Spring 2014
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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.
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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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