When a person dies, their right to privacy—as far as their medical records go—survives. Thus, it's common for people to be denied access to family members' medical records, even when they're litigating personal injury lawsuits involving the decedent. If you find yourself running into a HIPAA wall when trying to get medical information on your deceased loved one, here are two things you can try.
Ask the Estate Representative
People who have been appointed as estate representatives for decedents gain a variety of rights that help them perform their duties as executors. One of those rights is unlimited access to the medical records of the deceased persons. As long as they can present identification and paperwork confirming their role as executors, they can get any and all health records available from any provider.
Thus, the best option for getting the information you need is to contact the executor of the estate for help. Chances are pretty good the person already has the records (or in the process of obtaining them) if a lawsuit has been initiated since it will befall the executor to participate in the litigation and collect any portion of the court award that would go to the decedent.
However, if the representative doesn't have the records, simply request what you need in writing. Unless there are extenuating circumstances that prevent the individual from complying, you should receive the records in the amount of time it takes the provider to provide them.
Ask Someone Higher Up the Hierarchy
Depending on a few factors, certain members of the deceased's family may be able to freely access the person's medical records. In some states, spouses gain access to their partners' records regardless of whether there's an estate administrator or not, for instance.
However, in other states, access is only granted to the next of kin if there's no estate executor and, even in this situation, access is provided based on a hierarchy. For instance, the person's spouse would have the right to access medical records. If the decedent wasn't married, then those rights would go to the person's children, then siblings, parents, and so forth until an eligible individual was found.
Enlisting the help of someone on this hierarchy is another option for getting the information required. Be aware, though, unlike an estate administrator who'll gain access to all the records available, the next-of-kin may be limited in the types of information that can be retrieved. For instance, if the decedent requested certain health details not be released to the family, then the provider would be obligated to omit them.
Accessing medical records for a deceased person can be challenging. It's a good idea to contact a personal injury attorney for assistance. The lawyer can provide advice on the best way to handle this situation, so you can get the information you need to advance your case.