December 5, 2017

Insurance predictions 2018: Wearable tech leads to litigation

Wearable technology will significantly impact personal injury litigation

Fitness trackers and smart watches provide a new avenue for discovery of damages in litigation, and we’ve only just begun to see the possibilities for its use in the courtroom. 

Collecting personal health data from wearable technology is increasingly simple as employers and health insurers are implementing incentive programs for employees and customers to use fitness trackers.  To enjoy the incentives, users must submit their fitness data to employers/health insurers.

Litigators can request fitness tracking data directly from a claimant or their health insurer by subpoena via written authorization from the claimant that should effectively eliminate any burdensome or privacy objections.  The use of this data can support a claimant’s case or completely undermine their claims by showing that their injuries are not as serious as claimed and maybe even prove fraud.

For example, in Canada, two court opinions reference Fitbit data to support the conclusion that the petitioners were entitled to disability benefits. Fitbits use a combination of a heart rate monitor and motion detectors to identify and measure different sleep stages. In both cases, Fitbit data was used to support claims of insomnia.

Wearable technology incentive programs are still in their infancy, so it will take time to see major dividends from these requests. However, with the growing number of programs and growing use of wearable technology in general, litigators will take advantage of this very telling data.

In the 1980s, the savings and loan (S&L) crisis saw more than 1,000 S & L's  and banks collapse and numerous suits followed. Decades later, we have stronger regulation and oversight, but we are still seeing about five to seven bank failures per year. And when they fail, it is the FDIC that picks up the pieces and the bank’s auditors are often in the hot seat (along with the directors and officers) facing lawsuits and accusations of negligence.

You can read the rest of our insurance predictions here.