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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.

 

 

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