The Food and Drug Administration (FDA) approved implantation of computer chips in humans back in 2004. The first versions, the size of a grain of rice, were designed to store basic medical information about the patient. Though these are not commonly used, other wearable monitoring devices such as Fitbit have become extremely popular. Courtrooms may see increased use of electronic exercise monitors in evidence for personal injury cases. These monitoring devices are not implants, but they do hold a lot of information about a person’s activity, sleep patterns, and other biological data points. For individuals seeking to bolster their personal injury claims, Fitbit and similar smartwatches may provide corroboration of the extent of their injuries.
What is Fitbit?
Started in 2007, Fitbit is a California-based producer of wearable fitness computers. The tiny devices attach to wrist or belt and track your physical activity, heart rate, caloric intake, and daily steps.
Various models are available, including wireless devices and models to track your sleep and weight. If you have been using a Fitbit, you have a documented pattern of physical activity and other health information that an attorney can use to offer a complete picture of your lifestyle and medical condition before a personal injury.
Then and Now
A victim of a personal injury case had to rely on testimony and expert opinion about the extent of injuries, offered by medical authorities:
- doctors, such as orthopedists, radiologists, and neurologists
- physical and occupational therapists
If you followed an exercise regimen before suffering a personal injury, you may have your own documentation such as a runner’s diary, competitive awards, gym membership papers and canceled checks. You may have used a wearable computer, which collected volumes of data about your every move, every day.
This pool of data can serve to amplify doctors’ and therapists’ opinions about your state of health before and after a personal injury. After your injury, continued use of Fitbit can highlight your decreased mobility, speed, sleep, and other factors. Because it is worn for such extended periods, Fitbit is not easily fooled by conscious manipulation of pace, heart rate, sleep patterns, or caloric intake.
Physical therapists’ reports provide snapshots of intermittent progress. Doctor’s files similarly show only glimpses of a patient’s improving or deteriorating health. Fitbit, by offering hours of data day after day, can provide much richer data as evidence.
Fitbit has had its day in court, and will likely see more use in years to come. A case in Canada is using Fitbit data to support the plaintiff’s claims of reduced activity after an injury. The information from the plaintiff’s wearable computer is being analyzed by an outside company, Vivametrica, to compare to a national standard.
In this Canadian case, the plaintiff is seeking to support the case with this personal information. This may not always be the circumstance for future cases.
An insurance company, for example, upon learning that an insured uses a smartwatch, wearable fitness computer, or other device, could subpoena the data in efforts to counter insurance claims. Before providing some therapeutic services, too, an insurance company could require a patient to wear an information-gathering device for days or weeks to generate real-time data about a subscriber’s relative fitness.
Medical devices such as Holter monitors have been around for many years, providing doctors with useful data about patients’ heart activity in everyday life. Their data, however, is seldom used as legal evidence without accompanying expert testimony that interprets the information.
As technology improves, and the interface between human and machine becomes further blurred, expect wearable data devices to be used more frequently in court, both to support and refute claims.