Nancy Nicolaou brought a suit against St. Luke's University Hospital Network for a failure to diagnose her Lyme disease. Nicolaou had taken four tests for the disease at St. Luke's which all were negative up until 2008. However, in 2010 she took another Lyme disease test through another provider which showed she did have the disease.
The trial court found that her claim was not eligible for the “discovery rule” exception that extends the two-year statute of limitations to allow her to still seek recovery in a malpractice claim because the problem was not discovered until later. On her Facebook page, Nicolauo posted that she thought she had the disease for many years.
Attorneys defending clients in Pennsylvania medical negligence cases have increasing been reviewing information from plaintiff social media accounts that can potentially assist them in their cases. The prior court found that some of Nicolaou's Facebook postings ran contrary to her claim. Some of the information expressed “in her own words” raised considerable doubt. The Pennsylvania Supreme Court has agreed to consider this medical malpractice case, which demonstrates an example of social media evidence being used against the plaintiff.
According to some attorneys, social media usage in malpractice actions is now considered in a majority of their cases. During depositions, defense lawyers are routinely using Facebook data and photos to challenge plaintiff injury claims. The consideration of information, photographs, and statements on social media has really accelerated in the last couple of years.
Present day usage of social media evidence can be compared to when defense counsel employs private investigators to uncover information beneficial to their case. An example may include where a plaintiff brought a claim of a devastating back injury; however, surveillance footage showed him bent over changing a flat car tire. Attorneys now often advise their clients to be conscious of what they are posting, because information can potentially come back to hurt their case.
Plaintiff attorneys predict that the Supreme Court will reverse the appellate ruling and order the case to continue. They think the high court will see that her posting where she claims to have a “gut feeling” that she may have the disease is not the same as receiving an actual diagnosis from a doctor. Nicolauo asserts that she could not afford the more expensive test from the private company that ultimately detected the disease. This case serves as a reminder (warning) to malpractice plaintiffs that social media posts can really be damaging in the courtroom.