Who Can Obtain the Decedent’s Medical Records in a Virginia Wrongful Death Case? | Shapiro, Washburn & Sharp

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 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 obtaining 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 by 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 would be other requisites, depending on the assets involved.

Legal Standing

The following are the parties who may have the right to the victim’s medical records:

  • Immediate family members – Immediate family members of the deceased, such as spouses, children, and parents, typically have the right to access the decedent’s medical records in a wrongful death case. Virginia law recognizes their legal interest in the medical history of the deceased and allows them to obtain these records for the purpose of litigation.
  • Estate executor or administrator – The appointed executor or administrator of the deceased person’s estate can request and access the decedent’s medical records. They often act on behalf of the estate and represent the interests of the deceased, including pursuing legal claims like a wrongful death case.
  • Legal representatives – Attorneys representing the interests of the deceased person’s estate or immediate family members in the wrongful death case can request and obtain the medical records. They do so to build a strong case, gather evidence, and establish the cause of death and the extent of injuries sustained before death.
  • Healthcare agents or power of attorney holders – If the deceased person had designated a healthcare agent or granted medical power of attorney to an individual, that person may have the legal right to access the medical records. This is especially relevant if the deceased was unable to make healthcare decisions themselves due to illness or incapacity.
  • Court order or subpoena – In some cases, a court order or subpoena may be necessary to obtain the decedent’s medical records. This legal process requires the approval of a judge and involves providing compelling reasons for accessing the records. Courts may grant such requests to facilitate a fair legal proceeding.
  • Insurance companies – Insurance companies involved in the wrongful death case, whether representing the deceased person’s life insurance or health insurance, may request and obtain the medical records relevant to the case. This is often done as part of the claims investigation process.
  • Medical examiners or coroners – Medical examiners or coroners investigating the cause of death may have access to the decedent’s medical records as part of their official duties. They play a crucial role in providing accurate and comprehensive information regarding the circumstances of the death.

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.

Call Our Virginia Personal Injury Law Firm

In Virginia, the decedent’s medical records can be crucial in a wrongful death case to establish the cause and extent of injuries leading to death, demonstrate negligence or wrongful actions, calculate damages, and support the legal claims made by the surviving family or estate representatives. Working with an experienced attorney who understands the legal process and the necessary steps to obtain medical records is essential in ensuring a fair and just resolution in a wrongful death case.

Contact Shapiro, Washburn & Sharp to schedule a free and confidential consultation with one of our dedicated Virginia wrongful death lawyers to find out what legal recourse you may have.