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How are medical records obtained in a wrongful death case?

Preserving a patient's right to privacy is one of the medical profession's highest priorities. Generally, no information can be shared without a patient's consent. When patients die, they cannot give consent for anyone to view their records, so the files are typically sealed.

In a wrongful death lawsuit, however, the contents of patient files can be key to a case. A patient's representative can file a wrongful death lawsuit due to events such as misdiagnosis of a fatal condition, a medical mistake, an anesthesia error or other similar problem that lead to a worsened medical condition and death.

One solution is for a court to order the release of a patient's records. Generally, the court must first appoint someone to act as a personal representative who is pursuing the patient's interests. In some states a deceased patient's next of kin may give consent for medical records to be disclosed.

Unfortunately, access to medical records in wrongful death suits is still a source of contention in the legal system. Doctors and hospitals often fight to prevent the release of medical records in a wrongful death lawsuit.

Also, the records that are released in a wrongful death lawsuit are often incomplete. Only records that are deemed relevant to the case are allowed to surface. Also, the courts can be reluctant to release any records that would cast a deceased patient in an unfavorable light.

The situation is different for living plaintiffs. When a living patient pursues a negligence or personal injury action, he or she waives the right to keep medical records private.

Each situation is unique; this post is meant as a general overview and should not be taken as specific legal advice. It is best to speak with a professional regarding your particular situation

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