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Michigan Law Revised to Allow Access to a Decedent's Medical Records

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Johanna M. Novak
Foster Swift Health Care Law Report
February 2009

In 2008, the Michigan Legislature revised Michigan's Medical Records Access Act to include "heirs at law" in the Act's definition of an authorized representative entitled to obtain copies of a deceased patient's medical records or autopsy reports.  The Act, found at MCL 333.26261 – 333.26271, was previously interpreted to generally only allow a deceased patient's heirs access to medical records or autopsy reports in the event of a will contest or for certain life insurance purposes, unless those heirs had been formally appointed by the probate court as the deceased patient's personal or authorized representative.  This created a great deal of confusion and expense for surviving family members who had not otherwise planned on appearing before the probate court.

While the revised Act expanded the definition of authorized representative to now allow a deceased patient's heirs at law access to his or her medical records and autopsy reports, the Act offers no definition of an heir at law, other than to state that it includes but is not limited to a spouse.  It also offers no guidance to health care providers on how to determine whether the requesting party is truly an heir at law.  For example, one might assume that a marriage certificate would suffice in determining whether the requesting party is the deceased patient's spouse.  However, a recent divorce could impact the validity of that certificate.  In addition, if a single patient with no children passes, and an apparent sibling requests that patient's records, is the sibling an heir at law?  It could depend on whether the patient's parents are still living, which would require some investigation on the part of the provider.

Michigan's Estates and Protected Individuals Code ("EPIC") defines an heir as the person who is entitled to the decedent's property under the laws of intestate succession.  Although the Act does not refer readers to EPIC to determine whether the requesting party is an heir at law, EPIC is an obvious place to look.  EPIC basically creates a priority list to determine how a decedent's property will be distributed if he or she has no will.  However, it seems unreasonable to expect a health care provider to review EPIC and research family history to identify a true heir at law to avoid a possible privacy law violation.

To alleviate some uncertainty in identifying whether the person requesting the records is truly an heir, consider developing an affidavit for the requesting party to sign.  By signing the affidavit in front of a notary, the requesting party is essentially testifying under oath that he or she is an heir according to the terms of the Act.  If, down the road, it is determined that the requesting party was not being truthful, at least you can produce that affidavit and explain that you relied on that testimony and provided the records in good faith.