A social media post can help you share your thoughts or experiences with other users. This can include posting a photo of yourself or your friends having a good time, or sharing updates about your family. However, posting information on social media can come back to haunt you in a medical malpractice case. Your public posts, and sometimes private posts, can be used against you to hurt your case. Before you post, talk to your experienced medical malpractice team for advice.
Beware of Posting on Social Media After a Medical Injury
There are many types of social media posts that people regularly use without thinking of any long-term consequences. However, a social media account can provide a lot of information about the person involved, whether they want to share the information with the public or not. Some of the most common social media companies include:
Depending on the type of platform, postings can include words, photos, and videos. Even if you are not posting to your own social media account, your friends, family members, or co-workers could post information about your life that you may want to keep private.
For example, if you call out sick for work but went to a concert with a friend, your friend might later tag you in a post, showing that you were not at work, or even showing you in a compromised situation. That could end with disciplinary measures or even getting fired.
For a medical malpractice case, social media posts can be even more serious. Social media photos or videos that show your injuries were caused by something else or that your injuries weren’t as severe as you claimed could result in losing your case. This information could cost you hundreds of thousands of dollars, leaving you injured or disabled and having to pay expensive medical bills.
Before you post any social media information after a medical injury, talk to your experienced medical malpractice lawyer who can help you avoid a costly mistake.
Discovery in a Medical Malpractice Case
Discovery is a part of litigation where the parties involved exchange information including documents and records, interrogatories, and depositions. Interrogatories are questions that the parties have to respond to in writing. Depositions are pre-trial testimony where the witness is put under oath and the attorneys ask the witness a number of questions.
Exchange of information can include all relevant information, which may include medical records, medical bills, X-rays, prescriptions, lab reports, and descriptions of the injury or illness. Information in a medical malpractice case can also include electronically stored information, which could include emails or social media posts.
As part of the initial disclosures, certain information has to be disclosed regardless of a request for discovery, including:
- The name and contact information of any person likely to have discoverable information and subjects of information that could be used in supporting claims or defenses.
- Copies of documents or locations where documents or electronic information may be found that a party may use in proving a claim or supporting a defense.
- A list of quantified damages claimed unless the information is privileged or shielded from disclosure. In a personal injury action, this would include the type of injuries incurred and the severity.
- Any related insurance documents if an insurer may potentially be liable for paying a judgment or award.
However, there are proceedings that are exempt from initial disclosure. The parties may then exchange requests for the production of information. For example, a request for production could include all postings on social media websites from the date of the accident that are related to any physical activities or physical capability.
When there is a dispute about whether the information is discoverable or protected, the requesting party may file a motion to compel production. The judge will generally decide the motion, to either grant the motion requiring production of the information, deny the motion to keep the information out of discovery, or narrow the scope of the information requested to limit what has to be turned over.
Some examples of information that is generally protected and not required to be shared in discovery include attorney-client privilege for confidential attorney-client communications, and work-product protection for material prepared in anticipation of litigation or trial. Talk to your medical malpractice lawyer for more information about admissibility of social media posts in court.
Interrogatory Questions About Social Media
Interrogatories and questions about social media are commonly part of standard discovery. A common interrogatory may include something about identifying any and all social media used since the date of the injury, including identifying account or usernames and the time period use of the social media account.
Deposition Questions About Social Media
Deposition questions in a personal injury or medical malpractice case often involve questions about social media. The attorney may ask about your social media uses, how often you post things, what types of things you post, and what social media accounts you use. The questions may further focus on posting about physical activities, physical capability, and any posts about your medical care and injuries.
Social Media Posts Can Be Relevant to the Case
Under the Federal Rules of Evidence, Rule 401, “Evidence is relevant if:
- it has any tendency to make a fact more or less probable than it would be without the evidence; and
- the fact is of consequence in determining the action.”
Under the Federal Rules of Civil Procedure, Rule 26, “ Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”
Discovery can include documents, tangible things, and electronically stored information, like emails, text messages, or social media posts.
Posts About Other Causes of the Injury
Posts about other causes of your injuries could hurt your case. If you are claiming that you suffered injuries caused by a doctor’s negligence, the insurance company could look for any other causes of the injury that were not related to the doctor’s actions. For example, if you posted to your social media account before getting medical care that you had severe back pain and now claim the doctor’s actions were the cause of the back pain, it may hurt your case to show there were complaints of the same type of pain before any medical treatment.
Other posts can show there was some contributory negligence on the part of the injury victim. Contributory negligence means that the injury victim shared some responsibility for causing the injury. For example, if a patient disregarded the doctor’s instructions, which made the injury worse, a jury could find the patient was partly responsible for causing the injuries. In some cases, contributory negligence can act as a bar to recovering damages or limit the damages available.
For posts about other causes of the injury, be cautious about making social media posts or comments about:
- Physical injuries
- Discussing medication
- Complaining about medical treatment
- Showing contradictory information
- Presenting information that is contrary to medical instructions or advice
For example, a patient is filing a lawsuit for a doctor failing to properly treat a back injury, causing permanent disabilities. The doctor advised the patient to rest, avoid physical activity, and avoid alcohol while taking the medication. However, social media posts show the patient out riding dirt bikes, playing hockey, and drinking alcohol during the time period the doctor advised rest. These posts could be used as evidence to show the patient was partly responsible for causing their injuries.
Posts About Physical Activity
Any social media posts that could show your physical activity or physical capabilities after an injury could also be relevant. Posts of physical activities, going on vacation, sports, or even hobbies like gardening could be used to counter your claims of pain and disability. For example, if you were seeking damages for a permanent leg injury that limited your ability to exercise or participate in normal activities, it may look bad to show you at a 5k race, going skiing, or riding a bike on vacation.
Can the Insurance Company See Private Posts?
If you think that you don’t have anything to worry about because your profile is private or you only sent the pictures to a few friends, you may be surprised to hear that some private posts are still discoverable. During discovery in a medical malpractice case, the other side (represented by the doctors, hospitals, and insurance companies) wants all relevant evidence.
As part of discovery, the defense team can ask for access to social media accounts or copies of their social media postings. If a judge believes the social media account information is relevant to the case and not otherwise protected, the judge can order the injury victim to give the defense lawyers access to their social media information.
For example, if a medical patient is suing their doctor for a surgical error that caused a permanent injury, the defense lawyers would look for any evidence that contradicts or weakens the patient’s claims. If the injury victim said they were an avid runner before the accident and were no longer able to exercise, the defense attorneys may ask about the victim’s social media presence. Social media posts could show that the injury victim was still participating in running races after the medical injury.
Are There Limits on Discovery of Social Media Accounts?
There may be some limits on the discovery of private social media. In general, information that is not relevant or not reasonably likely to produce relevant evidence may not be available. For a medical malpractice case, relevant evidence often involves the claim for damages and causation of the injury.
For example, evidence that shows the patient’s injuries do not appear to be as serious as the claim would be relevant. Likewise, evidence of injury before the claim of negligent medical care could be relevant to show the patient’s injuries were not caused by the medical treatment.
In some cases, a judge may decide what social media information is relevant to the case. A judge could limit the types of social media posts available. The judge could also limit production to social media posts that occurred after the date of the injury.
A judge could deny a discovery request that is overly broad. In many situations, the defense attorneys would first review the injury victim’s public posts for any evidence that is relevant to the victim’s injuries or physical capabilities. Then a discovery request could more specifically address relevant subject matter and the relevant time period. If the judge grants the request, the injury victim may be required to turn over any relevant information, even if they were private posts.
Can I Just Delete My Social Media Posts That Look Bad?
Before you decide to just delete your old posts, deleting information can end up looking worse. Destruction of evidence is known as spoliation. This can include deleting social media posts that may support the defense’s side of the case. The courts can take spoliation and destruction of evidence very seriously. The judge could take an adverse position on the deleted information and infer that the lost information would have been adverse to the plaintiff’s case.
For example, in a jury trial, the judge could give an adverse inference instruction to the jury that could make the jury change their mind about the case, which could lead to losing your malpractice case.
The judge could also impose sanctions. In some cases, the appearance of deleting the information could be more harmful than if the information were provided. Make sure you talk to your attorney before you post information or delete posts from any of your social media accounts.
What Posts Are Okay After an Injury Caused by a Medical Error?
The safer approach to social media after a personal injury or medical error is to err on the side of caution and not post information if you are not sure if it is completely safe. You may miss out on some likes but the wrong posts can seriously harm your case. In many cases, after your initial consultation with your medical malpractice lawyer, they will advise caution regarding any social media posts.
Contact experienced trial attorneys who have successfully represented medical error victims and their families to recover financial compensation. For a free consultation, contact Gilman & Bedigian online or at 800-529-6162.