Did Michael Jackson’s former nurse or doctor seek personal publicity and blatantly ignore privacy rights in violation of HIPAA? On a related note, does the attorney client privilege survive the client’s death?
By Rick Shapiro, Attorney/Co-Editor of Va. Beach, Norfolk, NE NC Injuryboard Blogs
HIPAA Governs Patient Privacy As To Medical Providers-
HIPAA is the main federal law protecting patient privacy and confidentiality, which stands for the Health Insurance Portability and Accountability Act, and it protects confidential patient information. Yes, it has been an administrative headache for medical providers, but has an important overall purpose of protecting this information from the encroaching "Big Brother" syndrome of your patient information getting into the hands of employer’s or prying eyes of those with no rights to this information. The Act might just protect you from your doctor or nurse volunteering to speak out on a national news program like CNN and announcing to the world that you abused drugs, or may stop your provider from saying something to harm your reputation in print! Whether nutritionist Cherilyn Lee did or did not breach confidentiality would be up to the board governing her profession, presumably in California and believe me, lots of folks have emailed the California Board of Registered Nursing (BRN) asking this question.
As to the privacy rights of patients surviving death under HIPAA the World Privacy Forum is a nonprofit, non-partisan, 501(c)(3), public interest research group and its website includes the following on this point:
Do Privacy Rights Survive Death?
Yes. Under HIPAA, a patient’s privacy rights survive death and last forever. We are not sure how much sense that makes, but that is what the rule provides. A deceased patient’s legally authorized executor or administrator, or a person who is otherwise legally authorized to act on the behalf of the deceased patient or patient’s estate, can exercise the privacy rights of a patient.
Attorney Client Privilege Survives Death-
The attorney-client privilege would not simply evaporate when your client expired/died, and respecting a public figure like Michael Jackson any disclosures clearly could have a possible adverse interest on the client’s estate.
As a matter of fact the US Supreme Court ruled in 1998 that the attorney client privilege survives death in Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998).
There, the United States Supreme Court held that there is no posthumous exception to the attorney-client privilege for communications with substantial impact on criminal proceedings.
The Supreme Court stated that preservation of the privilege after death would be consistent with a clients’ best interests. Survival of the privilege would encourage the kind of open and frank communication between clients and their lawyer which the privilege was intended to achieve. The court did touch on reputation, civil liability, and potential harm to friends and family, as other reasons supporting the attorney client privilege "surviving" death of the client.
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About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard as a pro bono service to consumers. Lawyers licensed in: VA, NC, SC, WV, DC, KY, who handle car, truck, railroad, and medical negligence cases and more.