Remember the movie War of the Roses. Kathleen Turner and Michael Douglas play married characters. They hated each other. But, neither wanted to part with their opulent house. So, they stay put. No one moved. They continue to spew hate and back it up with hateful actions.
Recently, a Medical Justice member said they cared for a patient who died. The patient was estranged from his wife. He explicitly stated he did not want his estranged wife to have access to his medical records.
HIPAA is clear, though.
The person who can access a patient’s full record after death is the estate’s executor. The executor steps into the shoes of the deceased. Further, HIPAA applies to dead patients for 50 years.
One exception to a dogmatic interpretation of HIPAA and deceased.
The Privacy Rule permits a covered entity to disclose protected health information about a decedent to a family member, or other person who was involved in the individual’s health care or payment for care prior to the individual’s death, unless doing so is inconsistent with any prior expressed preference of the deceased individual that is known to the covered entity. This may include, depending on the circumstances, disclosures to spouses, parents, children, domestic partners, other relatives, or friends of the decedent, provided the information disclosed is limited to that which is relevant to the person’s involvement in the decedent’s care or payment for care.
So, yes, one can talk to the family about how a patient died unless doing so violates the express wishes of the patient.
But, here, the patient’s estranged wife was the executor. And now she wanted the records. And the deceased had stated she was not to receive the records.
What to do?
Just give her the records under the assumption if this issue was that important to the patient, he would have changed his will and named a different executor? Deny the records and make her obtain a court order?
There is no perfect answer, but, it likely is the former. One is legally obligated to give records to the personal representative/executor of the estate.
Who knows? Maybe the couple made up moments before his death. Maybe the patient only cared about not disclosing his medical records to his estranged wife while he was alive. Maybe he was negligent in revising his will.
Doesn’t matter. The doctor’s office is left to follow the direction of the estate’s executor.
Here’s a related, but dissimilar case: A lawyer is involved with a case against a known child pornographer. The pornographer is discovered because his girlfriend, while left alone in his house, starts browsing through his computer files, and there it is. He gets arrested and charged. The lawyer (not representing him) finds out that he happens to be a teacher in a local girls’ parochial school. She decides that she has an affirmative duty to report this to the powers that be at the parochial school–at least on priest in this case. The priest fires the teacher.
The teacher/defendant then decides that he has to sue to lawyer who has busted him since she disclosed privileged information.
Who’s right?
I suggested that the safest course was to bring the case confidentially to the state bar association’s attention and sign off on it for them to deal with as they see fit, but she wanted to ride the white horse into town and save the day. The case went to trial (I’m pretty sure) and the jury found in her favor, but it was several harrowing years of uncertainty, which were unpleasant, not to mention expensive for her.
To my thinking, while there is indeed no perfect solution, the best is probably to build a consensus and have a group, rather than oneself, make a decision and take action. Seems like it would be lots harder to sue an entire state bar association’s ethics board, and harder still to win against them.
Or am I missing something?
If the dead patient truly hated his estranged wife, he would have chosen another executor. The living executor can cause more problems for the physician than the deceased, HIPPA-protected patient.
http://www.codeblueconference.com/