New Ohio Law Lets Families Ask the Probate Court for a Loved One's Medical Records Before Deciding on a Wrongful Death Case

Published December 28, 2018 · New Laws

One of the first questions a family asks after an unexpected death in a hospital or nursing home is simple: what happened? One of the first obstacles is just as simple. The medical records that hold the answer are confidential, and providers often will not release them until someone has legal authority to act for the person who died.

Until now, getting that authority usually meant opening a full estate in probate court, sometimes before the family even knew whether there was anything to pursue. A bill signed this month changes that. Substitute House Bill 595 of the 132nd General Assembly creates a simpler path for families to obtain a loved one's medical and billing records for the specific purpose of deciding whether to bring a claim.

The bill

House Bill 595 is a large bill that covers many probate and trust matters. According to the legislature's records, the Senate passed it and the House concurred on December 13, 2018. The Legislative Service Commission's records list the governor's action on December 21, 2018, and the legislature lists the effective date as March 22, 2019. Until then, the new procedures are not yet in effect.

Several parts of the bill matter to families after a death.

A new way to get medical records: R.C. 2113.032

The bill enacts a new section, R.C. 2113.032. Under it:

• Who may apply. Any person who is eligible to be appointed personal representative of the estate under Ohio law, or who is named as executor in a will, may file an application.
• Where. In the probate court of the county where your loved one lived.
• What for. The release of your loved one's medical records and medical billing records for use in evaluating a potential wrongful death, personal injury, or survivorship action.
• Before an estate is opened. The application may be filed before any application to administer the estate, and the statute says nothing in it requires opening an estate if none is otherwise needed.
• Notice to the family. The application must include a form listing the known surviving spouse, children, next of kin, legatees, and devisees. The court sends a copy to those people unless it directs otherwise.
• The order. After the filing, payment of a fee set by the court, and at least ten days after the court sends notice to the listed family members, the court may order the records released, with or without a hearing. The order directs the medical providers who treated your loved one to release the records to the applicant for the limited purpose of deciding whether to file a claim.
• Confidentiality. The records are confidential and are not to be made available for public viewing unless the law or a later court order provides otherwise.
• A report back. Once the records are received, and before the statute of limitations expires, the applicant must file a report certifying that the records were received and indicating whether an estate administration will be filed.

Why this matters

It lets families get answers first. Many families do not want to start a lawsuit. They want to know whether the care their loved one received was reasonable. This procedure lets the records be reviewed before that decision is made.

It respects other family members. Because notice goes to the spouse, children, and next of kin, the process is open within the family. That can help avoid misunderstandings when relatives are not all of one mind.

It helps with the clock. A wrongful death action generally must be filed within two years after the death under R.C. 2125.02(D)(1), and some related claims arising from medical care face shorter deadlines. Medical records are usually the first thing a lawyer and a qualified medical reviewer need. Earlier access means more time to evaluate a case carefully. Our earlier post on Howard v. HCR ManorCare shows how timing disputes can arise in nursing home cases.

It is not a substitute for an estate if you go forward. A wrongful death action is brought in the name of the personal representative under R.C. 2125.02(A)(1). If the records show a claim worth pursuing, an estate will still need to be opened and a personal representative appointed. The new section simply lets the family look before taking that step.

Other changes families should know about

The bill makes several other changes that touch families after a death:

• Coroner's duties and belongings. Amendments to R.C. 313.14 address the coroner's duty to notify the person who holds the right to decide on disposition of the body, and they require a person who receives the deceased person's possessions from the coroner to deliver them to the executor or administrator or to others legally entitled to them.
• Benefiting from a killing. Ohio law already bars a person convicted of certain homicide offenses from benefiting from the victim's death. The bill extends R.C. 2105.19 to involuntary manslaughter under R.C. 2903.04(A), except where the death was a proximate result of a felony vehicular homicide offense.
• Trusts for children. A new R.C. 2111.182 allows the probate court to order that all or part of money a minor receives, including from a settlement or judgment, be placed in a trust for the child until age 25.

What to do now

If your loved one died recently and you have questions about the care he or she received, you do not need to wait for this law to take effect to begin gathering information. Keep copies of everything the hospital or facility gave you, write down names and dates, and talk with a lawyer about how to obtain the full chart now. If the coroner was involved, our post on requesting an autopsy and coroner records explains how next of kin can ask for those records.

Our pages on medical malpractice deaths and nursing home deaths explain how these cases are evaluated, and our overview of Ohio wrongful death law covers who brings the claim and who benefits.