Schlachman, Belsky, Weiner & Davey, P.A.

Baltimore Law Blog

When an unexpected loss of a loved one occurs, it can be devastating for Maryland residents. This is especially true when the death involves a child, which can leave parents searching for answers. In these cases, parents may have a cause of action for wrongful death of the child.

Recently, for example, the parents of a 17-year-old girl who died after a routine wisdom teeth surgery filed suit against the anesthesiologist, surgeon and hospital involved in the procedure. The teen had suffered brain injury during the surgery, causing her to go into a coma and die 10 days later. The parents' action claimed the medical professionals were negligent, which caused the loss of oxygen to the teen's brain.

After the case had been filed, the medical professionals argued the teen may have had a preexisting condition leading to the death. The defense requested that the teen's medical records be made public in court, which was contested by the parents.

While the case has since settled, the medical records issue arises often in wrongful death actions. Specifically, parties may argue whether the doctor-patient privilege protects the privacy of a person's medical records after the person has died.

Generally, the privilege must be waived by the patient. Accordingly, if it is not waived, the physician cannot disclose the confidential information contained in the records. Thus, the death of the patient does not automatically waive the privilege. State laws vary however, as some provide that a personal representative or next of kin may waive the privilege in place of the patient.

Moreover, the privilege is typically waived when a patient commences an action for negligence or personal injury based on medical treatment. Thus, in a wrongful death suit brought by the deceased person's loved ones, the privilege may be waived. Ultimately, the issue is one of many that may arise in the context of a wrongful death action, and which requires vigorous representation in order to argue the patient's side effectively.

Source: Baltimore Sun, "Malpractice claim in teen's wisdom teeth death settled out of court," Kevin Rector, April 3, 2013

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