Law Times

Law Times • November 26, 2018 Page 9 www.lawtimesnews.com 'Natural progression' in case law Dancer ordered to turn over social media photos BY MICHAEL MCKIERNAN For Law Times P laintiffs should loosen their privacy expecta- tions as courts fumble their way toward a test for social media production in personal injury litigation, ac- cording to a London, Ont. per- sonal injury lawyer. In Isacov v. Schwartzberg, Ontario Superior Court Master Donald Short ordered the plain- tiff, a former professional ball- room dancer, to turn over Face- book and Instagram photos to the defendant on the eve of trial in her multi-million-dollar per- sonal injury case after a private investigator became aware of the accounts at a late stage. The master declined to order costs of the motion for produc- tion, suggesting the plaintiff should have mentioned the ac- counts earlier and that the de- fendants had also missed oppor- tunities to ask about them. "I am satisfied that in the present technological environ- ment there is a need to include Facebook and similar on line data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party's Affidavit of Documents," wrote Short, later adding that the defendant's failure to seek such documentation earlier "has added expenses to both sides that could have been avoided if ap- propriate questions were asked at the discovery of the plaintiff or prior to the mediation." Maia Bent, a London-based partner in the personal injury practice group at Lerners LLP, says the ruling is a "natural pro- gression" from the growing body of case law in the area, much of which was recounted in Short's decision. "The courts are moving to- ward articulating some kind of test for social media production, but there still isn't a great deal of consistency in the factors con- sidered or how they are weight- ed," says Bent, a former president of the Ontario Trial Lawyers Association. She says one of the more interesting steps forward in Short's decision is the sug- gestion that social media data should be outlined in a plain- tiff 's affidavit of documents. According to Short's deci- sion, Maya Isacov launched her action following a 2012 accident in which her right foot was run over by the defendant's vehicle. The former professional dancer sued for general damages of $1 million plus a further $2 million in special damages, claiming the injures she sustained crushed her plans to resume her career, since she was rendered unable to run or wear high heels. During an assessment with a psychologist, Short's decision says Isacov also reported losing interest in going out with friends or shopping, preferring instead to "stay home and watch some- thing that would get my mind off everything." However, a private investigator hired by the defen- dant's insurer uncovered photo- graphs in May of this year that appear to show Isacov socializing and wearing high heels on Face- book and Instagram accounts belonging to another person. Comments underneath some of the posts also alluded to Isacov's name, prompting the defendant to request production of all her social media accounts from three years pre-accident up to the present, despite a looming trial date then scheduled for No- vember. Without admitting or deny- ing the existence of social media accounts controlled by Isacov, her lawyer refused the produc- tion request at such a late stage. However, Short found it would be "manifestly unjust" to deny the defendant's motion, given Isacov's "failure to include in her affidavit of documents to any reference to on line data that the plaintiff has not asserted does not exist." Lianne Sharvit, who acted for the defendant, says the facts of the case were fairly unique but weighted in her client's favour. "We had compelling evidence to suggest there could be further social media content out there that may be helpful," says Shar- vit, a Toronto insurance defence lawyer with Devry Smith Frank LLP, who also has experience acting for plaintiffs in personal injury actions. "The lesson for plaintiffs is that you need to be careful, be- cause anything you put on social media can be used against you in litigation," Sharvit adds. Mariam Moktar, a civil litiga- tor with Lenczner Slaght Royce Smith Griffin LLP, says the deci- sion has lessons for both sides of the personal injury bar. "At the outset of litigation, lawyers for both sides should be asking pointed questions of the plaintiffs to decipher whether or not they maintain social me- dia accounts and, if so, whether they contain anything relevant," she says. "The mere existence of a Facebook account is insuffi- cient to require production, but I think counsel, in explaining to their clients what is to be includ- ed in the affidavit of documents, needs to ask more targeted ques- tions about what pictures are on there." LT FOCUS I n 1978, Justice Holland decided Yepremian v Scarborough General Hospital, a medical malprac- tice case in which the delayed diagnosis of Tony Yepremian's ("Tony") diabetes was found to have caused his brain injury. In the early course of Tony's admission to Scarborough Hospital ("the Hospital"), prior to his diagnosis, he had been treated in the intensive care unit by an internist, Dr. Rosen. At trial, Justice Holland found that Dr. Rosen breached the standard of care and that his breach was causative of Tony's injury. The only problem: Dr. Rosen had not been sued. In finding for the plaintiffs, Justice Holland held that the Hospital owed a non-delegable duty of care to provide quality care to Tony and, in the circumstances, that it was liable for the negligence of Dr. Rosen. Unsurprisingly, the Hospital appealed. The Court of Appeal ("ONCA") framed the central question: "Does the hospital undertake to provide that medical care, or does it undertake to select competent doctors who will provide it?" 1 Although the appeal was allowed, the dissent was strong. Both Justice Blair and Justice Houlden shared the trial judge's view that the hospital should be liable for the system's failure, includ- ing the failures of non-employee physicians, as "it remains responsible for the proper operation of the hospital system and the related functions of record-keeping and the effec- tive transmission of information within the institution." The dissenting opinions importantly acknowledged the changing social context by which hospitals were not simply "agencies" housing medical equipment and staff, but rather complex organizations with expanded roles in the delivery of medical services. In September, 1980—less than four months after the ONCA decision was released—the Supreme Court of Canada granted leave to the plaintiffs. The appeal was nev- er heard. The defendant hospital reportedly paid to the plaintiffs a sum close to $1,800,000 (more than four times the amount of awarded damages at trial). Forty years later, despite the strong dissent, Yepremian is widely cited as au- thority for the principle that non-employee physicians with hospital privileges remain directly liable to their patients. Simply put, adherence to Yepremian is at odds with the delivery of contemporary hospital care (which is team-based and collaborative) and the manner in which fault-based medical injuries occur. In 2008, for example, Harvard researchers examined the prevalence of system factors in medical injuries, finding that 66% are attributable to error involving both individual and systemic factors and that, in most cases, individual failures are a "necessary but not sufficient condition for injurious errors to occur." 2 Oth- er scholars argue that upwards of 85% of medical errors are reflective of systemic errors. 3 The bifurcated approach to medical negligence liability—requiring plaintiffs to sep- arately sue physicians and hospitals—is not only outdated, but a battle lost before it has even begun. We are overdue in reexamining the applicability of Yepremian altogether. 1 1980 CarswellOnt 612 (CA); rev'g 1978 CarswellOnt 573 (OHC) at para 44 [Yepremian]. 2 "Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries" (2008) 96:1 Georgetown L J 599 at 610. 3 Marilyn M. Rosenthal & Kathleen M. Sutcliffe, eds., Medical Error: What Do We Know? What Do We Do? (San Francisco: John Wiley and Sons, Inc., 2002), citing Committee on Quality of Health Care in America, Institute of Medicine, To Err is Human: Building a Safer Health System (Washington: National Academy Press, 2000). See also: Lorian Hardcastle "Governmental and institutional tort liability for quality of care in Canada" (2007) 15 Health L J 408. By Sonia Nijjar Moving Past Yepremian Sponsored by Untitled-3 1 2018-11-21 8:28 AM Maia Bent says one of the more interesting parts of a recent Ontario Superior Court decision is the suggestion that social media data should be outlined in a plaintiff 's affidavit of documents. We had compelling evidence to suggest there could be further social media content out there that may be helpful. Lianne Sharvit

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