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Spring 2014
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d&G Lawyer News

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  • Obtaining the Medical Records of a Deceased Loved One
  • By: Eric Nowak

    When a family member passes away it is a difficult and often confusing time for those who are left behind. In some instances family members have questions about the medical care and treatment that was provided to their loved one or would like to know more about the cause of an unexpected death. If you find yourself in such a situation, understand that Federal and Florida law allows certain individuals to obtain a decedent’s medical records. A court appointed Personal Representative of a deceased person has the legal right to obtain the decedent’s records. Additionally, Florida law specifically provides that the person’s next of kin has the right to obtain the decedent’s medical records.


    Under Section 395.3025, Florida Statutes, any medical facility licensed by the State of Florida shall furnish to the personal representative of a deceased family member a true and correct copy of all patient records which are in the possession of the medical facility.1 This provision is consistent with Federal law under HIPAA (the Health Insurance Portability and Accountability Act) which specifically provides that the personal representative is allowed access to a deceased relative’s medical records.2

    Under Section 395.3025(1), Florida Statutes, if a personal representative has not been appointed, then “the next of kin of the decedent” shall be provided access to the decedent’s medical records.3 However, it could be argued that section 395.3025 is preempted by Federal Law under HIPAA, which does not expressly provide the decedent’s next of kin the right to access the decedent’s medical records. A similar statute, Section 400.145, Florida Statutes, which allows access to nursing home records (including medical records) for the deceased person’s “spouse, guardian, surrogate, proxy, or attorney in fact” has been found to be preempted by Federal law under HIPAA.4 In contrast, a Georgia statute which provides that when a personal representative has not been appointed, a deceased person’s surviving spouse and children may access their deceased loved one’s medical records has been found not to be preempted by HIPAA. In fact, the Georgia court found that the statute was specifically authorized by HIPAA because it treats the survivors as the personal representative for the purposes of medical records requests when there is no executor of the estate.5

    The differing opinions come from the two courts’ interpretations of HIPAA (45 C.F.R. 164.502(g)(4)) which states that:

    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.6


    The 11th Circuit, which determined that Section 400.145, Florida Statutes was preempted by HIPAA, found that Section 400.145, Florida Statutes “impedes” the purposes and objectives of HIPAA by not requiring the deceased’s relatives to provide a HIPAA compliant release and cannot be read to have created a situation where the relative has the authority to act for the deceased as their de facto personal representative.7

    Based on the reasoning of both of those courts, the next of kin of a deceased individual under Section 395.3025, Florida Statutes, should be able to procure their deceased relative’s medical records. The statute treats the next of kin as the personal representative for the purposes of obtaining medical records when a personal representative has not been appointed. The statute only allows the next of kin to be provided with the records when no personal representative has been appointed. Furthermore, the statute provides that a party receiving medical records under the statute shall not disclose the records to any other person and states that “[a] general authorization for the release of medical information is not sufficient for this purpose.”8 These requirements are consistent with HIPAA, and therefore, the statute is likely not preempted by HIPAA.9

    If you have been denied access to a deceased loved one’s medical records, have questions about how to obtain his or her records, or have questions about what to do in the event of the unexpected death of a loved one, do not hesitate to contact Dan McBreen at dmcbreen@dgfirm.com or Eric Nowak at enowak@dgfirm.com. de la Parte & Gilbert, P.A. has experienced attorneys that can help you enforce your rights and help you seek justice for the wrongful death of a loved one.

    --------------------------
    1 §395.3025(1), Fla. Stat.
    2 45 C.F.R. 164.502(g)(4).
    3 §395.3025(1), Fla. Stat.
    4 Section 400.145(1), Fla. Stat.; OPIS Management Resources, LLC v. Secretary, Fla. Agency for Health Care Admin., 713 F.3d 1291, 1298 (11th Cir. 2013).
    5 Alvista Healthcare Center, Inc. v. Miller, 286 Ga. 122 (2009). 6 45 C.F.R. §164.502(g)(4).
    7 Opis Management, 713 F.3d at 1297.
    8 §395.3025(7), Florida Statutes.
    9 Opis Management, 713 F.3d at 1297.
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