Pa. Case Shows How Social Media Can Undermine Med Mal Suits

Posted by Joseph Marano on September 5, 2017

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By Y. Peter Kang Law360,


Los Angeles (September 5, 2017, 11:55 AM EDT) — A woman’s Facebook posts are at the heart of a medical malpractice dispute to be heard by the Pennsylvania Supreme Court over when the woman knew she had Lyme disease, which experts say underscores how social media posts can come back to haunt personal injury plaintiffs.

The Keystone State’s highest court recently agreed to take up patient Nancy Nicolaou’s challenge of a Superior Court ruling tossing a suit accusing St. Luke’s University Hospital Network and others of failing to diagnose her Lyme disease and misdiagnosing her with multiple sclerosis. The lower appeals court found that the claims didn’t qualify for the “discovery rule” exception for medical malpractice cases, or when patients claim they didn’t discover their injuries until after the two-year limitations period, and were therefore untimely filed.

Over the course of eight years of treatment by the defendants ending in 2008, Nicolaou took four Lyme disease tests that came back negative. She purportedly was not able to afford a more sensitive diagnostic test through a private testing company but in 2010 finally took that test, which confirmed she had the disease. The same day, she rejoiced on Facebook and said she had been telling everyone for years that she thought she had Lyme disease.

In the en banc Superior Court’s 6-3 ruling, the majority found that the Facebook post undermined Nicolaou’s claim that she didn’t truly believe she had the disease until the positive test and that the running clock on her claims should not begin until that date, as opposed to 2008, the last time she was treated by the defendants.

“Mrs. Nicolaou’s Facebook post, indeed her own words, bear on the fallacy of her claim on appeal that ‘she didn’t believe it,’” the appeals court said.

While other aspects of the case will be weighed by the high court in determining the date the patient discovered the injury, the fact that the Facebook post contributed to the court’s decision is a reminder that a person’s social media history can serve as ammunition for the defense, according to medical malpractice attorneys polled by Law360.

Probing a plaintiff’s social media history has become page one of the medical malpractice defense attorney’s playbook, according to Stark & Stark’s Jeffrey Krawitz, a medical malpractice and personal injury plaintiff’s attorney based in Yardley, Pennsylvania.

“I think it’s automatic. Once [the defense] gets a claim, they have the paralegals comb through the social media posts,” Krawitz said. “I’ve been at a ton of depositions where the defendant’s attorneys have printed portions of my client’s Facebook or other social media pages. Certainly, the thought is that there is lots of fodder in social media posts that can be contradictory of injuries and limitations claims.”

Joseph Marano of Freiwald Law in Philadelphia said social media is brought up in 80 to 90 percent of the cases he handles.

“At almost every plaintiff deposition the defense attorneys are pulling out Facebook posts of various
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things the plaintiff said or pictures to make it look like they are not injured or that their injuries are not what they say they are,” the plaintiff’s attorney said. “If it’s a public Facebook page, Twitter or whatever, courts have ruled that this is fair game.”

Marano said a colleague once had a case where a woman alleging back injuries was confronted at her deposition with a picture she posted on social media, taken after the alleged injury, of her riding a mechanical bull, complete with a caption stating, “Whoo hoo!”

“Those are the kinds of things that can happen,” he said.

While Krawitz and Marano estimate that social media has played a role in their cases starting about five years ago, one medical malpractice defense attorney said that probing plaintiff’s social media has been part of his litigation strategy for at least the past seven years, although its importance has increased in recent years.

“It has accelerated so much and produced so much good information you would be in error if you didn’t pursue that,” said Dean Murtagh, founding member of German Gallagher & Murtagh PC in Philadelphia. “It would be a poor decision on the part of counsel if they didn’t at least look at that.”

However, Murtagh noted that probing social media is akin to techniques employed back in the “good ol’ days” of when defense attorneys would hire a private investigator to monitor a personal injury plaintiff.

“It is really no different than the old method of getting surveillance films on a plaintiff and watching him change a tire despite an alleged bad back,” he said. “This is the 21st century equivalent.”

But advising clients to stay off social media can be a tricky matter, as unsophisticated clients will sometimes not realize that seemingly innocuous things posted online can cause real damage to their case. Strassburger McKenna Gutnick & Gefsky’s Matthew Marquette said he advises his clients to be careful about posting on Facebook or elsewhere and they are usually amenable to such requests, at least at first.

“I don’t get so much pushback in the initial meeting but I do see they have trouble taking my advice,” he said. “Sometimes I go back and see that they’ve continued to post on Facebook and put on the best face of their life. That’s not always advantageous in a plaintiff’s case. Defense counsel is capitalizing on this open book into people’s lives, which gets to a fundamental question in social media; people put on their best face in social media.”

But this “best face” people tend to put forth on social media often belies their true physical condition, said Marquette, so it’s hard to gauge how much such evidence should be worth.

“Nobody writes ‘my foot really hurts today.’ Nobody shows a photo of themselves lying on the couch watching daytime TV,” he said. “You put on Facebook how shiny and glamorous your life is, which is great fodder for defense counsel in a plaintiff’s case.”

The attorney predicts the Pennsylvania high court will reverse the lower appeals court’s ruling and revive Nicolaou’s suit.

“I think the high court wants to look at how much weight we are going to give to the things people write on Facebook about their conditions,” he said. “Somebody writing down that they had a gut feeling that something is wrong is way different then a doctor telling a patient that something is wrong, you should look into this. I think the court will limit how reasonable a gut feeling is in keeping the clock running on the statute of limitations.”

Marano said defense attorneys, juries and even judges can sometimes place too much emphasis on social media evidence. He said he had a case in which a woman suing for a foot injury later posted online a picture of her standing on a cobblestone street in Italy wearing high heels. While the defense challenged the severity of injury citing the picture as evidence, the reality is that the woman simply wanted to take a flattering picture of herself and took the heels off after the photo was taken.

“But the defense tries have this ‘aha’ Perry Mason moment when they get these social media
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accounts,” he said. “It’s the juxtaposition of people thinking you are getting a real version of them but really you are just getting the highlights.”

While Marano said he believes Nicolaou’s case will be revived due to her assertion that she couldn’t afford to take the diagnostic test, he said the social media aspects of the case serve as a warning to medical malpractice plaintiffs to watch what they say online.

“People just feel the need to get things of their chest and out to the world and it ends up being to their detriment,” he said. “It’s like in the movies, ‘Anything you say can and will be used against you,’ and this is exactly what happened.”

–Editing by Rebecca Flanagan and Emily Kokoll.

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