The Story of Uncle Benny

In my wife’s family lore they tell the story from many years ago about Uncle Benny who didn’t trust his doctors. One day Benny experienced crushing chest pains and was rushed by ambulance to the hospital. His wife and a host of other close relatives chased in a car behind. Once examined in the emergency room, he was transferred to a regular hospital room.

It seemed like eternity until a doctor arrived. The family nervously gathered around Benny’s bed while the doctor looked at everyone and smiled. “I have good news, Benny!” the doctor exclaimed. “You didn’t suffer a heart attack! You might have had gas or something else, but you’re just fine. It will take a few minutes but as soon as we process the paperwork you’ll be released to go home.”

Everyone in the room exhaled, chattering away with pleasure over the news. But not Benny.

As soon as the doctor left the room, he picked up the telephone and dialed zero on the rotary dial to reach the hospital receptionist.

“What are you doing, Benny?” his wife hollered at him.

“Shush!” Benny waved his hand in her direction pressing the receiver to his ear. “Hello? Is this the hospital receptionist?” Benny shouted into the telephone. “Tell me please. What is the condition of a patient you have by the name of Bernard Leber? ……CRITICAL!? CRITICAL YOU SAY?!?!?”

You see, Benny didn’t believe his doctor and instead chose to call the front desk of the hospital to see what condition they had him listed in. That was back in the day when you could call a hospital’s switchboard and find out a patient’s condition simply by asking.  Benny’s condition hadn’t been updated yet, and he believed what the receptionist told him over what the doctor had said.

There wouldn’t be such a funny story if Benny had been in a hospital today. The Health Insurance Portability and Accountability Act (HIPAA) prohibits doctors and hospitals from discussing anyone’s medical condition or history without that person signing a release. When you go to your doctor’s office these days you are typically asked to sign such a release naming the individuals the doctor is allowed to talk to without violating your privacy rights.

To violate HIPAA could result in the doctor or hospital committing a federal crime. Which leads me to today’s estate planning topic – and that is the important document that everyone should have as a part of their estate plan – the general HIPAA waiver and release.

Suppose that you are in an automobile accident. If you are rushed to the hospital and are unable to sign that hospital’s HIPAA waiver, then the doctors and other hospital support personnel are prohibited under federal law from discussing your condition even with your spouse or children. I would agree that this law is overzealous and borders on silly – but that’s what we have.

And if you don’t believe that a hospital would limit your spouse’s access to you in such an event – take it from me – they will. You see, thirteen years ago while alone on training ride on my bicycle, a car hit me. I was actually on the Summerlin Road bike path and not on the street itself when a car coming in or going out of a subdivision caused me to crash.

I don’t remember much about the accident. Whoever hit me fled the scene. A Good Samaritan must have called 911 – I was unconscious – and I was eventually rushed by helicopter to the Lee Memorial Trauma Center downtown. I had suffered skull fractures (my bicycle helmet saved my life) and was bleeding out of my ears.  I was a John Doe in the helicopter since no one looked in my bike’s saddlebag where I kept a health insurance card exactly for this scenario.  Eventually I was able to tell them Patti’s name and cell phone number. She got a very scary call and rushed to the hospital.

Where they wouldn’t let her see me.

Why? Because I hadn’t signed a HIPAA waiver! I was semi-conscious being treated in the emergency room.  But since I hadn’t signed a HIPAA waiver they wouldn’t let her in to talk to the doctors or to learn exactly what my condition was.

Luckily I have good friends who are doctors who also rushed to the ER and let Patti know what was going on. But it was frustrating for her.

After that incident I decided to include in my client’s general estate planning portfolio a standard HIPAA waiver and secure, mobile access to that waiver that allows each client to list any and all individuals he or she would want to receive their health status from doctors and hospitals in case they hadn’t signed that specific hospital’s waiver.

I believe that many other estate-planning attorneys are now following this protocol. If you don’t have such a document in your planning portfolio, you might want to ask your estate-planning attorney for one.

Because unlike my wife’s Uncle Benny, your family can’t dial the hospital receptionist to learn your current condition – even if that condition isn’t exactly up to the second accurate!

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Craig R. Hersch

  • Senior Partner,
    • Sheppard Law Firm
  • Florida Bar Board Certified Estate Planning Attorney / CPA
  • Editorial Advisory Board Member,
    • Trusts & Estates Magazine
  • Founder & Board Member,
    • State Chartered Trust Company