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Google and FitBit Collaboration Could Affect Personal Injury Litigation

 

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.

 

Google and Fitbit Inc. announced on April 30 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 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 also is 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 plaintiffs 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,’”

Samuel E. Britt III is an associate at Weathington McGrew, where he defends physicians, nurses, and other health care professionals. He graduated from the University of Georgia School of Law in 2014 and worked at a civil defense firm in Augusta before joining Weathington McGrew.

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Operator of several SA senior-care centers files for bankruptcy

Senior Care Centers LLC, a skilled nursing and senior living provider with more than 100 facilities in Texas and Louisiana — including 10 in San Antonio — has filed for Chapter 11 bankruptcy protection. Company officials have attributed the financial challenges to “burdensome debt levels” and “expensive leases.”

For now, that decision is not expected to affect the operation of the Dallas-based company’s facilities. However, the ownership of roughly half of those centers is in flux. Senior Care Centers operates 10 facilities in San Antonio. It also operates centers in New Braunfels, Bandera and Fredericksburg, as well as other Texas cities.

Irvine, California-based Sabra Health Care REIT (Nasdaq: SBRA) owns 38 facilities operated by Senior Care Centers. On Dec. 6 Sabra issued Senior Care Centers notices of default and lease termination for not paying rent. Sabra also announced that it entered into an agreement with an undisclosed buyer to sell its 36 skilled nursing facilities and two senior housing communities operated by Senior Care Centers for $385 million. It was not immediately clear how many, if any, of those facilities are in San Antonio. Sabra indicated that it expects the deal to close by early 2019.

“We are pleased with the progress we have made on our planned disposition of the Senior Care Centers Facilities,” Sabra CEO Rick Matros said in a statement. “We do not expect Senior Care Centers’ bankruptcy filing to have a substantive impact on our disposition of the Senior Care Centers facilities.”

Meanwhile, Westlake Village, California-based LTC Properties, Inc. (NYSE: LTC), which leases 11 skilled nursing centers in Texas to Senior Care Centers, said on Dec. 5 it too had not yet received rent for the month. LTC has requested a consensual termination of the lease agreement with Senior Care Centers and is in discussion with another Texas operator to potentially take over the facilities under similar lease terms.

The Business Journal confirmed with LTC that those facilities are not in San Antonio.

Michael Beal, chief operating officer for Senior Care Centers, said the bankruptcy filing “allows us to address certain financial issues while continuing to provide the critical care and support on which our residents rely while we work to transition certain communities to new operators.”

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