A reader reached out with this question: “My husband died in the hospital of COVID. I was also very sick with COVID at the time, and wasn’t allowed to say goodbye to him or see his body before it was cremated. I don’t know what happened before he died and I desperately need closure. Can a malpractice lawyer handle this as a wrongful death claim?” First, we are so sorry for your loss and the pain this situation has caused you.
As to whether or not a malpractice lawyer can obtain your late husband’s records and then make a case for wrongful death? That’s a complicated question. We’ll go over some unique considerations that may affect other readers below.
Can A Malpractice Lawyer Help Me Sue For a COVID Death?
There is no doubt the COVID-19 pandemic has devastating and far-reaching effects on healthcare facilities and providers. These effects also impacted patient care. However, that doesn’t necessarily mean certain COVID-19 deaths may result in a valid legal claim.
First, let’s look at which courts recently ruled that families may file suits for COVID deaths. A San Francisco court ruled a family could sue a woman’s employer after her husband died from COVID. This is because the wife caught COVID from workplace exposure, then passed the virus on to her now-deceased husband.
But in another California courtroom, a jury ruled liability laws protect hospitals from wrongful death lawsuits. This case ruled that if a patient contracts COVID-19 while in the hospital for another reason and then dies, the hospital isn’t legally liable.
Clearly, the one constant during a pandemic is that everything will continue to change. Answers to important questions, like who can be held accountable – and when – for a loved one’s death, will continue to evolve as both the legal and medical systems adjust to our “new normal.” A malpractice lawyer in your state may better clarify how this issue impacts your specific case.
What Rights Does a Spouse Have?
But there are other considerations here. For example, there is the issue of medical records. HIPAA complicates the seemingly simple task of requesting a deceased spouse’s medical records, even in non-pandemic times. Even more confusing is knowing if someone has a plan in place to grant access to their medical records after death.
Simply put, if someone doesn’t specify who has access to medical records after death, certain laws can make it harder to get them.
A pandemic that’s overwhelmed healthcare facilities, providers, and staff adds another complication. Reduced workforces and logistical issues can also create additional delays.
If you can sign paperwork that grants your chosen loved ones rights to obtain your medical records after your death, do that now. It will potentially prevent much hassle in the future.
But what if that’s not an option? Then your loved one(s) must understand their state’s laws to know if they can obtain your medical records. Talking with a malpractice lawyer might help in this regard. Of course, you can also try requesting the records yourself first.
Next is the question of whether the hospital had a right to cremate someone without their spouse’s consent. Typically, next of kin must authorize a deceased person’s cremation. This can vary from state to state. But generally speaking, family must make that decision, if any relatives exist.
But because COVID changed everything, there might be exceptions to this rule. One example is emergency declarations put into place by state governors and other authorities. This means the coroner in the reader’s case may have had permission to override standard guidelines due to a state of emergency.
Should You Talk to a Malpractice Lawyer About a Wrongful Death Claim?
Knowing if you have a wrongful death case after a loved one passes from COVID-19 is often confusing and complicated. A malpractice lawyer can answer your questions and better you understand if you may have a case. It also helps to hear when your unique situation likely cannot produce a successful medical malpractice claim.
Ready to see if you may qualify? Complete your free online medical malpractice case evaluation now!
Lisa Allen is a writer and editor who lives in suburban Kansas City. She holds MFAs in Creative Nonfiction and Poetry, both from the Solstice Low-Residency Program in Creative Writing at Pine Manor College. Prior to becoming a writer, Lisa worked as a paralegal, where she specialized in real estate in and around Chicago.