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How Does Physician-Patient Privilege Affect Wrongful Death Cases?

by | Jul 21, 2020 | Catastrophic Injuries

Physician-patient privilege is usually a good thing. It means your medical information cannot be shared without your permission, and is protected by both federal and state laws. But what happens when a loved one dies while under medical care and you suspect the death was wrongfully caused by a caregiver or healthcare facility? How do you obtain access to the medical records in order to help you ascertain if your relative’s death was due to negligent or reckless care?

While some states allow medical record access to a deceased individual’s personal representative, that is not the case in Georgia. A personal representative is the executor, administrator, or other person designated to act on behalf of a deceased individual or their estate. Even though the bank and Department of Motor Vehicles are mandated to release pertinent information to the representative, physicians, pharmacists, hospitals, and other healthcare facilities are not bound by the same regulations in Georgia. 

Under Georgia law, healthcare providers do not have to release medical records, even following death, unless the patient gave prior written consent allowing access or a lawsuit has been filed. Without a patient’s written consent or a confidentiality waiver signed prior to death, family members must file a wrongful death lawsuit and seek a subpoena to gain access to medical records.

Mental health records are covered by different laws in Georgia. Even with a subpoena, you may not be able to gain access to mental health records if you believe your loved one was negligently treated by a mental health professional and that treatment resulted in wrongful death. Under Georgia law, psychiatrists and hospitals treating patients for mental illness do not have to release medical records even in the case of a lawsuit. This is known as the mental health privilege and has been upheld by the Georgia Court of Appeals. 

The purpose of doctor-patient confidentiality is to make patients feel comfortable sharing information relevant to their care without the concern that it be released to anyone. In the case of mental health, the privilege is extended to encourage patients to speak freely without fear of embarrassment or disclosure of any emotional or mental disorders.

If you have a loved one who is seriously ill or about to undergo major surgery, discuss having them sign a waiver of confidentiality. The waiver should be specific about which records are covered, including hospital, lab, treatment, operative, and any other department or physician records. It should also specify the person or persons to whom information can be released as well as an expiration date. The patient has to be of sound mind and body at the time of signature in order for the waiver to be effective.

Contact the Experienced Wrongful Death Attorneys at Hudson King

If you believe someone you love was negligently treated, resulting in death, you and the other heirs may be eligible for compensation. At Hudson King, our team of wrongful death attorneys have the experience and knowledge necessary to pursue the best possible results in your case. Contact us today at 229-515-8585 for a free case consultation.

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