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There are two major legal protections of our medical privacy: the physician-patient privilege and the Health Insurance Portability and Accountability Act (HIPAA). Both preclude doctors from disclosing your medical records to third parties without your consent.
But what happens to your medical records after you die? What if you need access to a deceased loved one or family member's medical records? Here's how death affects medical privacy under HIPAA and the physician-patient privilege.
What's Up, Doc?
Often, our doctors know more about us than our family and friends. And what they know might be important after we die, especially if there's a question of a wrongful death claim. During our lifetime, a physician is not allowed to divulge any information gleaned from our medical care without permission or waiver of the privilege. But after death, it becomes a little more complicated.
Some states allow the deceased person's spouse, next of kin, or personal or legal representative to waive the privilege and have access to medical records, while others confine access to doctors and hospitals. Litigation could also have an effect on the privilege: While notice of an impending lawsuit on their behalf could expedite the release of a deceased person's records, it cuts both ways. Often, a patient's privilege regarding medical treatment related to negligence or personal injury is waived if she, or in this case a representative, files an action based on that care.
Hungry Hungry HIPAA
After a person passes away, HIPAA's protection on medical records is enforced for the next 50 years. During that time, only the decedent's legally recognized representative has the power to authorize access to or disclose the person's medical information.
A representative could be the executor or administrator of an estate, or a person designated in a living will. Some non-representatives, such as family members or other individuals involved in a decedent's health care, may have limited access to medical records through health plans or health care providers.
HIPAA does not apply to any medical records 50 years after a person's death.
If you want to determine who has access to your medical files after you die, or if you're having trouble accessing a deceased family member or loved one's medical records, you may want to consult with an experienced estate planning attorney.