If your health insurance company gave you the latest fitness tracker for free and said it would give you a discount for wearing it, would you take it? Many consumers have already said, yes!
In the last few years, employers and health insurers have been implementing programs to offer their employees/consumers discounts on health insurance premiums or cash incentives through the distribution and use of fitness trackers. The catch: users must submit their fitness data to employers/health insurers to cash in.
The purpose of these programs is to encourage an active and healthy lifestyle in order to lower the cost of health care. While this provides an area of evolution in the health industry, it also could lead to a new source of information in the litigation of personal injury claims.
Wearable technology in personal injury litigation
The rise in “wearable technology” has led many attorneys to find innovative ways to bring data from fitness trackers into the court room. Wearable technology encompasses devices people wear which contain smart sensors and wirelessly connect to smartphones through a web or Bluetooth connection. Certain types of wearable technology can track a user's activity and store the information for an unlimited amount of time.
In civil and criminal litigation, fitness trackers and smart watches are emerging as a potential source of information which could provide valuable data for the prosecution or defense of a lawsuit. From the defense perspective, it is easy to see how fitness tracking data could help prove that a claimant has recovered from her injuries and maybe even prove fraud in the claims process.
So far in published court opinions, claimants have been using this data to help prove their case. For example, in Canada, two court opinions reference Fitbit data to support the conclusion that the petitioners were entitled to disability benefits. In both cases, Fitbit data was used to support claims of insomnia.
Fitbits are fitness trackers that also track the quality of a user's sleep when worn at night. They use a combination of a heart rate monitor and motion detectors to identify and measure different sleep stages: light sleep, deep sleep and REM. Fitbit advertises that its trackers can measure a user's time spent in each sleep stage, as well as the user's time awake. The information from Fitbit trackers provided a valuable alternative source to prove the petitioners’ claims.
Additionally, a personal injury law firm in Canada outfitted their client with a Fitbit tracker with the hope of proving the data would support their claim that their client's activity was below average. When a personal trainer suffered injuries in an accident, fitness trackers were not widespread. Four years after the accident, the personal trainer's lawyers outfitted her with a Fitbit Force to show the plaintiff's current level of activity.
The lawyers gave the data to Vivametric, an analytics company, and the data was compared against activity levels of the general population as determined by “industry and public research.” Vivametric takes a single person's data, compares it to Fitbit's databank of collected and stored data from other wearers, and determines whether that person falls above or below the average.
In the United States, there are no reports of wearable technology data being used in the court room in civil cases, however, with the growing rate of wearable technology used by consumers, it appears to be only a matter of time. Furthermore, the use of this technology can go both ways – it can support a claimant's case or completely undermine their claims by showing that their injuries are not as serious as claimed.
Multiple insurers are offering policyholders the opportunity to earn discounts and other perks if they wear health tracking devices. (Photo: Shutterstock)
Health insurer incentive programs
The new area of expansion into wearable technology comes from the partnership between tech companies and the insurance industry, and companies are developing some creative programs.
Leading the charge is Oscar Health, a New York insurance company that partnered with Misfit, makers of fitness-tracking wearables, to create a member program that directly links biometric data to their health insurance coverage. The Misfit band serves as a pedometer that connects automatically to Oscar's app, which sets new daily goals for walking time. Those who hit the goal earn $1, while those who hit the goal 20 times receive a $20 Amazon gift card. The cap on rewards is currently $240 per year.
Then came John Hancock, which offered its users Fitbits and the potential to earn 15% off of their premiums for hitting targets. The company teamed up with Vitality, a provider that specializes in implementing wellness benefits with insurance coverage. Participants can use Fitbits to earn “Vitality points.” Those accruing enough points could receive a 15% discount on their insurance policy, roughly $91 annually, along with other rewards such as restaurant and shopping discounts.
Prudential VitalityHealth is using wearable data in the U.K., offering life insurance customers points towards rewards such as cinema tickets and free coffee, alongside reduced premiums.
UnitedHealthcare Motion provides daily incentives for step goals that total nearly $1,500 per year for an employee and spouse. The employer-sponsored wellness program under this insurer is called UnitedHealthcare Motion FIT (Frequency, Intensity and Tenacity). Wearers of the Fitbit Charge 2 get to track their physical activity and mark their progress, and are rewarded with credits that can be applied towards healthcare savings.
In 2014, AXA began offering its customers a free Withings Pulse fitness tracker. Participants who walk over 7,000 steps per day or more than 100,000 steps over a one-month period may receive discounts of more than $100 off of their insurance policy, as well as discounts off any Withings product purchases.
Other insurers are jumping onto the bandwagon as well. Optima Health rewards members with up to $275 in incremental steps, including a free Fitbit when they take part in its proprietary OptimaFit program. Cigna members can earn up to $750 per year in policy premium discounts, cash or HSA funds when they use wearable devices or sign up for wellness coaching. Aetna has met with Apple and the companies are in talks to start a partnership that would offer Aetna subscribers a discount on the Apple Watch and implement a program to encourage a healthy lifestyle.
Insurers seeking information from policyholders' wearable technology should develop a protocol for downloading the data from the fitness tracker they supplied their customer. (Photo: Shutterstock)
Health insurance programs & litigation
With all of these health insurers getting into the wearable technology industry, this provides a new avenue of discovery of fitness tracking data in litigation: we can request fitness tracking data directly from a claimant's health insurer by subpoena or with a written authorization from the claimant. Before, the only viable option was to request the data in discovery directly from the claimant.
Requesting the information from the claimant presents certain challenges. For example, when requesting the information from a claimant, counsel could object that it is burdensome to produce this data, the data is protected by a right to privacy and the request is not limited in time or scope.
To overcome a burdensome objection, the requestor can provide a protocol for easy download of the desired data collected by plaintiff's device. The protocol outlines step by step how to extract the raw data in a short amount of time. However, the bigger roadblock to discovery will most likely be objections based on a user's right to privacy.
When requesting the same information from a claimant's health insurer, objections to privacy will be totally moot. Claimants waive their rights to call the data private when they voluntarily submit it for analysis to their health insurer and gain financial incentives from it. If an attorney requests this data directly from the claimant, it will be important to establish how the claimant shares this data. To bypass this process entirely, include the request for any fitness data submitted to the health insurer as part of an established incentive program in any third-party subpoena being sent to a health insurer for payout and lien information. As long as the request for this data is limited in time and scope, it will overcome any burdensome and privacy objections the claimant could raise and takes the process out of the claimant's hands.
Many health insurer programs are still in their infancy, so it will take time to see major dividends from these requests. Given the growing number of programs and increased use of wearable technology in general, the use of fitness data in personal injury litigation will soon become a fact of life, and these programs could be a major pathway to the discovery of additional information.
Nanci Schanerman (email@example.com) is an associate at Clyde & Co, a global law firm. She focuses her practice on civil litigation matters, including complex products liability, class actions, premises liability and general liability cases.