(Or as Bob Dylan would say, the times they are a-changin’. )
Written by: Samuel E. Britt, III, The Weathington Firm, P.C.
Google and Fitbit, Inc. announced on April 30, 2018 that they are teaming up to leverage the widespread use of wearable technology to improve the quality of health care. According to the official press release, the deal provides Fitbit with access to Google’s Cloud Healthcare API which will connect user data with a patient’s electronic medical records (EMR) in real-time. Information regarding the patient’s movement, heart rate, sleep patterns, etc. will be stored in the Google Cloud Platform and integrated with a patient’s EMR. The hope is that arming clinicians with this objective information will lead to more personalized care, and, ultimately, better health outcomes.
The details on how this information will be stored, accessed, and used are scant at this point. It is also unclear which EMR software systems will have access to this information, and how soon it will become available to clinicians. However, once fully implemented, the agreement between Google and Fitbit could open doors in litigation that previously did not exist.
The most obvious implication is on a personal injury plaintiff’s claimed damages. Often, the plaintiff in a bodily injury case (especially automobile, slip and fall, and trucking cases) claims that the injuries sustained have impaired the plaintiff’s ability to walk, stand, and/or sleep. Disproving or undermining these claims is often difficult and very expensive. Typically, one would have to hire a private investigator to surveil the plaintiff clandestinely to show that the plaintiff can walk and/or stand without perceived difficulty. As any defense attorney can attest, surveillance efforts are often hit or miss, and frequently return nothing valuable to the case. Further, surveillance has no way of showing how well a plaintiff is able to sleep.
While each plaintiff’s attorney wants to believe that a potential client is being completely honest about his or her pain and limitations, the decision to take on a case often comes with a significant economic investment. Assurances beyond simply the plaintiff’s word that the injury has been truly life-altering makes the decision to take a case much easier. Those assurances for plaintiff’s attorneys are often just as difficult to obtain.
Conceivably, the deal between Google and Fitbit could provide defense attorneys with access to information about a patient’s movement and sleep patterns that could show that the injury claims are, at the very least, overstated. This information could prove just as valuable (and cheaper) than surveillance. On the other hand, the information could corroborate a patient’s complaints and bolster the plaintiff’s claim for damages. Consequently, both sides of the personal injury bar may want access to this information.
The introduction of wearable technology has already changed how people view and monitor their activity levels and habits. The deal between Google and Fitbit has the potential to alter how plaintiff and defense attorneys evaluate and litigate personal injury cases. While no one expects Google to simply hand over this information without a fight, the right judge in the right case could find that a request for a patient’s Fitbit information is “reasonably calculated to lead to the discovery of admissible evidence” and order that the information be produced. Since we now know that the information is being stored, obtaining access is only a subpoena or court order away.
As Bob Dylan would say, the times they are a-changin’.
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