How Are Medical Records Accessed After Death?

medical recordsHealth privacy protection in the US has grown stronger than ever in the last (nearly) twenty years. Many people have complained that they can’t get the health info they need on their spouse or partner or act on their behalf regarding a medical condition without medical power of attorney. On the other hand, it’s taken years for many medical institutions to properly train their staffs to not over-intepret these privacy laws. But the laws are pretty tough, and they really need to be, since they protect the privacy concerns of the patient.

The protections I’m talking about regarding medical privacy are two:

  • the physician-patient privilege
  • the Health Insurance Portability and Accountability Act (HIPAA) of 1996

Both preclude doctors from disclosing your medical records to others without your consent.

But consider these scenarios. Suppose you need access to a deceased loved one’s medical records? What if they need access to yours after you die? Let’s see how death affects medical privacy under HIPAA and the physician-patient privilege.

During our lifetime, a physician is forbidden from divulging any information gleaned from our medical care without permission or waiver of that privilege. But after death, it becomes a little more complex. What doctors know about us after we die might be critical, especially if there’s a question of a wrongful death claim.

While some states do allow the deceased person’s spouse, next of kin, or legal representative to waive the privilege and get access to medical records, still others confine access to doctors and hospitals. Litigation can also affect privilege. While notice of an impending lawsuit on a deceased person’s records could expedite their release, we could also see a patient’s medical privilege related to personal injury waived if he/she, or their representative, files an action based on that care.

HIPAA’s protection on medical records after someone passes is enforced for 50 years. During that time, only the decedent’s legally recognized representative has the power to authorize access to or disclose that person’s medical information.

So, who could a representative be? Well, they 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 persons involved in a decedent’s health care, may have limited access to medical records through health plans or health care providers.

So, if you want to determine who has access to your medical files after you pass, or if you’re having trouble accessing a deceased family member’s medical records, you’ll want to consult with an experienced estate planning attorney. In New Mexico, contact the Atkinson Law Firm in Albuquerque for your free consultation!

Scott Atkinson (267 Posts)

Scott concentrates on serious personal injury cases. He believes that a catastrophic injury does not just affect the victim; it also dramatically impacts the victim’s family. Scott is in Albuquerque to fight for you to recover your New Mexico accident losses!


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