Medicolegal Cases in the Digital Age
Until recently, evidence in medicolegal cases was collected from physical sources, such as patients’ medical histories, witness statements and expert witnesses. Technological advances mean that other sources of evidence, including social media, CCTV monitoring and GPS tracking, are now available. Many personal injury cases involve insurance companies, who are likely to use these methods of gathering evidence in cases where the amount of compensation claimed is high, in an effort to either reduce the amount claimed, or to disprove the claim entirely. Digital evidence is used in many types of cases, including motor vehicle accidents, workers’ compensation claims and slips and falls (1). The ease with which this type of information can be accessed and shared presents new challenges.
Most medicolegal cases hinge on whether the claimant’s condition is believable. In an effort to make their story more convincing, some claimants may be tempted to exaggerate the symptoms they are experiencing and the restrictions that these cause to their daily life (2,3). The motivation for this spans an entire range from a genuine attempt to convince a third party that their condition is real up to deliberate deception. Thus, symptoms may be slightly embellished or completely fabricated. Most patients lie at the bottom end of this range, but digital evidence can be key in identifying the few claimants who are deliberately aiming to deceive. Identifying inconsistencies in the patient’s story compared with the available evidence, from whatever source, is vital (2).
While surveillance evidence is often used in medicolegal cases to challenge a claimant’s story, it can be of limited use. In most cases, surveillance footage reveals a fairly typically sedentary lifestyle and does not show the claimant involved in more strenuous activities. Social media is often more revealing, as users often try to show themselves in as good a light as possible to their digital contacts. Thus, detailed study of a claimant’s social media activity may be a more cost-effective option than video surveillance (2) when defending a claim.
The rise in social media has allowed people to connect with others and communicate far more easily than was previously possible. In fact, some people now seem to live their entire lives online. However, this ability to send, receive and store information online can impact on a case in a similar way to more traditional forms of evidence. Claimants may be aware that images or videos posted online may be used to prove or disprove a case, but many do not realise that conversations or comments may also be used to build a picture of the claimant’s life and activities. Thus, a casual comment made to a friend seemingly interpreted as admitting responsibility, even indirectly, for an accident could prove disastrous to a claim (4) from the claimant’s perspective and very helpful to the defence.
Posts made on social media are often subject to privacy settings, so that they are only displayed to the user’s circle of verified contacts or ‘friends’. In reality, though, users cannot totally control the sharing of their information and may unwittingly be giving away very personal information. Furthermore, even if certain types of information, such as medical records or photographs, are protected by privacy settings, these can be overruled if the necessity for their disclosure can be proven.
However, it is important to realise that digital evidence alone often does not tell the whole story. Footage from CCTV cameras is likely to have been edited before presentation in court, to show the claimant in the best or worst possible light (5) depending who is presenting the information. In extreme cases, it may even have been deliberately manipulated, albeit this seems to be rare. If this is suspected, reference to the original memory cards on which the footage was recorded could prove invaluable, but may not always be available. This can cast doubt on the reliability of the evidence and the weight that should be placed upon it, but does not necessarily render it inadmissible.
An expert witness may need to examine the case beyond its apparent face value, requiring detailed examination of video footage in its unedited entirety, and give an opinion of how a claimant’s condition will actually affect them on a day-to-day basis. Some pain conditions fluctuate over time and it is possible that footage obtained on a ‘good’ day may not be indicative of how the claimant’s activities are limited on a ‘bad’ day (5). Thus, it may be possible to challenge social media or surveillance evidence presented by the other legal team in a case, in order to support the claimant or defendant. However, where the expert witness believes that a claimant is consciously exaggerating their condition, the inconsistencies and any associated medical opinion should be pointed out to the court to enable them to draw their own conclusions (2).
The use of digital evidence raises some further issues. Due to its recent development, it may be unclear exactly where digital evidence fits into the classification of evidence. The UK legal system recognises two types of evidence: direct and indirect. Direct evidence encompasses the existence of physical objects, while indirect evidence is derived from facts that can be inferred from the direct evidence. Lawyers also refer to ‘real evidence’, which is defined as material evidence produced without human intervention. Digital evidence can be argued to fall within each of these categories, depending on the context. However, UK judges will usually admit a range of different types of evidence and it is up to the parties involved to argue the weight that should be attached to any particular source (6).
When evidence is presented from publicly available websites, such as social media sites, it is unclear how the authenticity of this material should be established. Currently in the UK, there are no requirements to collect digital evidence in a specific way. Technical guidelines describing how digital evidence should be collected to maintain its integrity relate only to criminal cases. Despite this, there is a presumption that digital evidence is generally reliable, although this view is somewhat controversial. It is up to the court to evaluate the evidence, while taking into account any technical considerations that are also made available (6).
Finally, the storage of digital evidence presents some problems, as it needs to be treated differently to paper files and physical evidence. When an electronic document is printed, the metadata proving its authenticity is lost. Thus, this evidence needs to be stored in its original form but this presents issues of confidentiality. Furthermore, secure back-up copies are needed, in case one means of storage fails. The evidence needs to be kept until court proceedings have concluded and the chance of an appeal has passed. Previously in the UK, solicitors were responsible for the storage of client files, and these would be returned to them by the barrister at the end of the case. The procedure is more complicated with digital evidence, as the barrister will have electronic copies of the evidence. This will either need to be completely removed from all computers and servers, or, as is more likely, both solicitors and barristers will need to ensure secure archiving of digital files (6).
With the advent of COVID-19, it is more likely that courts will become more confident at relying on digital evidence going forward. Evidence can be gathered and relayed to the court while minimising the need for witnesses to attend in person, thus reducing health risks and increasing flexibility. However, guidelines on the use and storage of digital evidence are needed to ensure that an individual’s privacy is protected and not compromised. Whether it is video surveillance footage or posts on social media, the advent of digitally stored material has opened new challenges in medicolegal cases. Claimants, and their friends and family, need to be fully aware of the possibility that relevant content could be used to compromise or disprove their case (4) and the importance of how content may be perceived by a third party. Thus, they should be warned to be careful about what is posted online, as it may not be as private as they think. In some cases, it may be wise to completely abstain from social media sites for the duration of legal proceedings.
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- How Video Surveillance Is Used in Personal Injury Cases – HG.org [Internet]. [cited 2021 Jan 26]. Available from: https://www.hg.org/legal-articles/how-video-surveillance-is-used-in-personal-injury-cases-38998
- Medicolegal Partners. Defence strategy in chronic pain cases [Video file] [Internet]. YouTube. 2021 [cited 2021 Jan 25]. Available from: https://www.youtube.com/watch?v=uqEKHNNN2iU&feature=youtu.be
- Dealing with fraudulent claims for compensation | News | NHS Counter Fraud Authority [Internet]. [cited 2021 Jan 26]. Available from: https://cfa.nhs.uk/about-nhscfa/latest-news/dealing-with-fraudulent-claims-for-compensation
- Social Media Posts Can Sink Your Personal Injury Case – HG.org [Internet]. [cited 2021 Jan 26]. Available from: https://www.hg.org/legal-articles/social-media-posts-can-sink-your-personal-injury-case-41612
- PI Brief Update – Top Five Tips for… Video Surveillance – Sarah Venn, Hardwick [Internet]. [cited 2021 Jan 26]. Available from: https://www.pibriefupdate.com/content/pibulj-sec/2729-top-five-tips-for-video-surveillance-sarah-venn-hardwick
- Mason S. The use of electronic evidence in civil and administrative law proceedings and its effect on the rules of evidence and modes of proof. Strasbourg; 2016.
Watch an excerpt from Dr Jenner’s webinar, discussing the “continuum of exaggeration” and his experience of digital surveillance evidence in pain-related medicolegal cases: