DID FACEBOOK RUIN THIS PLAINTIFF’S CASE?

January 4, 2017

By: Robert N. Hunn, Esquire

Recently, Plaintiff attorneys have been perplexed over a report of a Superior Court Decision where the Court dismissed a woman’s medical malpractice case because it was filed more than two years from when she knew or should have known that she had been injured.  For you non-lawyers, this is called the statute of limitations that requires tort cases to be filed within two years of the date of the negligence or two years from the time a person could have known that someone’s negligence caused them injury.  What made the report of this case standout was the fact that the Court seemed to base its conclusion on a Facebook post the Plaintiff had written which effectively said I’ve been telling everyone for years that I had Lyme disease but everyone ignored me. Today’s test confirmed that I had Lyme disease. The report suggested that if she knew for years she had been misdiagnosed and had Lyme disease, she should have filed her lawsuit sooner.

For Plaintiff attorneys, the troubling aspect of this report is that if a patient with no medical background has a subjective belief that she has a condition when her physicians are telling her she has a different condition, how can she be expected to start litigation with absolutely no objective evidence supporting her belief?

For my colleagues who saw this report in the local legal newspaper, you can breathe a sigh of relief.  The Court did not base its opinion on a wayward Facebook post.

In the case of Nicolaou v. Martin M.D. et al. (PA Superior Ct 12/22/16), Plaintiff was bitten by a tick in 2001 and progressively developed symptoms that included incontinence, loss of bladder control numbness throughout her body and confinement to a wheelchair. Between 2001 and 2008, she saw a various physicians who ordered a number of Lyme disease tests which came back negative.  Her physicians settled on a diagnosis of Multiple Sclerosis.

In 2009, she decided to see a specialist in Lyme disease.  She began treating for Lyme disease and began improving.  In February of 2010, she was again tested for Lyme disease but this time by a laboratory that had the most comprehensive Lyme disease test in the country.  On February 13, 2013, she learned that the test came back positive for Lyme disease.  She immediately posted on Facebook:

Today I got my blood test back from igenix labs to test for Lyme disease and it came back positive!!!!!!! I had been telling everyone for years I thought it was Lyme and the doctors ignore me, thank you god you have answered my prayers!!!!!!!!  Now its all in your hands!!!!!!!!!

Plaintiff filed suit against the doctors who misdiagnosed and treated her for MS between 2001 and 2008 on February 10, 2012. The Defendants filed a Motion to Dismiss arguing that suit was filed more than two years after she had reason to believe she actually had Lyme disease.  Plaintiff argued that the two year statute of limitations didn’t run until she received the confirming test results on February 13, 2013.

The Court held that when she sought out treatment in 2009 from a Lyme disease specialist, who treated her for Lyme disease and her symptoms improved that is when she had reason to believe she had Lyme disease and the clock started to run.  The fact that it wasn’t confirmed until 2010 did not make a difference.

With respect to her Facebook post, the Court simply noted that it made her argument that she didn’t know she had Lyme disease until the February 2010 test less credible.

There was a dissenting Opinion to the Court’s finding. Once could argue that the Court was being way to harsh on the Plaintiff since she did have a number of negative Lyme Disease tests and she was justified in waiting until she had a positive test before filing suit.  However, the good news is that it was not her errant Facebook post that sunk her case.

This does not mean that Plaintiffs in a civil action do not have to be careful about what they post on Facebook.  It’s like the old saying goes, “Anything you say can and will be used against you.”