Grave Secrets: Legal and Ethical Analysis of Postmortem Confidentiality

42 Pages Posted: 26 Feb 2002 Last revised: 2 Jul 2014

See all articles by Jessica Wilen Berg

Jessica Wilen Berg

Case Western Reserve University School of Law

Abstract

*A young man finds a letter from his recently deceased's mother's therapist and calls the psychologist to get information about whether his mother sought counseling because of difficulties in their relationship. The therapist reassures the son that his mother came for help in dealing with her terminal illness.

*A now-adult child sues her deceased father's physician for failing to warn her that her father's death when she was 10 years old was due to colon cancer, a potentially inheritable disease.

*Following the death of Linda McCartney, a number of newspapers reporters, suspecting physician-assisted suicide, demanded access to her death certificate or other medical records.

The legal and ethical protections regarding confidentiality of health information have undergone significant scrutiny in the past few years and a variety of new legislation as well as changes to current legislation has recently been promulgated at both the federal and state levels. Developments in electronic media as well as advances in genetic medicine have challenged our traditional understanding of personal information. The result has been a variety of attempts to craft privacy protections in different settings. But despite all the attention directed at this topic, there has been one area that has been largely ignored-protections of confidentiality after death.

There is no reason to think that confidentiality protections automatically cease upon a patient's death, and yet keeping information perpetually secret may be similarly untenable. This article evaluates the nature of the interests in both privacy and disclosure and argues that the extent of the protections should vary depending on the sensitivity of the information in question, the time elapsed since death, and the strength of the interest in disclosure.

Suggested Citation

Berg, Jessica Wilen, Grave Secrets: Legal and Ethical Analysis of Postmortem Confidentiality. Connecticut Law Review, Vol. 34, pp. 81-122, 2001. Available at SSRN: https://ssrn.com/abstract=301286

Jessica Wilen Berg (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-6363 (Phone)
216-368-2086 (Fax)

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