When a loved one dies, next of kin may face questions about the medical treatment surrounding the death. If a medical error is suspected, next of kin often want access to medical information and sometimes logging data from a patient's record. Logging data shows who accessed and altered the record at what time. But what is the legal situation? Who has the right to access this logging data? In this blog, I discuss these questions using legislation and case law.
Right to medical information from next of kin
In the Netherlands, medical data is subject to medical confidentiality. This professional secrecy is regulated in Article 7:457 of the Civil Code (BW) and implies that a healthcare provider must maintain secrecy about a patient's health data, even if the patient has died. For a long time, there was little room for breaking this secrecy. Case law allowed next of kin to inspect a deceased person's medical records in the case of living consent or "presumed consent," but a legal basis for inspection did not exist.
In response to the Bill to allow access to medical records of deceased patient the right of access for next of kin was enshrined in law as of January 1, 2020. Article 7:458a (1) was added to the Civil Code, and pursuant to subsection c of the article, "anyone who has a compelling interest and makes it plausible that this interest may be harmed and that inspection or copying of data from the file is necessary for the promotion of this interest" is entitled to copies of data from a deceased patient's file.
In the directive Dealing with medical data and the Guidance on access rights for next of kin of the KNMG, the article is detailed. Next of kin may have access if:
- the patient has given consent to this in life;
- the next of kin has received notice of an incident; or
- a compelling interest is present.
For example, there may be a compelling interest in because of financial reasons, suspicion of medical malpractice, or obtaining information about parentage and hereditary conditions. Grieving is not a compelling interest.
The guideline and handbook emphasize that each application must be carefully reviewed and that only the medical information relevant to the application - not the entire medical record - should be provided.
The exemption ground of "presumed consent" used in the past was not included in the law because "presumed consent" is considered undermining in a system based on written consent.
Right to access logging data
Logging data are actually the digital traces kept in electronic health records (EHRs). This data provides insight into:
- Who accessed the file;
- What changes have been made, and;
- At what times this happened.
Logging data can help verify that a patient record has been maintained correctly and that there may have been unauthorized access or modifications to the record notes.
Since July 1, 2020, patients have the right to inspect or copy logging data under Article 15e Additional provisions processing personal data in healthcare law(Wabvpz). This right resulted from the General Data Protection Regulation (AVG), under which healthcare providers were already required to maintain logging and under which it must be transparent who has accessed a person's data.
However, there is no explicit provision in the AVG and Wabvpz under which next of kin are entitled to logging data. The AVG explicitly does not apply to deceased persons, and pursuant to article 15e of the Wabpvz, only "the client" - and therefore a living person - is entitled to access logging data. An article under which next of kin also have a right (under conditions) to access logging data - such as article 7:458a of the Civil Code - is not in the AVG nor in the Wabvpz.
In addition, the Zeeland-West Brabant District Court (ECLI:NL:RBZWB:2024:471) ruled in summary proceedings that logging data do not form part of the deceased's file, as a result of which the next of kin would not be entitled to inspect logging data on the basis of Section 7:458a of the Dutch Civil Code. After all, that article regulates inspection of the file of a deceased patient, but not of data that are not part of the file, according to the court. However, the court did not explain why logging data would not be part of the patient file.
For now, because of the summary judgment ruling and the lack of an explicit legal basis, it appears that next of kin have no right to access logging data.
The importance of logging data in medical liability cases
That logging data can be important in medical liability cases, I illustrate through some real-life examples. For example, I assist a family who lost their husband and father. The wife suspected pneumonia in her husband, called the family doctor's office requesting a consultation or antibiotics, but was advised through the assistant to watch and take cough medicine. A day later, their loved one had died. Although the family doctor has stated that he or she looked into the deceased's file with the assistant, the family highly doubts that this really happened. They suspect that the family physician did not look into the file and take file notes until later. However, the general practice refuses to allow access to the logging data, and so the family has to make do with the medical record - not knowing when their loved one's record was accessed, supplemented and/or amended. This weakens the family's evidentiary position.
That logging data can provide crucial evidence is also evident from another case study. Requested logging data revealed that the file notes first stated that "patient had had a road rage" - which was an important fact for assessing liability - while this phrase was later removed for unclear reasons. Without access to logging data, it could not have been shown that a road rage had occurred.
In another case, the health care provider had subsequently supplemented a file note by adding a catch-all opinion. That safety net opinion should indeed have been given according to the applicable guidelines, but my clients were certain that they had not been given this opinion. The modification of the case note - evidenced by logging data - confirmed clients' position.
Relatives may thus have a substantial interest in accessing logging data of a deceased person. Currently, the interests of health care providers and insurers are primarily protected.
My vision
The fact that next of kin cannot - under certain conditions - gain access to logging data is undesirable in my view, and it is also undesirable that next of kin have to engage in lengthy legal proceedings in order to gain access to logging data after all.
Contrary to the opinion of the Zeeland-West Brabant District Court, in my view, logging data are an inseparable part of a patient's medical record. After all, logging data provide important information about when care was provided, the person who provided the care, and the order in which care was provided to the patient. Logging data therefore contain information about the patient's health and "the operations carried out in respect of the patient", as a result of which the logging data do, in my view, fall under the dossier as referred to in Sections 7:454 and 7:458a of the Civil Code. Therefore, under the same conditions under which next of kin are entitled to inspect the medical file, they should also be able to inspect the logging data.
Moreover, giving access to logging data does not unreasonably violate the deceased's right to privacy. After all, the next of kin is already entitled to all other relevant medical information.
By adopting this approach, legal uncertainty is eliminated and next of kin have quicker access to information they need to ascertain the truth. This not only serves the interests of the next of kin, but also strengthens trust in the healthcare industry.
If you have questions about this blog, please contact the author, Maura van de Velde