated for their injury prior to their death)
  • Funeral expenses
  • Loss of income and benefits (if the decedent was gainfully employed prior to their death)
  • Estimated value of the services that the decedent would have provided

Intangible Damages

  • Sorrow and emotional anguish caused by the decedent’s passing
  • Loss of companionship, care, guidance, and comfort provided by the decedent prior to their death

Apart from this, if the at-fault party in question is found to have acted willfully and with complete disregard for others’ safety, the court might decide to award punitive damages as well.

Why You Should Hire a Wrongful Death Lawyer to Handle Your Claim

Establishing the at-fault party’s culpability in a wrongful death case can be a complicated task, depending on the circumstances under which the individual in question died.

In order to recover monetary damages, you need to prove:

  • The at-fault party owed a duty of care to the victim
  • The at-fault party failed to exercise due care
  • The at-fault party’s failure to exercise due care resulted in the victim’s death
  • The victim’s death resulted in tangible as well as intangible losses

Most importantly, Virginia is one of the four states that follow the doctrine of pure contributory negligence, under which you cannot recover any compensation if it is proven that the decedent’s actions contributed to the accident – even to a small degree.

If, for instance, it is found that the at-fault party was at 95% at fault for the accident and your family member was 5% at fault, you cannot recover any compensation.

This is why it is extremely important to hire a skilled wrongful death attorney to handle your claim, as they have to counter the allegations of negligence made by the other party and prove that your family member’s death was caused directly as a result of the at-fault party’s negligent or willful actions.

Looking for an Experienced Wrongful Death Attorney in Virginia?

At Shapiro, Appleton, & Washburn, we know how devastating it can be to lose a loved one due to a third party’s negligence. We also know that the loss of an earning member of your family can result in significant financial losses – both in the short term and long term. This is why we fight hard for each and every one of our clients and try to recover every last dollar they are owed.

We have over three decades of experience in handling wrongful death claims and have the legal expertise and resources to take up any kind of case – no matter how complicated it is. We will do everything in our capacity to recover the damages you are owed.

Call us today at 1800-752-0042 or contact us online for a free and confidential consultation with one of our Virginia wrongful death attorneys.

References

https://www.hsinjurylaw.com/faqs/wrongful-death-claim.cfm

https://www.hsinjurylaw.com/library/seeking-compensation-for-a-love-one-s-wrongful-death.cfm

https://www.hsinjurylaw.com/faqs/who-can-file-a-wrongful-death-claim-.cfm

Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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