Social Media in Your Medical Malpractice Case in NJ

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What to Know about Discoverability, Use, and Best Practices with Social Media if You Intend to File a Claim for Medical Negligence in New Jersey

Can I Post on Social Media during a Med Mal Lawsuit in NJ?

In the Internet age of social media, people find connection through disclosing their private lives to others. In fact, social media exists to nourish those connections. Those who use social media to maintain family contacts all over the globe or meet people they would not otherwise feel less isolated. Still, there is a steep cost for medical malpractice claimants. While people injured by healthcare professionals want to enjoy the benefits of technological advances, such as quick and easy communication, there is a risk. Patients who become plaintiffs in medical negligence cases may expose themselves to trouble on social media. Therefore, medical malpractice attorneys must advise clients about social media risks and discovery rules that stand to ruin or undermine injury claims against negligent doctors, hospitals, and other providers in New Jersey.

Fronzuto Law Group can help you understand and protect yourself on social media from the moment we become involved in your medical malpractice case. With decades of experience dedicated exclusively to New Jersey medical malpractice litigation, our lawyers know this area inside and out. To receive immediate assistance from an attorney at our firm and discuss your case free of charge, contact (973)-435-4551.

Can Social Media be Used Against Me in a Medical Malpractice Case?

Most people think nothing of posting their daily activities on Facebook, Instagram, Snapchat, Twitter, or other popular social media platforms. Social media users share, without a second thought, from the contents of their lunch to their vacation in Hawaii. And yet, plaintiffs pursuing a medical malpractice lawsuit need to think twice before posting or risk invalidating their case by posting evidence that contradicts their claims. For example, the plaintiff who claims they suffer debilitating migraines and loss of life enjoyment after a doctor injured them, may feed a defense attorney strong evidence to discredit the claim. Perhaps they undermine their claim when they discuss their symptoms online with “friends” or post a smiling, water skiing selfie from a vacation trip. A solid medical malpractice lawyer should advise a client that defendants can use social media pictures and statements against them in court. 

Discoverability of Social Media Posts for Medical Injury Lawsuits

Worse yet, a picture on Facebook that suggests the plaintiff is lying may give a defense attorney ammunition to seek the plaintiff’s entire social media account or accounts to find more contradictions. Since court discovery rules are long-established and social media is relatively new, the courts in New Jersey grapple with balancing plaintiffs’ claims of privacy violations and overreaching discovery requests, against defendants’ rights to discovery and the broad discovery rules. Judges who resolve discovery disputes generally interpret discovery rules to favor the open exchange of information for the vast majority of unprotected information. 

Are there Limits on Use of a Social Media Evidence for Medical Malpractice Litigation?

Defendants do not have complete free reign to review social media accounts as a matter of course. There are limits. Thus, judges who order plaintiffs in discovery disputes to turn over their social media accounts typically rely on prior case law and evaluations on a case by case basis. Parties looking for discrediting evidence should present grounds for a reasonable belief that such evidence exists. Otherwise, defendants can scour an individual’s photos, statements, letters, and information on social media, looking for damaging evidence. Anyone searching long and wide enough can probably find something incriminating in social media posts. However, courts have long disallowed fishing expeditions.

Thus, New Jersey courts ruling on discovery motions decide privacy objections on a case-by-case basis. New Jersey discovery Rule 4:10-2 broadly allows the discovery of anything relevant to the case that is not privileged. The New Jersey Rules of Evidence defines relevance as anything that tends to prove or disprove consequential facts that affect a case’s outcome. However, Rule 4:10‐2(g) allows judges to limit discovery requests that are “unreasonably cumulative or duplicative.” Thus, a judge will enforce a tailored request that seeks information that is not privileged. 

While New Jersey continues to grapple with questions as to the discoverable limits of social media accounts, neighboring states lend some guidance, as do federal case decisions. In the weighing process, privacy rights vs. open discovery, New York and Pennsylvania lean toward discovery when the objecting party has revealed compromising posts. As such, a plaintiff posting incriminating pictures may not convince a judge that privacy concerns prevent the discovery of their social media posts. And yet, social media accounts are vast and may include private information irrelevant to a malpractice action. Misguided or not, most people believe their accounts are personal when they choose privacy settings.

Is my Social Media Account Private in a Medical Malpractice Action?  

Despite common belief, complete privacy is not necessarily a privilege. Pennsylvania casesMcMillan Hummingbird Speedway and Largent vs. Reedput that question to rest when the court rejected the plaintiff’s argument claiming Facebook’s privacy settings made account information confidential. Once a court determines that no privilege exists, then relevancy is the next question. State courts near New Jersey established the relevancy test that renders a social media private account discoverable if it contains incriminating evidence regarding a lawsuit claim or defense.

Federal courts have aligned with Pennsylvania and New York courts on the relevance issue: a person’s social media accounts should reveal some evidence of relevant material for plaintiffs or defendants in a lawsuit to access it fully. A party requesting access to a social networking account needs to state with “reasonable particularity” what the requesting party seeks and how it is relevant. That way, litigants cannot comb a person’s private account for something incriminating. 

How to Avoid Jeopardizing Your Medical Negligence Claim with Social Media Posting  

The question remains what attorneys and clients can do to avoid jeopardizing their claims. Anticipating discovery requests for social media data, attorneys may advise clients to deactivate their social media accounts pending medical malpractice lawsuits so they do not post damaging evidence unwittingly. That may be helpful, but a plaintiff may not permanently delete their social media accounts after the opposing party discovers a post contradictory to their claims. A judge may not look kindly on attempts at destroying or concealing evidence. Moreover, privacy settings may not convince a court that social media posts are private and protected. A judge can still order a party to turn over social media files to the opposing party, despite privacy settings. 

At a very basic level, avoiding posting on social media and carefully considering anything you do post is a good rule to follow. You don’t want to unsuspectingly jeopardize your potential medical malpractice settlement or jury award by showing a photo or making a simple statement that could come back to haunt you in court. Since pre-trial discovery leads to evidentiary proof at trial, a knowledgeable medical malpractice lawyer can be careful when making discovery requests and preparing clients about social media behavior and consequences. New Jersey courts allow social media evidence as proof of a fact or element without authentication, meaning without satisfying a threshold proof of its genuineness. And yet, social media accounts get hijacked, duplicated, and falsified by Internet wrongdoers routinely. As such, it is important to have a savvy medical malpractice attorney who is up on the latest technology, social media, discovery rules, and related concerns.

Talk to an Attorney about Social Media Concern if You Have been Injured by Medical Errors in NJ

If you have a possible medical malpractice claim in New Jersey, contact Fronzuto Law Group to speak with an attorney about social media discovery in your case. Our experienced lawyers can assist you with the entirety of the legal process, including how to preserve your best interests with your posting activity, protecting and advising you every step of the way. Call (973)-435-4551 or send us a request for a free consultation.

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