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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:
 

OPINION : No. 85-302
 

:
 

of : FEBRUARY 13, 1986 

:
 

JOHN K. VAN DE KAMP :
 

Attorney General :
 

:
 

RONALD M. WEISKOFF :
 

Deputy Attorney General :
 

:
 

THE HONORABLE GRAY DAVIS, MEMBER OF THE ASSEMBLY, 

has requested our opinion on the following question: 

When a patient in a private nursing home dies are his or her medical 

records available to private citizens who bear no legal or familial relationship to the 

deceased who wish to investigate the cause of death? 

CONCLUSION 

The medical records of a person who dies in a private nursing home are not 

available to private persons who bear no legal or familial relationship to the deceased 

who wish to investigate the cause of death. 

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ANALYSIS
 

Nursing homes in this state are required to maintain a detailed "health 

record" for each patient which centralizes "all current clinical information pertaining to 

the patient's stay." (22 Cal. Admin. Code, § 72543, subd. (g).)1 It goes without saying 

that such information is extremely personal and is protected within one's "zone of 

privacy" assured by article I, section 1, of the California Constitution. (Board of Medical 

Quality v. Gherardini (1979) 93 Cal.App.3d 669, 678-679; Wood v. Superior Court 

(1985) 166 Cal.App.3d 1138, 1145, 1147; Board of Medical Quality Assurance v. Hazel 

Hawkins Memorial Hospital (1982) 135 Cal.App.3d 561, 565; but see id., at 566, fn. 7.) 

Thus, while alive, a patient in a nursing home knows that his or her records will be kept 

confidential and disclosed only to authorized persons in accordance with law. (Cf. 22 

Cal. Admin. Code, §§ 72527(a)(9), 72543(b).) 

We are asked whether a private group that monitors the practices of nursing 

homes may have access to such patient records to investigate the cause(s) of death of 

patients who have died in order to determine whether anything improper has occurred, 

and, if so, to report that to the appropriate authorities.2 We are told that no one has given 

approval for such undertaking. The issue thus is whether private citizens who bear no 

legal or familial relation to deceased patients have a right to review their medical records. 

We conclude they do not. 

The California Legislature has been solicitous of protecting the privacy of 

one's medical information and for controlling its dissemination, and so several statutory 

enactments preserve the confidentiality of that information while a person is alive and 

after he or she dies. (Cf. 53 Ops.Cal.Atty.Gen. 136, 147.) Foremost among them are (1) 

the provisions of the Confidentiality of Medical Information Act (Civ. Code, pt. 2.6, § 56 

et seq.) and (2) the provisions of the Evidence Code that define and effect a physician1 The information required to be kept includes: an admission record, a current report of 

physical examination, current diagnoses, physician's orders (including drugs and treatment), 

progress notes, nurse's notes and progress notes, nurse assistants' records of patient care and 

treatment and observation, records of administration of drugs and medications; a record of any 

restraints imposed, documentation of oxygen administration, laboratory reports of all tests 

prescribed and completed, dietary records, a record of therapy treatment, and the patient's 

condition and diagnosis at discharge or final disposition. (22 Cal. Admin. Code, § 72547.) 

2 Nursing homes must already report all patient deaths to the Department of Health. (22 Cal. 

Admin. Code, § 72549, subd. (a.).) In addition, any person may file a complaint to request an 

inspection of a nursing home by the Department (Health & Saf. Code, § 1419) which must make 

an on-site inspection or investigation within 10 days unless it finds that the complaint was filed 

to harass the licensee or is without any reasonable basis (id., § 1420; cf. id., § 1421). 

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patient privilege (Evid. Code, div. 2, ch. 4, art. 6, §§ 990-1007). We discuss each of 

these in turn. 

1. The Confidentiality of Medical Information Act 

In 1979 the Legislature enacted the Confidentiality of Medical Information 

Act to govern the release and dissemination of one's "medical information." 

The term "medical information" is broadly defined as "any individually 

identifiable information in possession of . . . a provider of health care regarding a 

patient's medical history, mental or physical condition, or treatment" (§ 56.05, subd. (b)), 

and being so would embrace the information contained in the patient records that would 

be sought herein. (Cf. 22 Cal. Admin. Code, §§ 72543(g), 72547.) 

Under section 56.10, subdivision (a) of the Act, a nursing home, as a 

provider of health care (cf. § 56.05, subd. (d)), may not "disclose medical information 

regarding a patient . . . without first obtaining an authorization. . . ." (§ 56.10(a).)3 Since 

"patient" is defined as "any natural person, whether or not still living, who received 

health care services from a provider . . . and to whom medical information pertains" 

(§ 56.05, subd. (c), its protection applies equally to the deceased as well as the living 

patient. 

3 The subdivision recognizes many exceptions such as the mandatory disclosure of medical 

information when compelled by appropriate authority (§ 56.10, subd. (b)), and its discretionary 

disclosure to certain entities (id., subd. (c)). None of these or any other exception is pertinent to 

the situation presented herein. For example, no authorization is necessary for a provider of 

health care to disclose medical information where the disclosure is compelled by an 

administrative agency for purposes of adjudication (§ 56.10, subd. (b)(4)), or by a search warrant 

lawfully issued to a government law enforcement agency (id., subd. (b)(6)). Similarly, a 

provider of health care without an authorization may disclose information to a governmental 

entity responsible for paying for health care services rendered to the patient to the extent 

necessary to allow responsibility for payment to be determined and payment to be made. 

(§ 56.10, subd. (c)(2)). With like purport, the physician-patient privilege set forth in the 

Evidence Code will not protect a patient's medical records from being disclosed where a criminal 

proceeding is involved (Evid. Code, § 998), where information is required to or reported to a 

public employee or recorded in a public office (id., § 1006) or where a "proceeding is brought by 

a public entity to determine whether a right, authority, license, or privilege . . . should be revoked 

. . . ." (Id., § 1007; but see Board of Medical Quality Assurance v. Hawkins (1982) 135 

Cal.App.3d 561; Pating v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 608; 

Division of Medical Quality v. Gherardini (1979) 93 Cal.App.3d 669.) 

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In order for the necessary authorization for a release of medical information 

to be valid, it must follow the dictates of section 56.11 which prescribes its content and 

form. (§ 56.11; cf. § 56.05, subd. (a).) One of the specifications set forth therein is that 

an authorization be -

"(c) . . . signed and dated by one of the following 

"(1) The patient . . . 

"(2) The legal representative of the patient, if the patient is a minor 

or an incompetent . . . 

"(3) The spouse of the patient or the person financially responsible 

for the patient . . . [for limited purposes]. 

"(4) The beneficiary or personal representative of a deceased 

patient." (§ 56.11, subd. (c).) 

Under the Confidentiality of Medical Information Act then, the positive consent of a 

deceased's personal representative or beneficiary is a sine qua non for the release of the 

deceased's medical information. (§§ 56.10, 56.11; cf. § 56.05, subd. (a).)4 Without that 

consent actually in hand there can be no release of such information. 

A California health facility, such as a nursing home, is obligated to assure 

the confidentiality of the personal and medical records of its charges and to approve the 

release of such information to individuals outside the facility only in accordance with 

federal, state or local law. (Tit. 22, Cal. Admin. Code, §§ 72527(a)(9), 72543 (b).) The 

Confidentiality of Medical Information Act prohibits a provider of health care, in this 

case the private nursing home, from disclosing medical information regarding a patient 

without the requestor first having obtained the prescribed signed authorization for that 

information to be released. We are told that no one has given the persons seeking the 

records herein any authorization for such disclosure. Since those persons do not fit any 

of the categories which would exempt them from fulfilling the requirement that the 

The term "personal representative" ordinarily refers either to an "executor" or to an 

"administrator." (Kropp v. Sterling Sav. & Loan Assn. (1970) 9 Cal.App.3d 1033, 1042, citing 

Black's Law Dict. (4th ed. 1951) at 1466; see also 24 Cal.Jur.3d, Decedent's Estates, § 82.) In 

some contexts though, it can have a broader meaning and include heirs, next of kin, descendants, 

assignees, grantees, receivers, and trustees in insolvency. (Ibid.) We need not decide the scope 

of its meaning vis-a-vis section 56.10 because in the situation herein, no one has authorized the 

release of any medical information. 

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required authorization actually be obtained (see fn. 3, ante), the nursing home is bound to 

refuse to release the deceased patient's records to them. In other words, the medical 

records being sought would not be available to private persons who wish to investigate 

the cause of the patient's death. 

2. The Physician-Patient Privilege 

The physician-patient privilege found in the Evidence Code gives a patient 

the right to refuse to disclose, or prevent any other person from disclosing, the contents of 

his "confidential communications" with a person he believed to be authorized to practice 

medicine. (Evid. Code, §§ 990-994; Roberts v. Superior Court (1973) 9 Cal.3d 330, 341 

("The . . . privilege is that of the patient. . .").) The privilege would attach to those patient 

records maintained by a nursing home which memorialize such "confidential 

communications" between patient and physician. As defined by section 992 of the 

Evidence Code that would be: 

". . . information, including information obtained by an examination 

of the patient, transmitted between a patient and his physician in the course 

of that relationship and in confidence by a means which, so far as the 

patient is aware, discloses the information to no third persons other than 

those who are present to further the interest of the patient in the 

consultation or those to whom disclosure is reasonably necessary for the 

transmission of the information or the accomplishment of the purpose for 

which the physician is consulted, and includes a diagnosis made and the 

advice given by the physician in the course of that relationship." (Evid. 

Code, § 992.)5 

5 We need not pigeon-hole the many particular types of above-described records kept by a 

nursing home as part of its patient profile within this definition. Suffice it to say, since the 

physician-patient privilege covers one who consults or submits to an examination by a physician 

"for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his 

physical or mental or emotional condition" (Evid. Code, § 991 defining "patient") and since it 

covers advice given by the physician in the course of that relationship, the matters made 

privileged thereby would include all of a physician's records and notes regarding a patient, all 

records made by others of the physician's actions and orders and all records of treatment 

rendered upon them. (Cf. Rudnick v. Superior Court (1974) 11 Cal.3d 924, 930-931, 933; Wood 

v. Superior Court, supra 166 Cal.App.3d at 1147; cf. Roberts v. Superior Court (1973) 9 Cal.3d 

330, 340-342; Blue Cross v. Superior Court (1976) 61 Cal.App.3d 798, 800; Carlton v. Superior 

Court ((1968) 261 Cal.App.2d 282 (privilege to be liberally construed); Kramer v. Policy 

Holders Life Ins. Assn. (1935) 5 Cal.App.2d 380, 385 (ditto).) 

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Section 994 of the Evidence Code establishes the privileged status of such information6 

thus: 

"Subject to Section 912 [7

] and except as otherwise provided in this 

article[8

], the patient, whether or not a party, has a privilege to refuse to 

disclose, and to prevent another from disclosing, a confidential 

communication between patient and physician if the privilege is claimed 

by: 

"(a) The holder of the privilege; 

"(b) A person who is authorized to claim the privilege by the holder 

of the privilege; or 

"(c) The person who was the physician at the time of the confidential 

communication, but such person may not claim the privilege if there is no 

holder of the privilege in existence or if he is otherwise instructed by a 

person authorized to permit disclosure." 

While a patient is alive then, section 994 limits the right to claim the physician-patient 

privilege to: (1) its "holder," i.e., the patient himself or his guardian or conservator;9 (2) a 

6 At common law communications between physician and patient were not privileged. 

(Frederick v. Federal Life Ins. Co. (1936) 13 Cal.App.2d 585, 591; Kramer v. Policy Holders 

Life Ins. Assn., supra, 5 Cal.App.2d at 384.) We need not discuss herein the extent to which 

their being so is now constitutionally secured. (Compare Division of Medical Quality v. 

Gherardini (1979) 93 Cal.App.3d 669, 678-679 and Wood v. Superior Court ((1985) 166 

Cal.App.3d 1138, 1147, with Board of Medical Quality Assurance v. Hawkins (1982) 135 

Cal.App.3d 561, 566, fn. 7.) 

7 Section 912 provides that the physician-patient privilege is waived when the holder, without 

coercion, has disclosed or consented to disclosure of a significant part of a communication 

protected by it. (Id., subd. (a).) However a disclosure in confidence of a protected 

communication that is "reasonably necessary for the accomplishment of the purpose for which 

the . . . physician . . . was consulted, is not a waiver of the privilege." (Id., subd. (d).) 

8 Sections 996 through 1007 set forth specific situations in which the physician-patient 

privilege is not available. None of them is applicable herein. 

9 Section 993 defines "holder of the privilege" as follows: 

"As used in this article, 'holder of the privilege' means: 

"(a) The patient when he has no guardian or conservator. 

"(b) A guardian or conservator of the patient when the patient has a guardian 

or conservator. 

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person authorized to claim the privilege by the holder; or (3) the physician who received 

the confidential communication.10 (Rudnick v. Superior Court, supra, 11 Cal.3d at 929.) 

In Rudnick v. Superior Court though, the court focused on the similar 

phraseology contained in the definition of "confidential communication" found in section 

992 ("information obtained . . . in confidence by a means which . . . discloses the 

information to no third person other than those . . . to whom disclosure is reasonably 

necessary for . . . the accomplishment of the purpose for which the physician was 

consulted . . .") and the proviso found in section 912, subdivision (d), that the physicianpatient privilege is not waived where "disclosure [of a confidential communication] is 

reasonably necessary for the accomplishment of the purpose for which the . . . physician 

was consulted", and held that a third person to whom such a disclosure of confidential 

information is made may claim the physician-privilege on behalf of the patient. (11 

Cal.3d at 932, 933-934.) Said the court: 

"We therefore hold that a disclosure in confidence by a physician, 

with or without the consent of the patient, of communications protected by 

the physician-patient privilege to a third person to whom disclosure is 

reasonably necessary for the accomplishment of the purpose for which the 

physician is consulted confers upon the third person the right to claim the 

physician-patient privilege on behalf of the patient. In other words, that 

third person thereby becomes '[a] person who is authorized to claim the 

privilege by the holder of the privilege' within the meaning of section 994." 

(11 Cal.3d at 932.) 

It was held accordingly in that case that a pharmaceutical company could claim the 

physician-patient privilege on behalf of patients to bar discovery of adverse drug reaction 

reports that were submitted by their physicians, where the reports were submitted in 

confidence by the physicians involved and the submission was reasonably necessary to 

accomplish the purpose for which consultation was made. (Id., at 933-934.) (Accord, 

Blue Cross v. Superior Court, supra, 61 Cal.App.3d at 801 (prepaid health plan need not 

disclose claim files with patient's identities and ailments because that privileged 

"(c) The personal representative of the patient if the patient is dead." 

10 Indeed, unless instructed otherwise by one authorized to do so, the physician must protect a 

confidential patient-physician communication and assert the privilege on behalf of the absent 

patient. (Evid. Code, § 995 ("The physician . . . shall claim the privilege whenever he is present 

when the communication is sought to be disclosed. . ."); Bus. & Prof. Code, § 2263 ("The 

willful, unauthorized violation of professional confidence constitutes unprofessional conduct"); 

Roberts v. Superior Court, supra, 9 Cal.3d at 341; Marcus v. Superior Court (1971) 18 

Cal.App.3d 22, 24.) 

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information was imparted for the purpose of paying the doctor's fees and was therefore 

reasonably necessary to achieve the purpose for which the physician was consulted).) 

In Board of Medical Quality Assurance v. Gherardini, supra, 93 

Cal.App.3d 669, the court, on the authority of Rudnick, held that a hospital, "a third party 

custodian of privileged matter, ha[d] standing to assert the statutory privilege on behalf of 

the absent nonconsenting patient." (Id., at 675; accord, Roberts v. Superior Court, supra, 

9 Cal.3d at 341.) A nursing home would have the same standing to assert the privilege 

on behalf of their absent nonconsenting patients. But what of that authority with respect 

to those patients who have died. Is there a privilege left for the home to assert? 

It is clear that when a patient dies, the physician-patient privilege continues 

to exist, for a time at least with the deceased's "personal representative" the holder of the 

privilege. (Evid. Code, § 993, subd. (c), fn. 9, ante; cf. fn. 4, ante.) While he or she 

functions as such, a physician to whom a privileged communication was made continues 

to have an obligation to claim the privilege on behalf of the deceased unless instructed 

otherwise. (Evid. Code, §§ 995, 994, subd. (c).) By extension, the third party recipients 

of privileged patient medical information to whom it was necessarily imparted to achieve 

the purpose for which the patient had consulted the physician, would continue to have the 

same obligation to claim the privilege on behalf of the deceased patient.11 Again this 

category would include a nursing home which cared for and treated a patient pursuant to 

physician's orders. (Board of Medical Quality Assurance v. Gherardini, supra, 93 

Cal.App.3d 669; cf. Rudnick v. Superior Court, supra, 11 Cal.3d 924.) 

Since "there can be no discovery of matter which is privileged" (Rudnick v. 

Superior Court, supra, 11 Cal.3d at 929), this much then is certain: to the extent that the 

medical records sought by the private parties herein involve "confidential 

communications" between the deceased and his or her physician(s), they could not be 

obtained from a nursing home in face of opposition by the deceased's personal 

representative. A posthumous privilege protecting them would still exist and if its new 

holder "does not consent by word or deed to . . . disclosure [it is] not waived. . . ." (Id., at 

11 Needless to say the key actor vis-a-vis the posthumous privilege is the personal 

representative for only he or she may waive it. The Evidence Code provides that the physician 

must claim the privilege unless the personal representative instructs otherwise (Evid. Code, 

§§ 995, 993(c); see fn. 10, ante) and for that protection to be meaningful, those third parties to 

whom a physician disclosed "confidential communications" as a necessity would also be 

required to exercise their derivative right and claim the privilege unless so instructed. (Cf. 

Rudnick v. Superior Court, supra, 11 Cal.3d at 931 & 931, fn. 2, quoting official comment to 

§ 912(d) by the Senate Committee on Judiciary; Roberts v. Superior Court, supra, 9 Cal.3d at 

341.) 

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932-933.) Again, we are told that no one has consented to the private group's obtaining 

the deceased patient's records. While the physician-patient privilege is still viable,12 it too 

would prevent them from doing so. 

We therefore conclude that the medical records of a person who dies in a 

private nursing home are not available to private persons who bear no legal or familial 

relationship to the deceased who wish to investigate the cause of death. 

***** 

12 After an estate has been distributed and the personal representative discharged there no 

longer would be a "holder" to claim and force claim of the privilege. (§ 994, and see Witkin, 

California Evidence, § 849 (2d ed. 1966) at 789, citing Law Rev. Comm. Comment to Evid. 

Code, § 993; but see 6 Cal. Law Revision Comm's Rep. 408-410 (1964).) 

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