Kat A. Rito, Partner - May 19, 2015
Medical records will always be at the heart of evidentiary efforts in malpractice litigation. They establish the obvious: facts relating to the underlying alleged breach of the standard of care. However, medical records are not always useful as sources of evidence for other components of a plaintiff’s claim, such as causation and damages.
To the extent a plaintiff’s injury might have been caused or exacerbated by an event outside health care, which the patient opts not to report to the health care provider, or to the extent a plaintiff may be exaggerating his injury in his subjective discussions with his health care provider, those facts would not be evident from the medical records. And so, attorneys must seek out other evidence through the discovery process in order to traverse the veracity of a plaintiff’s injury allegations.
In the past, attorneys have resorted to enlisting a private investigator to monitor a plaintiff as the plaintiff goes about his daily activities, or hoped that the plaintiff might candidly disclose information contradicting lawsuit allegations through the deposition process. Attorneys might also subpoena employment records to determine whether the plaintiff’s injury, as alleged, is evident in his recent work history.
The rise of social media platforms in the mid-2000’s, such as Facebook, Twitter and Instagram, caused the field of e-discovery to become an important target for discovery efforts in medical malpractice litigation. These platforms allow any individual with internet access to memorialize and broadcast their daily activities, thoughts or other life events in real time. Based on a 2014 study, 71% of online adults use Facebook; 23% use Twitter and 26% use Instagram, respectively. The rise of smartphones with internet connectivity and specially-designed applications that facilitate the use of social media platforms via cell phone enable an individual to upload information about themselves in real time, in photograph, text or video, for dissemination to others in their virtual community. In fact, nearly 40% of all cell phone users utilize their preferred social networking sites on their cell phones.
Social media is now ubiquitous, and it is commonly sought in the medical malpractice discovery process to obtain data that illustrates the life and activities of a plaintiff claiming physical injury. The information is particularly useful because it can be used to disprove the scope of injuries and limitations alleged by a plaintiff in his personal injury case. For example, in one of the first cases in which I obtained a plaintiff’s social media history as a means of cross-examining his disability claims, post-incident, the plaintiff had uploaded photographs of himself, self-identified, participating in a local bull-riding event. Needless to say, this must have been quite the undertaking for an individual who alleged his neck and back injuries made it impossible to walk the length of his driveway! The case settled shortly thereafter.
There is a new component to social media which provides not only a window into a plaintiff’s social activity, but also a cache of biological data and geolocation information. The newest trend in social data sharing comes in the form of “wearables,” electronic devices that an individual can affix to his body, designed to monitor, record and store the individual’s biological data, including heart rate, steps taken in a given day, calories burned, hours slept or minutes of physical exertion. Certain wearables also track the path taken by an individual through the application of GPS technology, and many wearables also permit users to upload additional health information into the device, such as their weight, dietary consumption and specific physical events or milestones, such as competition in an athletic event.
These devices have long been used by professional and weekend athletes, particularly distance runners and cyclists, as a means to track their progression in their sport. However, as personal fitness has been prioritized by the general public, and as technology has advanced to simplify and lower the costs of such devices, all sectors of the public have embraced wearable technology as a means of self-monitoring health and fitness.
One of the most popular of the wearables is the Fitbit, a device that straps around the wrist, much like a watch, and constantly records the wearer’s biological data while being worn. The Fitbit syncs to a “tracking application” which can be downloaded either to the user’s computer or smart phone. The application stores and acts as an access portal for the data mined by the Fitbit (stored locally on the user’s device, as well as on Fitbit’s own servers), for the user to review in making his own self-assessment of his health and activity levels.
To the extent the Plaintiff himself is willingly harvesting, collecting and storing this biological data for his own consumption, there is no reason this information cannot be attainable for use in civil litigation. In instances where a plaintiff claims a physical injury, and seeks to recover damages arising out of physical injury, his biological data, which documents his daily physical exertion, for example, is clearly relevant to corroborate the plaintiff’s damage allegations in the lawsuit and therefore meets the relevance test for admissibility under La. C.E. art. 401: “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
As you can see, such biological information would be highly probative and relevant, depending on the exact nature of a plaintiff’s claims. Although some of the wearable data is “medical” in nature, because the information is collected and stored by the plaintiff, and not his health care provider, one would not expect data collected through wearables to be subject to HIPAA, which protects the privacy of individually-identifiable health information, held by organizations subject to HIPAA: health care plans, health care clearing houses and health care providers.
Thus, data monitoring by a wearable (unless it was prescribed by the plaintiff’s physician) is not subject to HIPAA privacy rules and should be attainable through normal discovery channels. Nothing in the law could be construed such that HIPAA would prohibit a defense attorney’s collection of wearable device data from the Plaintiff, who, as an individual, willingly collected and maintained this biological data on himself for his own use. However, if this data is transferred in any way to a medical professional in the course of providing a health care service to the Plaintiff, that date should be considered part of the patient’s health records, and HIPAA would now cover that information.
that disclosure is reasonably necessary to comply with law, regulation, valid legal process (e.g., subpoenas or warrants served on us), or governmental or regulatory request . . . If we are going to release your data, we will do our best to provide you with notice in advance by e-mail, unless we are prohibited from doing so.
Furthermore, Fitbit informs its users that all Personal Identifiable Information uploaded to its devices or applications will be maintained, even if altered by the user on their own dashboard application:
Data that you provide to Fitbit through the Site can be modified on your dashboard or Fitbit account preferences. If you remove data from your Fitbit account, it will no longer appear to you or others who use the Fitbit Service. Backups of that data will remain associated with your Fitbit account and in our archived servers.
Once the defense has obtained the Plaintiff’s wearable device data through discovery, through the plaintiff’s voluntary production of same, or through a third-party subpoena to the wearable company which maintains the data for that device, can it be used in litigation as evidence of the scope of the plaintiff’s physical abilities, or conversely, his disabilities? While there is no precedent yet for the weight such information would provide in a court of law, there is no reason that evidence obtained through data harvesting on a plaintiff’s wearable device cannot be submitted for factfinder consideration, along with all other parties’ evidence as proof, or denial, of a plaintiff’s claimed injuries. The caveat of course, is that the evidence must meet the general standards of admissibility set forth under Louisiana’s Code of Evidence.
Assuming the data tracked through the wearable is relevant to the particular facts of the case, another initial hurdle to the submission of wearable data as evidence is authenticity; that is, you must establish that the data obtained through a particular wearable device can be linked to the plaintiff in question. Under La. C.E. art. 901:
the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
If a plaintiff’s wearable device information is disclosed and self-identified through the discovery process, the issue of authenticity should be satisfied. However, if the plaintiff denies that a particular wearable device account is his own, you might have to establish account ownership through indirect, circumstantial means, such as demonstrating a wearable device is linked to the plaintiff’s known e-mail account, or showing through the plaintiff’s social media activity that a wearable device account is attributable to him. Virtually every wearable device account can sync to a user’s social media profiles, such as Facebook, so athletic activities or fitness accomplishments can be shared with the user’s peers. To the extent the plaintiff uploads such information onto his known social media platform and holds it out to his peer network as his own, it would be difficult for him to then disclaim that information, after-the-fact, in litigation.
The next immediate question that will necessarily arise in the wearables-as-evidence debate will be the credibility, or accuracy, of the information collected by the device. Insofar as wearables act as a “black box” recorder for vital signs and exertion, assuming the user wears the device on a regular basis, the information contained could be illustrative as a baseline for the plaintiff’s physical ability or certain vital signs. A plaintiff may try to discredit the data stored by a wearable device if it is unfavorable to his allegations by arguing that the data recorded by the device is imperfect. However, the fact that this data is subject to variability and inconsistency should not render it inadmissible per se in a courtroom. While the data collection systems in these devices are imperfect, they are, in all probability, more accurate than the information a patient might self-report to a physician when his history is taken at the start of a physical examination.
Similarly, the memory and testimony of an eye witness is known to be fallible. By extension, there is no fundamental reason for which the “data driven” truth taken from a wearable device and its companion-tracking app database cannot be used in litigation to establish a plaintiff’s levels of daily activity. At the very least, it should be admitted so that it can be compared with other parties’ proffered evidence on an issue so that the factfinder can assess the witness’ credibility. La. C.E. art. 607(A) acknowledges that the “Credibility of a witness may be attacked by any party.” “A party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.”
To the extent that a patient’s testimony about the scope of his injuries or physical limitations arising out of a personal injury claim is contradicted by biological evidence derived from a wearable device account attributed to that plaintiff, it should be admissible to attack the credibility of his testimony as to the scope of his injury or disability. Louisiana law typically acknowledges that “extrinsic evidence to show a witness’ bias, interest, [or] corruption . . . is admissible to attack the credibility of the witness. Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attach the credibility of a witness . . .”
There is also the concern that the plaintiff might try to give himself an edge in litigation by using the wearable device to manufacture evidence of low levels of physical activity to corroborate the scope of his injury claims. This should not deter anyone from accepting wearable-derived data as a discovery venue, because there is always the concern that information produced for use in litigation might have been somehow manipulated by an interested party, inadvertently or otherwise. For example, a 2002 study in the Journal of Clinical and Experimental Neuropsychology examined 10,000 assessments of patients who had applied for compensation benefits, or who were involved in personal injury litigation. There, “researchers found that 29% of personal injury and 30% of disability claim cases involved probable malingering and symptom exaggeration,” and by contrast, “probable malingering was present in 8% of medical cases not related to litigation or compensation claims.”
Whether plaintiffs intend to exaggerate their injuries or not when presenting to a health care provider, or in the simple act of going through their daily activities, is an inevitable fact of litigation. Symptom exaggeration and malingering is always a consideration in any personal injury claim—the plaintiff has a financial gain at stake, and so, whether intentional or not, a plaintiff trying to prove his case to his health care provider might be inclined to demonstrate the existence of the injury however possible. A plaintiff might complain of difficultly ambulating after an orthopedic procedure; however, if a plaintiff’s Fitbit account indicates that he is running 15 miles a week, then it is likely that the plaintiff has exaggerated his complaints to the physician—or, at the very least, demonstrates that the plaintiff’s condition is not as bad as the plaintiff perceives it to be.
And so again, the wearable may be a useful tool to traverse the veracity of those injury claims. Where a plaintiff may exaggerate symptoms to a health care provider, the wearable is actually designed to increase and encourage the user’s physical activity, and so a plaintiff using a wearable is likely disinclined to continue malingering on a daily basis, if his sole purpose in using the wearable device is to track and encourage his own physical activity. To use the example of the injured runner above, though he may want to stress his ongoing injury to his health care provider, if it is in his nature to enjoy an active lifestyle, and he enjoys using his wearable device to monitor and record his progress, then he will undoubtedly have a hard time maintaining his “injured” persona all day, every day. Ideally, the wearable could be used to establish that point, providing attorneys with a new, powerful tool in assessing the scope of damages alleged in personal injury litigation.
 Pew Research Center Social Networking Fact Sheet, http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet, May 18, 2015.
 Pew Research Center Social Networking Fact Sheet, http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet, May 18, 2015.
 Many social media platforms and wearable device companies provide instructions on their websites for how a registered user’s activities can be downloaded and printed out through a personal computer.
 La. C.E. art 607(C).
 La. C.E. art. 607(D)(1)-(2).
 American Medical News “Detecting deception: How to handle a malingering patient” Amednews.com (Sept. 10, 2012), Web, May 18, 2015.