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Another Warning That Your Social Media May Be Discovered and Used Against You in a Civil Lawsuit

By: Pamela A. Lee, Esquire

       [email protected]

If you think about it, social media is a treasure trove of information in litigation. What types of things do you post or comment on? Will it come back to haunt you in 2 or 4 or 6 years?

A plaintiff’s Facebook post – and a comment from the plaintiff’s Facebook friend – recently helped defendants in a medical malpractice lawsuit obtain a dismissal of the plaintiff/poster’s medical malpractice claim.

The plaintiff in Nicolaou v. Martin purportedly contracted Lyme disease from a tick in 2001 and was treated by various medical providers from 2001 through 2007. She alleged her medical providers misdiagnosed her Lyme disease as multiple sclerosis. The plaintiff was eventually diagnosed with Lyme disease by a different medical provider when she received a positive test result for Lyme disease on February 14, 2010.

Almost two years later – on February 10, 2012 – she sued her medical providers that allegedly misdiagnosed her. The defendants then filed for summary judgment asserting her claim was barred by the statute of limitations.

What’s the “statute of limitations”? Under Pennsylvania law, a patient generally has two years to file a lawsuit from the date of the alleged malpractice. However, if within those two years the injured patient – despite the exercise of reasonable diligence – could not ascertain that she had been injured and by what cause, then the time to file a lawsuit is put on hold, or “tolled.” Our courts call this exception to the general two-year rule the “discovery rule” exception.

At issue in Nicolaou v. Martin was whether the plaintiff was able, through the exercise of reasonable diligence, to know that she had been injured and by what cause (i.e., an alleged misdiagnosis). The trial court dismissed the plaintiff’s claims after finding that her lawsuit was filed too late.

On appeal to the Pennsylvania Superior Court sitting en banc, the plaintiff argued that she did not believe she had Lyme disease until it was confirmed and, therefore, the two-year limitations period did not begin to run until the date her test result came back positive – February 14, 2010 – permitting her up to two years from that date to file her lawsuit, or February 14, 2012.

Seemingly disturbed by the plaintiff’s argument that she did not believe she had Lyme disease until she learned of the positive test result, Judge Jacqueline O. Shogan – writing for the majority of the court – highlighted a Facebook post which the plaintiff had posted on the same day her test result had come back positive as evidence that the plaintiff knew, or should have known through reasonable diligence, that she had Lyme disease well before she received the positive test result.

The plaintiff had posted on Facebook, “I had been telling everyone for years I thought it was Lyme…” And a Facebook friend commented “You DID say you had Lyme so many times!” The court opined, “Mrs. Nicolaou’s Facebook post, indeed her own words, bear on the fallacy of her claim on appeal that ‘she did not believe it.'”

The dissent, written by Judge Ann E. Lazarus, asserted that the majority of the court improperly assumed the role of fact-finder and that the issue should be determined by a jury. Judge Lazarus opined that it is not disputed that the plaintiff suspected she had Lyme disease, but it is a jury question as to whether she was reasonably diligent in determining whether or not the suspected injury actually had been suffered.

While this case is important on the issue of Pennsylvania’s discovery rule exception, it is a valuable lesson to all of us that in today’s world, social media is indeed a treasure trove of information in litigation – another painful reminder that what you say on social media may be discovered and used against you in a civil lawsuit.

To read more about how social media can affect your legal rights, please read Pamela A. Lee, Esq.’s article Social Media in Litigation and Robert B. George, Esq.’s article regarding the Dangers of Snapchat.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Please contact Pamela A. Lee, Esquire at the Law Firm of DiOrio & Sereni, LLP at 610-565-5700 or email her at [email protected].

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