AUGUSTA — Two summers ago, Dottie Perham-Whittier sat bawling beside her son Mack’s bed in Maine Medical Center’s intensive care unit, hoping he could fend off a life-threatening toxic shock that followed a normally routine cyst surgery.
She’d known for more than a year that Mack had seriously low blood counts that made it tough for his body to fight off infections.
The Lewiston woman said Friday that his father, who had cardiac issues, died a few months earlier after experiencing puzzling symptoms that suddenly took a dire turn.
Mack’s doctors said they’d like to review his dad’s medical records to see if any of the extensive information in them might shed light on the reason their young patient had such abnormal blood counts.
But Perham-Whittier couldn’t get them because she had divorced Mack’s father 18 months earlier and the executor of the estate wouldn’t agree to hand them over.
“It was abhorrently upsetting, as I know my father would have wanted to help me and my doctors in any way possible,” said Mack Whittier, who recovered and is now a 17-year-old looking forward to starting culinary studies in the fall.
Perham-Whittier, though, would still like to see those records since they may still offer some pointers about her son’s health. Moreover, she said, she wants to make sure that everyone in her situation can access potentially life-saving medical information for their children.
At her request, Sen. Nate Libby, D-Lewiston, is pushing a bill that would require health care providers to hand over “health care information of a deceased person to an immediate family member upon request of the family member, including the parent or guardian of a minor child of the deceased when there is documented need for parental medical history.”
The hitch, though, is that federal law may preclude it.
Federal medical privacy laws apply not just to the living. They also extend for 50 years past someone’s death.
That doesn’t mean they can’t be disclosed, however. The law allows medical providers to share information with one another to treat someone, including a family member.
Andrew MacLean, the deputy executive vice president and general counsel of the Maine Medical Association, testified that he’s not sure the bill is needed since medical providers are allowed generally to provide the information unless it’s inconsistent with a deceased patient’s expressed preference, which covers “the vast majority of situations.”
But, as Perham-Whittier found, not all of them.
Sometimes, an executor is the decision-maker on release of the records — and may not know or care what the patient would have wanted.
Whatever the reason, Perham-Whittier said, her former husband’s executor wouldn’t authorize their release.
It’s possible, though, that doctors could have bypassed any objection in a case of medical necessity.
“I would think that would trump any objection that would be given,” said Rep. Richard Malaby, R-Hancock.
Libby called it “a gray area” that he’s trying to explore in order to nail down a solution. He said he hopes to have more information next week.
For Perham-Whittier, the process obviously fell short.
“It was heart-wrenching,” she said. “I wanted to provide my son’s doctors with anything they needed to help Mack, but my hands were tied.”
Concerned for others as well as herself, she said she decided to seek a legal remedy. “I didn’t want to just let that go,” Perham-Whittier said.
Whittier told the Health and Human Services Committee recently that Libby’s bill “would prevent any family from being in that position in the future.”
“It was very frustrating to know that records that might have given my doctors information about my health were sitting at Central Maine Medical Center” and at the Veterans Administration hospital in Togus “just out of our reach,” Whittier said.
HIs mother said it “is critically important for a deceased parent’s medical history to be available to the remaining parent when their minor child’s health is at stake. Without it, the minor child does not have a full picture of his family medical history and neither do his medical providers.”
With some help from U.S. Sen. Susan Collins’ office, she managed to get records from Togus that help some but still hasn’t had any success in getting her hands on most of the tests that her son’s physicians sought back in August 2015.
“lf this legislation had been in place when my doctors felt it was medically necessary to review my father’s records, we would have had immediate access to them,” Whittier said, “l know that is what my father would have wanted, and l know he would be proud of me standing here today” talking to legislators about the issue.
Whittier said the measure should move forward.
“There are countless divorced families and single parents who may not have access to needed medical records for a minor if someone else is the executor” for a deceased parent, he said.
Perham-Whittier said she doesn’t other parents to feel the pain of having no access to information that could potentially be the difference life and death for their children.
“It’s a scary situation,” she said, and it’s one she hopes legislators can fix.

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