Supreme Court to hear malpractice case with Facebook posts used as evidence

By Kacie Whaley | Oct 2, 2017

HARRISBURG - A woman who claimed several medical providers failed to diagnose her with Lyme disease will be taking a medical malpractice suit to the Pennsylvania Supreme Court and have her Facebook posts used as evidence against her.

Alexander M. Capron, a professor of law and medicine at the University of Southern California, told The Pennsylvania Record the Pennsylvania Supreme Court may not be reluctant to "allow a statement on social media to be used as evidence of state of mind."

"I find the social media statements as rather beside the point, since it seems to me that she had enough information by 2009 to suspect her previous physicians had misdiagnosed her and she could have sued them then," Capron said.

Capron said the court ultimately will have to decide, though, whether the statements the plaintiff made on Facebook "so clearly establish that she did know that the doctors may have misdiagnosed her condition that there is no issue on which reasonable jurors could disagree."

Nancy and Nicholas Nicolaou filed suit against several medical providers alleging malpractice, according to the Superior Court of Pennsylvania opinion, filed Dec. 22, 2016.

In the suit, Nancy said she was bitten by a tick in 2001 and experienced various symptoms. She went to the defendant providers and was tested for Lyme disease four times. All the tests were negative, but an MRI suggested she had either Lyme disease or multiple sclerosis. Nancy was diagnosed with multiple sclerosis and was treated for the disease throughout 2008, the suit states.

But Nancy suspected she had Lyme disease and began seeking treatments with Rita Rhodes, a nurse practitioner, from 2009 through 2010, the suit states. Rhodes prescribed her antibiotics, which allegedly began improving Nancy's condition. Rhodes recommended Nancy take an IGeneX diagnostic test, and when she did, the results came back positive for Lyme disease, according to the suit.

The court's Dec. 22, 2016 opinion states that Nancy then took to Facebook to reveal her diagnosis and acknowledged that she knew she had Lyme disease previously:

"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 answerd my prayers!!!!!!!!! Now its all in your hands!!!!!!!!!!!!!"

She filed the lawsuit against the medical providers in 2012, and the defendants asserted an affirmative defense arguing Nancy was in violation of the statute of limitations because she had not been treated by them since 2008. Nancy responded that the discovery rule applied because she would not have been able to discover any negligence until 2010 at the earliest. The trial court granted summary judgment to the defendants. In an appeal, the superior court reversed the trial court's judgment.

After the defendants filed a motion to reargue, the superior court reinstated the trial court's decision. The superior court said to claim that the discovery rule applied, Nancy would have to show she was unaware of the injury and its cause. She argued it should apply because although she thought she had it, it had not been confirmed until 2010. The court considered her Facebook messages and stated the posts “bear on the fallacy of her claim on appeal that 'she didn’t believe it,'" the superior court's opinion stated.

Nancy appealed and in August the Supreme Court of Pennsylvania agreed to hear the case.

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