Physician-Patient Privilege in Wrongful Death Cases

When the Physician-Patient Privilege May Not Apply

The sanctity of the physician-patient privilege is recognized as a basic tenet of the law. It is recognized to ensure that patients will be free to inform their physicians of the totality of their medical condition, including symptoms that might prove embarrassing if disclosed in public. In turn, this unfettered disclosure will allow the healthcare provider to make an informed judgment about the condition of the patient and to treat them accordingly.

However, the privilege is not absolute. There are times when medical records, and even the testimony of a treating physician, can become fair game for defense attorneys to inquire into. Only a qualified attorney can explain to you in full detail the situations in which medical records lose their privilege.

Contact The Perecman Firm, P.L.L.C., to discuss your physician-patient privilege in a free case review.

Waiving the Privilege

There are many determining factors in whether the patient-physician privilege has been waived. The most common example is in the situation where a person has been injured in some type of accident. In these cases, the patient will want their medical records to be put into evidence. The extent of the injuries of the person claiming damages will help determine the amount that person is able to recover.

It is generally true that the higher the medical bills, the greater the damage award will be. This is certainly not always the case, such as in wrongful death case, but it provides a good indicator. Most times, the injured party will also want to have their treating physicians give depositions and testify at trial. Juries tend to trust the physicians who treated the injured person above all other testimony.

The extent of the injuries and possible long-term effects also support claims for loss of wages and for pain and suffering. While the patient-physician privilege is there to protect the patient in a general sense, waiving the privilege is usually advantageous to an injured party claiming damages. In a case claiming medical malpractice, the medical treatment — or lack thereof — is the focus of the case. In this situation, disclosure of the medical records will be absolutely mandatory to proceeding with the case.

Types of Medical Records That Can Be Accessed

When a medical condition has been placed into controversy as described above, there are a number of types of records that can be discovered. Among them are:

  • X-rays
  • MRI results
  • Drug prescriptions
  • Physicians’ notes
  • Nurses’ note
  • Hospital charts
  • Physical therapy records
  • Psychiatric reports

Limited Waiver of the Privilege

The waiver of the privilege is not an absolute one. The waiver concerns only those records that are relevant to the claim. As an example, medical records pertaining to the treatment of cancer or alcoholism will not be relevant in a case where a pedestrian has been hit by a car. Psychiatric records can be a closer call when certain types of emotional distress are claimed. Only a seasoned attorney can tell you what the discovery of your medical records might entail and how they can help you.

Call the New York City lawyers at The Perecman Firm, P.L.L.C., at (212) 577-9325 to discuss your physician-patient privilege matter.