Mo Gadgets, Mo Problems...
You may have heard already that Fitbit Inc. and Google are joining forces. Under a deal between the two companies, information gathered by an individual's Fitbit device will be stored in Google's Cloud Platform and integrated with the individual's electronic medical records (EMR). In connecting to the EMR system used by doctors and hospitals, Fitbit hopes to allow healthcare professionals to provide more personalized care, with doctors being able to obtain data straight from a patient's Fitbit in the future. Some patients who may be better served by this data integration (particularly in light of Fitbit’s recent acquisition of Twine Health, a chronic disease management platform) are those suffering from diabetes and hypertension.
There is little information right now, however, on how this data will be stored or used. In a legal context, this may present issues in terms of authentication. Typically, in cases where a Plaintiff is claiming injuries, the attorneys for the Defendant will seek to gather information casting doubt on the extent and duration of the Plaintiff’s injuries. This is generally done by subpoenaing medical records pertaining to the parts of the body the Plaintiff has claimed to have been injured, and sometimes by hiring an investigator to conduct public surveillance of a Plaintiff (known as sub rosa surveillance). With subpoenaed records, a custodian of records for a healthcare provider is available to testify as to the authenticity of a patient’s records, and with sub rosa surveillance, the investigator who conducted the surveillance is able to testify that he or she conducted the surveillance, that the camera was functioning properly, etc. Who will be able to testify as to the authenticity of data gathered by a Fitbit, particularly with the lack of information of data storage as it is, and when frequently asked questions indicate that a Fitbit tracker may often freeze and be in need of a reset?
Furthermore, the 24-hour a day, all-encompassing data gathered by a Fitbit is both overbroad, and will be speculative at best, posing serious issues as to patient privacy. While members a jury may view sub rosa surveillance for themselves, the lack of any real means of evaluating the evidence from a Fitbit means that the information could be used to argue anything. Your Fitbit shows that you were stationary for a long period of time? Your back must be fine (even if it won’t reflect that you were standing or stretching during that time). Your Fitbit shows that you were walking? Your back must be fine (even if you were walking because it hurts to sit). Your Fitbit shows you were very active during a certain period of the day? Your back must be fine (maybe you were just playing a game on your Wii). You were sleeping just fine through the night? Your back must be fine (but your Fitbit won’t show if you had to take medication in order to sleep comfortably).
But this is a personal injury case, so doesn't the defendant have the right to be getting access to all of my health information anyway? No. Medical records are protected by the right to privacy, and discovery into information protected by the right to privacy cannot be justified by arguing that it may lead to relevant information. Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 566-567. Rather, the proponent of discovery into constitutionally protected material has the burden of making a threshold showing that the evidence sought is “directly relevant” to the claim or defense. Britt v. Superior Court (1978) 20 Cal.3d 844, 859-862. Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; instead the need for discovery must be carefully balanced against the fundamental right of privacy. Mendez, 206 Cal. App. 3d 557, 566-567. The scope of the disclosure of private information is narrowly circumscribed, and such an invasion of the right of privacy “must be drawn with narrow specificity” and is permitted only to the extent necessary for a fair resolution of the lawsuit. Moskowitz v. Superior Court (1982) 137 Cal. App. 3d 313, 315-316. While subpoenas for medical information can be narrowly tailored, it would be exceedingly difficult to narrowly tailor the information sought from a Fitbit such that the data sought is limited only to a plaintiff's specific injuries or claims related to a particular case. The information gathered by a Fitbit, which gathers all kinds of information on a person 24 hours a day, is overbroad on its face.
So, while the advancement and accessibility of technology and integration with the medical field gives new hope for the future of healthcare, until the scope of the discoverability of such information is properly defined in the legal field, users may want to proceed with caution.