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Who Can Obtain the Decedent’s Medical Records in a Virginia Wrongful Death Case?

Medical privacy of every individual in Virginia has two important legal protections: the physician-patient privilege and HIPAA (Health Insurance Portability and Accountability Act). But these protections create a unique situation in the event of a wrongful death where the deceased’s family members need access to the medical records in order to pursue a claim for compensation.

Waiver of Physician-Patient Privilege

The law says that the doctors cannot disclose a patient’s medical information to a third party unless the patient waives the physician-patient privilege. If a victim is killed in an accident due to another’s fault, or a wrongful death occurs in any other manner, the waiver of physician-patient privilege is possible in Virginia for the purpose of making a wrongful death claim by the family members of the decedent.

Waiver of HIPAA Protection

In general, HIPAA will protect the medical records of the deceased for the next 50 years. However, in the event of a wrongful death in Virginia, the administrator or the personal representative of the estate can authorize access to the decedent’s medical records or disclose that information.

Some non-representatives who could be family members or caregivers may also have limited access to the decedent’s medical information through healthcare providers or health plans. It is best to consult with an attorney with experience in personal injury, wrongful death, and estate planning in order to ensure that the rights of the decedent’s family members are fully protected after a wrongful death. 

Legal Process to Get the Deceased’s Medical Records

Getting the decedent’s medical records to investigate a potential Virginia wrongful death claim can be a complex process, and can take some time because first the decedent’s legal representative must be appointed by a local circuit court.

During their lifetime, even if a person signs a power of attorney, it will not help in obtain their medical records after their death because the POA loses legal effect when the person who gave it dies. By law, all the assets and possessions of a deceased person become a part of their “estate” after their death.

Therefore, the medical records of the decedent from the healthcare providers and hospitals can only be obtained a person appointed as the administrator or executor of the deceased’s estate. The typical procedure for this appointment is that the person who is named in the deceased’s will as the executor contacts a local circuit court probate clerk to schedule an appointment.

If there is no will, the court will verify certain things in order to appoint the administrator (the personal representative) of the deceased’s estate. The representative should inform the probate clerk that they intend to investigate a death caused by a negligent act (which could be a car accident, injury caused by a third person or business, a medical malpractice case, or a disease caused by a defective product, among other things).

The appointment of the administrator does not require a lawsuit or a petition in the court. It is an administrative matter, requiring compliance with certain forms and payment of minimal fees when there was no will. Or, if there was a will, there will be other requisites, depending on the assets involved.

Legal Standing of the Plaintiff

In Virginia, the plaintiff must have the necessary legal standing or qualification to file a wrongful death lawsuit. Otherwise their case could be dismissed by the court. Even if the decedent was residing in another state and their estate after death is pending in that state, their personal represent will still be appointed only by a Virginia court for wrongful death case filed in Virginia.

The court in Virginia will also consider whether the personal representative or the administrator has a legal standing pursue survival claims on the decedent’s behalf. It is important to note the difference between a survival claim and a wrongful death claim.

While the wrongful death claim in Virginia is meant to compensate the beneficiaries for their financial losses and suffering, the survival claim focuses on all the personal injury damages the decedent could have recovered had he or she survived. The compensation for a survival claim is disbursed through the estate of the decedent rather than directly distributed to the beneficiaries.

Types of Wrongful Death Compensation

Family members of the deceased person may be able to receive the following types of wrongful death compensation in Virginia:

  • Medical expenses
  • Funeral and burial costs
  • Loss of income and benefits
  • Loss of consortium
  • Mental anguish and sorrow

In exceptional cases, exemplary or punitive damages may be awarded in a wrongful death case, if the at-fault party’s conduct involved recklessness and willful disregard for others’ safety.

Speak to a Competent Wrongful Death Attorney in Virginia Today

If your loved one died in an accident due to the negligence of another person, you and your family may have a right to obtain financial compensation for your losses.

Virginia wrongful death lawyers at Shapiro, Appleton & Washburn have more than three decades of experience in the field, and have won recognition as ‘Super Lawyers’ for their outstanding track record. To schedule a free consultation, call us today at 800-752-0042.

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