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ACCESS TO MEDICAL RECORDS OF A DECEASED PATIENT

This letter is in response to your inquiry regarding when the relatives of a deceased patient can

gain access to the deceased patient's medical records. Except as noted below, this letter assumes

that relatives of a deceased patient are not attempting to file a wrongful death claim against you

due to alleged medical negligence. If that is the case consult your professional liability insurance

carrier, however, you cannot automatically assume that all relatives of deceased patients who

request medical records are contemplating a lawsuit against you. The following information is

provided.

Before proceeding we must inform you that we cannot provide legal advice to individual TMA

members because Texas prohibits the "corporate practice of law" (Texas Government Code Ann.

§81.101). In addition, the State Bar of Texas has ruled that corporate-employed attorneys may

not provide legal services to customers of the corporation if a corporation receives fees that are,

to any extent, compensation to the corporation for the attorney's legal services to the customers.

To do so is a prohibited form of "fee-splitting" (Ethics Opinion 498, January 1995). The fact

that TMA is a non-profit corporation does not seem to change the conclusion. However, we can

provide general legal information about this topic. Because your facts may vary, you should

contact your own retained counsel for true legal advice and representation.

Reasons and Confidentiality

Various persons may appear in a physician's office requesting the medical records of a deceased

patient. There are a number of possible reasons for this. Survivors may need to prove the cause

of death in order to collect on a life insurance policy. Feuding family members may be

attempting to contest the will. Relatives may be investigating a potential wrongful death claim

against a third party. An insurance company might be contesting a claim against a life insurance

(or other types of) policy. However, while all other privacy interests die with a person, the

legislature has chosen to maintain the confidential and privileged nature of medical records

intact.

Consent for Release of Medical Records

As a general rule, no matter who wants the records or why, the Medical Practice Act of Texas

requires a valid consent for release of medical records. The Act provides as follows:

Consent for the release of confidential information must be in writing and signed by the patient,

or parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been

adjudicated incompetent to manage his personal affairs, or an attorney ad litem appointed for the

patient, as authorized by the Texas Mental Health Code (citation omitted); the Persons with

Mental Retardation Act of 1977 (citation omitted); Chapter 1002, Texas Estates Code; and

Chapter 107, Family Code; or a personal representative if the patient is deceased, provided that

the written consent specifies the following:

the information or medical records to be covered by the release;

the reasons or purposes for the release; and

the person to whom the information is to be released. (V.T.C.A., Occupations

Code §159.005, emphasis supplied).

This provision applies to release of medical records in situations other than court or

administrative proceedings, where the Medical Practice Act does not otherwise provide for an

exception to confidentiality. There is no exception to confidentiality, outside of a court or

administrative proceeding, where a patient is deceased. Thus, the deceased patient's spouse or

any other family member may consent to the release of the deceased patient's medical records

only if they are a "personal representative" of the deceased.

Personal Representative

A "personal representative" is someone specifically named by the Texas Estates Code as having

the authority, when appointed as such by the probate court, to transact business on the part of the

estate. For example, the person named as executor in the deceased's will have first preference. If

no qualified executor is named in the will, the surviving spouse has preference in administering

the estate. A person who will receive money or property from the estate has next priority. Next

of kin have next priority. Creditors of the deceased may even become personal representatives in

certain rare instances. On the other hand, minors, incompetents, convicted felons and

nonresidents are generally disqualified to administer estates. Note that the Estates Code does not

identify a mother, father, spouse, sibling, child or other next of kin as constituting a "personal

representative" although it is possible that any of these persons would be designated as a personal

representative of a deceased person by a court.

In order to be a personal representative, a person must apply to the probate court. If a will is to

be probated, the court may issue "letters testamentary." If no will is found to exist, the court may

issue "letters of administration." In any event, letters testamentary or of administration, or a

certificate by clerk of the court that letters testamentary or of administration have been issued are

sufficient evidence of the appointment and qualification of a personal representative and the date

of qualification. (Texas Probate Code, Chapter 301).

To whom should a physician release the medical records of a deceased patient? To his parents?

To his brother? To his wife? To all three? To anyone? These are the types of questions that the

legislature intended the courts to resolve through the probate process and the issuance of letters

testamentary or letters of administration. A physician is often not in any position to know or

determine the nature of a patient's relationship with family or friends, although this was once

more true than now. But a determination of a personal representative by the courts does delve

into the nuances and sensitive aspects of the relationships between persons, and this is one

reason, we believe, that the legislature did not remove the confidential nature of a patient's

medical records upon the patient's death.

Attorney General Opinion ORD-632

In 1994, the Texas Attorney General was asked whether certain persons had legal authority to

consent to the release of emergency medical services (EMS) records of a deceased person. The

laws pertaining to EMS records are almost identical to those in the Medical Practice Act.

In Attorney General Opinion ORD-632 (March 10-, 1995), the Attorney General opined that the

term "personal representative," when used in the context of EMS records release, has the same

meaning as that in the Estates Code (see discussion above). He noted, though, that the

Legislature has enacted provisions for "informal probate" and "collection of small estates" which

do not require that the probate court issue either letters testamentary or letters of administration.

Accordingly the Attorney General ruled that a city may not require a person seeking EMS records

(of deceased patients) to produce either letters testamentary or letters of administration when

such letters have not been offered, and must accept other evidence establishing a person's

personal representative status.

Although the Attorney General did not say so, these would logically include evidence showing

that someone is involved in "informal probate' or "small estates" such as affidavits of heirship.

The Attorney General opinion only applies to EMS records of deceased patients which are in the

hands of a city, not records of deceased patient in the hands of a private physician's office. The

Attorney General opinion regards release of records under the Open Records Act, which applies

to cities, not private parties. Thus, one cannot regard ORD-632 as prohibiting private physicians

from asking for letters testamentary or letters of administration when such letters have not been

offered. Their point about alternative probate methods is well taken, though, and is commonly

encountered when patients of modest means die.

Therefore, it is logical to postulate that, when someone seeks the records of a deceased patient

they can establish that they are a personal representative of the deceased by showing either letters

testamentary or letters of administration, or evidence that they are involved in "informal probate"

or "small estates" such as an affidavit of heirship.

Usual Release Rules Apply

As long as the appropriate person is identified to consent to the released of medical records, the

same rules apply to records of deceased patients as to the living. You have 15 business days to

respond to the release request or provide a written reason why not, and you may charge a fee for

preparation and release of the records.

The "Billing Exception" to Confidentiality

As alluded to above, the Medical Practice Act has a number of "exceptions" to confidentiality.

One allows the release of confidential information - including medical records - to "individuals,

corporations, or governmental agencies involved in the payment or collection of fees for medical

services rendered by a physician." This is the exception that allows physicians to file insurance

claims without the necessity of receiving a signed consent for release of records each and every

time a claim is filed. This exception allows a physician to bill the patient's health insurance

company for expenses related to the final illness.

Life Insurance Claims

The above referenced exception does not allow life insurance companies to request medical

records of their deceased insureds to process or contest claims, because they are obviously not

involved in the payment of fees for the physician's services during final illness. We have

encountered situations where attorneys for life insurance companies have requested records from

physicians, been rebuffed, and have threatened suit against the recalcitrant physician. This

typically only occurs where no will exists and there are no assets other than the life insurance

policy. We are wholly unaware of what type of a cause of action that the insurance company

would have at that point.

If this happens you may want to suggest that the life insurance company contact the survivors and

have someone produce evidence that they are involved in an alternative probate proceeding, such

as "informal probate" or a "small estate" or otherwise execute an affidavit of heirship. That

person may then sign the consent for release of medical records, which will specify that the life

insurance company representative will be the person to whom the records are to be released.

(The life insurance company could file suit for a declaratory judgment, asking the court to declare

that certain persons are entitled to collect insurance proceeds, ad subpoena the medical records as

part of that court action. However, the insurance company would probably not want to go to

such lengths unless the policy is sizeable).

Contact your own retained attorney if threats continue. You may want to consult your

professional liability carrier as well, though such situations would not typically be covered by a

professional liability policy because they are not health care liability claims.

Litigation Unrelated to the Physician

Suppose feuding heirs are contesting the deceased patient's will. Or suppose that relatives are

litigating a wrongful death claim against a third party. How do they gain access to the medical

records of the deceased as part of their lawsuit? First of all, a personal representative will

probably request medical records prior to the litigation being commenced. In that case, the

above-discussed rules apply. If the personal representative or the opposing party requests records

during the discovery phase of litigation, the usual rules of subpoenas apply.

It is clear that the medical records of the deceased would be "admissible" in court under the

Texas Rules of Evidence 509(e)(4) if they are arguably relevant to the patient's condition and

either party to the suit "relies" on the condition in their claim or defense. Thus, in a will contest

case, medical records would be relevant (and therefore admissible) if they disclosed the patient's

medical or mental condition, and someone relies on that condition to show that the patient did

not have the ability to execute the will. When something is admissible in court it is generally

"discoverable," meaning subject to subpoena.

Professional Liability Litigation

What if the relatives of a deceased patient are attempting to file a wrongful death claim against

you due to alleged medical negligence? The usual rules, which require the plaintiff's attorney to

send notice under the Medical Liability and Insurance Improvement Act, apply in these cases.

With respect to the records of deceased (or incompetent) patients, the Legislature amended the

Act in 1993 to provide as follows:

For the purposes of this section, and notwithstanding Section 5.08, Medical Practice Act (citation

omitted), or any other law, a request for the medical records of a deceased person or a person

who is incompetent shall be deemed to be valid if accompanied by an authorization signed by a

parent, spouse, or adult child of the deceased or incompetent person. (Article 4590i, §4.01(e),

Vernon's Texas Civil Statute).

This means that, if a patient is deceased, and the relatives are, through an attorney, giving notice

of their assertion of a possible claim against you due to alleged medical negligence, the attorney

can gain access to the medical records of the deceased patient by sending an authorization signed

by the parent, spouse, or adult child of the deceased (but only those persons; note that siblings are

not included). None of the "personal representative" discussion above applies to this limited

situation. Consult your professional liability carrier in this event.

Conclusions

In the absence of litigation, when a patient is deceased, the person who is authorized to consent

to release of medical records is that deceased patient's "personal representative" as that term is

defined in the Texas Probate Code. That would include someone who can show either letters

testamentary or letters of administration, or evidence that they are otherwise involved in

"informal probate" or "small estates" such as affidavits of heirship.

If the relatives of a deceased patient are in some type of litigation, such as a will contest, medical

records of the deceased patient can generally be subpoenaed through normal processes.

If the relatives of a deceased patient are attempting to file a wrongful death claim against you due

to alleged medical negligence, an attorney can gain access the medical records of the deceased

patient by sending an authorization signed by the parent, spouse, or adult child of the deceased.

That authorization will typically be appended to the notice of health care liability claim under the

Medical Liability and Insurance Improvement Act.

We hope this information is useful to you.

Prepared by:

Office of the General Counsel

Texas Medical Association

Revision Date: March 2015

NOTICE:

PLEASE CHECK THE TEXAS MEDICAL BOARD WEBSITE

(http://www.tmb.state.tx.us/page/board-rules) AND TEXAS CONSTITUTION AND

STATUTES (http://www.statutes.legis.state.tx.us/) FOR CURRENT UPDATES ON RULES

AND POLICIES WITH RESPECT TO THIS ISSUE.

NOTICE: The Texas Medical Association provides this information with the express understanding

that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing

legal advice and 3) that the information is of a general character. This is not a substitute for the advice

of an attorney. While every effort is made to ensure that content is complete, accurate and timely, TMA

cannot guarantee the accuracy and totality of the information contained in this publication and

assumes no legal responsibility for loss or damages resulting from the use of this content. You should

not rely on this information when dealing with personal legal matters; rather legal advice from

retained legal counsel should be sought.