We investigate a lot of wrongful death and medical malpractice cases here, which means we spend a lot of time requesting and reviewing the decedent’s medical records. When it comes to potential medical malpractice lawsuits where a family member has died, we are required to obtain and review the medical records before we can file a lawsuit. Indeed, all three of the states in which we primarily practice law (Pennsylvania, New Jersey, and Delaware) have “certificate of merit” or “affidavit of merit” requirements, meaning that, after we have reviewed the records and determined that the client has a case, we must also provide those records to a qualified physician expert who will attest to the possibility of malpractice.
In short, when it comes to malpractice cases, we need medical records as soon as possible, because the process of reviewing the records – which sometimes comprise thousands of disorganized pages, many of them containing barely legible hand written notes – and having them reviewed by an outside expert can take months itself. One of the things we have learned through our over 50 years of malpractice experience is that patients’ family members can usually obtain their loved one’s medical records much quicker than we can.
There are a lot of reasons for that difference. Part of it is sheer bureaucracy: we usually have to make a request through complicated record-keeping services, which then make their request through a hospital or physician practice group’s records department, which then evaluates and approves the request through its own internal bureaucracy. In contrast, patients can usually go directly to the provider in question, or to the doctor’s or hospital’s record-keeper, and demand a copy be made of the records. Part of it is pettiness: healthcare providers usually aren’t in a rush to give records when they think the records are being reviewed for potential malpractice claim.
Unfortunately, we see a lot of potential clients who have just lost a spouse, a child, or parent given the runaround by hospitals that make unnecessary demands and force family members to jump through hoops and fill out strange forms, just to deny the request and then make them fill out entirely different forms. Thankfully, there are federal and state laws that mandate when a deceased person’s medical records must be provided. The Journal of The American Health Information Management Association has answers to frequently asked questions about access, and some more information in this blog post, and we summarize much of the law below.
In short, usually what you need is to be appointed executor of the decedent’s estate, and then bring that paperwork to the hospital or doctor’s office.
Federal regulations (45 CFR 164.502, read more from Health & Human Services here) require that hospitals and other health care providers “treat a personal representative as the individual,” and then say specifically:
Deceased individuals. If under applicable law an executor, administrator, or other person has authority to act on behalf of a deceased individual or of the individual’s estate, a covered entity must treat such person as a personal representative under this subchapter, with respect to protected health information relevant to such personal representation.
In other words, the executor of the estate is usually the best person to request the records, and what they’ll normally need is (a) a death certificate for the deceased person and (b) letters of administration appointing them the executor of the estate. Some hospitals require these “personal representatives” also fill out a HIPAA authorization for the deceased person; that’s not required by law, but it’s usually easier just to do the form.
Pennsylvania law (28 Pa. Code § 115.29) states that “Upon the death of a patient, the hospital shall provide, upon request, to the executor of the decedent’s estate or, in the absence of an executor, the next of kin responsible for the disposition of the remains, access to all medical records of the deceased patient.” Notice how that can be a bit broader than the federal rule — if no one has been appointed executor of the estate, then the “next of kin” responsible for the decedent’s remains can obtain the records.
New Jersey law (N.J. Stat. § 2A:82-42, but no official copy online I could find) states that “Any person who has been injured, or his legal representative, who has asserted, or who is about to assert a claim for compensation or damages for personal injuries or death resulting therefrom, shall be permitted to examine the records of any hospital pertaining to the claim of such injured or deceased person.” This guide about medical records rights prepared by Georgetown law (PDF file) has more detail.
Delaware doesn’t have a specific statute for deceased person’s medical records, but that just means the federal rule applies.
Since 1958, The Beasley Firm, based in Philadelphia with attorneys licensed in Pennsylvania, New Jersey, Delaware, and other states, has fought hard for wrongful death survivors, obtaining over $2 billion in jury awards and settlements, $1 billion of it in wrongful death cases. If you lost a loved one and suspect negligence or malpractice was involved, contact our wrongful death lawyers for a free and confidential consultation.