One of the essential elements of any personal injury cases is damages. An injured party must show not only that they were injured because of the negligence of another, but must also show their damages from that injury. “Damages” include not only the physical injuries, but also pain and suffering, lost wages, loss of mobility, and a detrimental impact on the life of the injured party. Wearable activity and fitness trackers, such as Fitbit and Nike Fuelband, are providing a new method of establishing damages.
Millions of Americans now use wearable activity and fitness tracking devices, and the trend is growing. These devices track data such as the number of steps walked or the distance traveled in a day. Some devices also track the wearer’s heart rate and quality of sleep. Data from a fitness and activity tracking device from before and after the date of an injury can be used to show that an injured person is taking fewer steps or covering shorter distances after the injury. Devices that track heart rate may also be used as evidence of pain, as our heart rate tends to increase when we are in pain. Likewise, devices that track sleep quality can show that an injured person’s sleep has been compromised by pain.
Conversely, data from wearable activity and fitness devices can be used by defense counsel and insurance companies to argue that a person’s activity level has not been impaired by the injuries sustained. Device data can be requested directly from the injured person, but may also be obtained from the device’s manufacturer in some instances. Data from fitness tracking devices is not always protected by the Health Insurance Portability and Accountability Act (HIPPA).
If you have been injured due to the negligence of another party, make sure to let your attorney know if you do or did wear a fitness tracker before and/or after the injury occurred.