On a brand new “I Strenuously Object” podcast, attorney Bill Rogel and “Founding Father” Shawn Flaherty discuss the legal ramifications of the Ohio plastic surgeon Katharine Roxanne Grawe who had her medical license revoked because she was live-streaming her operations on TIKTOK and had made surgical errors to three patients while doing it.
Known as “Dr. Roxy” to her many fans, Dr. Grawe had been previously ordered by the Ohio medical board to stop live-streaming while operating, but had continued to broadcast her surgeries despite the warnings.
The controversy raises several questions:
Did all her patients know they were going to be on TIKTOK while unconscious?
What is the “standard of care” when it comes to medical malpractice and how was it violated here?
Should ALL surgeries be recorded as a matter of course to help settle med mal lawsuits?
And…Should Dr. Roxy lose her license permanently?
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Please rise. Court is now in session.
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I strenuously object. A legal podcast brought to you by the Pittsburgh law from a Flaherty Fardo is now in session.
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All those seeking information about the law and legal matters affecting the people of Pittsburgh and the Commonwealth of Pennsylvania, half-baked opinions, and a dose of self-indulgence are invited to attend and participate.
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I want the truth! You can't handle the truth!
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The defense strenuously objects.
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You would!
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Call the first witness.
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Alright, welcome back to I strenuously object. It's summer here in Pittsburgh. It being summer and us being attorneys. Noah's not here with us today and here in his stead as somewhere in between, I suppose, a guest and a guest co-host is our founding father. It's Sean Flaherty.
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Founding father.
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Sean, how you doing?
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I'm doing well. Sounds like I discovered the country in 1776.
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Hey, I didn't call you founding grandfather. So I think that's, you know, that favor I offer for me.
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By the way, just as an aside, do you know that the founding fathers in 1776, the average age of them was like 21, 22?
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It reminds me of when you look at pictures of baseball, like photographs of baseball players from like the early, early 1900s and they all look like they're 60 years old because they worked a job where they were in the sun every day and sunscreen hadn't been invented. And they're just weathered, man.
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The founding fathers in their in their powdered wigs and and, you know, and lack of skincare regimes. I guess they all look pretty old too.
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21, geez oh man.
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They're founding children at this point.
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Right.
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Anyway, we're here today to talk about a case that's been all around the news the last the last week or so here and with which I assume, Sean, you are familiar, which is the case of the now somewhat notorious Dr.
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Roxy, a plastic surgeon in Ohio who just had her medical license revoked by the state board because she's been filming and live streaming TikToks from inside the operating room as a plastic surgeon.
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You're familiar with this case. Yeah.
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The Ohio State Medical Board didn't just take away her license suspended or indefinitely. It was permanent. They were adamant that 12 members came to a unanimous decision that it was a permanent removal from her law medical license.
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And we'll come back to this a little bit procedurally, not that talking about the professional discipline processes for the Ohio State Board of Medicine is exactly four square within within our typical practice area.
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But I think we do want to give a little bit of like legal background and understanding as to how that process works. But but for any listeners who are not specifically familiar with Dr.
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Roxy, I think there's some important things to point out here, one of which is tone.
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Right. These were sometimes educational, sometimes not, but typically pretty lighthearted TikTok videos. This was not, you know, of the somber tone of those old cable access medical procedure videos that used to air back in the 90s at four in the morning where you could watch someone's knee getting operated on.
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She was even going as far as having kind of question and answer sessions in these TikTok videos.
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So if you want to get in the OR and see behind the scenes and how this stuff works.
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The other thing that's important as a measure of background here is the Ohio Board had previously reprimanded her required her to attend some remedial continuing professional education classes and generally told her to stop doing this.
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That they did.
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I think that's an important fact. This is not the this is not the first time that this has been addressed by the professional licensing board. But I guess the first place I want to start Sean as we talk about the procedures in the situation here a little bit.
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We're medical malpractice attorneys, malpractice and professional discipline or the requirements of your kind of professional boards of conduct are not the same. Correct?
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Correct.
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And I think that's important to note one doesn't necessarily imply the other. So for example, you can do something that violates the code of professional conduct or whatever your ethics or professional rules are without your conduct rising to the level of malpractice.
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Your your professional boards theoretically set a higher standard of professional conduct than what the law.
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It's it's clear that there is what they call the standard of care and the Ohio Board was very direct that this woman violated the standard of care.
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Now that in of itself doesn't lay away a plaintiff's case because you have to have harm.
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They did go on to distinguish three examples where this woman not only didn't meet the standard of care and she puts it on film where they can view it.
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They watch it. She's violated the standard of care right there on cinematic film.
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Take one action and the plaintiff's just hurt. So yeah, I mean that is a slam dunk. I mean as plaintiff's attorneys, you never get that.
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I think that's an interesting insight and I want to circle back to it. Right. But it is important to note that not every time you know you can have a case where either from a settlement or even a jury verdict finds professional malpractice.
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That doesn't mean that there's going to be any effect on a doctor's ability to continue practicing simply committing medical malpractice does not necessarily lead to getting in trouble with your professional board.
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Similarly, just being sanctioned by the professional board that sanction in and of itself is non admissible and does not create what you call a private cause of action.
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Now, this is interesting in part because here part of what the Ohio board did was talk about specifically the medical standard of care.
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So their findings and their inquiry overlapped with what the inquiry would be in a medical malpractice action.
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But the lack of profession was an important judgment that all gave your responsibilities to others appears to have significantly contributed to recalling below the standards of care.
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But as other examples right you know lawyers are also subject to professional licensure and you know the rules of professional conduct and that covers things like what you're allowed to do in your advertising.
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You know what continuing education classes you have to take.
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You know how you have to handle your you know your client money accounts.
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All of those things where if you violate them you can get into hot water with the professional board even if no one's harmed and no one has a lawsuit against you.
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These things operate typically on totally separate tracks.
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But here in defending the sanction that they imposed the Ohio board specifically came out and said hey three patients have been harmed by your deviation from the standard of care.
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Dr. Robertson claims that this will change her life forever. Well she has single handedly forever changed the lives of these three people.
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And that's basically although they don't you know it's you'll still have to go and prove your case in an actual court of law to win the malpractice action.
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But that's basically the Ohio State Board saying I have found the elements of a viable medical malpractice case here.
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And I think they went on to look at another aspect of the case was the patient's rights of privacy.
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There was a real question whether her authorization to film these procedures and the patients knowing about it and waiving their rights to privacy.
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I mean and that it was going to be on TikTok.
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I mean can you imagine if you were a patient of a doctor they put you under and then you wake up and your family finds oh my gosh is that mom's leg on TV.
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I recognize the birthmark or whatever. I mean and you go well I didn't know that.
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I mean the humiliation the embarrassment of the whole thing.
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I can imagine a lot of people be pretty upset if I found out that I was under surgery and I was in a very unconscious state and being filmed at the same time.
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I'd be furious. I would absolutely be outraged.
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Good morning. Oh and in case I don't see you. Good afternoon. Good evening and good night.
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I don't want anyone to be seeing my Brazilian butt lift. That's for sure.
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Well it certainly does create a round of privacy and I can imagine those people would have been hugely upset and I don't think the lawsuits are quite over yet for that Dr. Roxy.
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Mike the podcast producer jumping in here. I have a question.
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After the first time it happened someone was injured while she was live streaming.
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After the second time it happened were there not lawsuits there and how could she in good conscience do it again knowing that she had made these kinds of mistakes.
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So a couple things there is best I can tell and certainly not having tried to review any particular court filings in this case.
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I'm not sure if they ever reached resolution but it looks as though the three cases they're talking about that the Ohio State Board is talking about our cases where lawsuits have been filed or at least where an attorney has been engaged.
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Because I've seen some interviews with him from earlier in the process and it might be the same attorney handling all three cases.
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I'm not 100 percent positive on that. But yeah in short there there have been lawsuits filed.
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I think there have been lawsuits filed in literally those three cases identified by the state board. If there haven't been there will be now.
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Ohio has a pretty short statute of limitations. I think they got a one year statute for medical malpractice.
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So those things have to already be pending or the time will have will have lapsed on that. Now there could also be causes of action by people who haven't had any medical ill effects but whose privacy have been violated if it's a HIPAA violation or a violation of their rights.
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Those are a little bit different but there's so much blood in the water here that if someone out there now as a patient has decided that hey I don't think I really agreed to being filmed in this way and they want to to bring a cause of action potentially.
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A HIPAA act or other kind of statutory violation for a violation of their rights.
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The statute of limitations on those is going to be longer and there's going to be a high inclination here for some measure of success or results to continue slapping this doctor down.
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But Mike brings up an excellent question. The woman was warned I believe more than once from the Ohio medical community.
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You have to cease and desist the filming of these TikTok videos and I think the original ones were not for damages of negligence or medical malpractice but for privacy.
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And I don't think she cleaned up her authorizations to the plaintiffs at all. She ignored it. And why Mike? I don't know.
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I mean I did watch her film when she appeared before the board after they had come down with their decision and she had a brief five minutes in which to address the board and she expressed a lot of remorse.
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She did seem very remorseful. She said she was trying to make it fun and make it interesting.
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And sometimes I did silly or fun videos simply to make people smile in this world which was often negative and difficult now.
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But still if you are under a possible suspension I mean you've got to question how much fun are you really providing and I mean these people have to have their privacy issues come first and she didn't see it that way.
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I think she really felt that she was above it and beyond it and allowed the TikTok.
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People do that with social media when they get so many followers they become rather ingratiated by the overall power of it because each day she's getting a new follower.
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I'm sure she was following her followers tremendously. One, two, three, seven hundred, eight hundred. I mean and counting them up.
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And she just felt that that power of the of the social media numbers went out way the board and she was wrong. She got slapped pretty hard.
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And now contra the privacy issue and it's going to depend case by case right.
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And that's the thing when you're doing something like this you better have your eyes dotted and your teeth crossed and clear consent from everyone you film.
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But a lot of the patients who were going to this practice were going there because of her TikTok videos. They'd seen her on TikTok.
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I heard one of the patients who ultimately had malpractice inflicted upon her.
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But saying hey I thought if there was this level of transparency that if she's willing to let people watch her do her procedures she must be really confident that she knows what she's doing.
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Can you imagine saying something like that when it comes to operating a car right. This guy must be one heck of a driver. Look he's comfortable driving with his feet.
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Well no. Well that would be my analogy too because if you had gotten into two traffic accidents texting while driving would you ever risk texting while driving again.
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And people do all the time right. But at some point you shouldn't. And distraction is part of the elements here right.
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Look there are there's a ton of shows on like TLC or whatever these these kind of reality TVs that follow a couple patients going through going to doctors over the course of a whole episode right. There's this doctor pimple popper or you know a plastic surgery shows whatever it is.
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And here they've got whole production teams that are clearly filming consults with patients things in the operating room.
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But the thing is they're not being live streamed and the doctor is not the one who's kind of trying to also film and produce her own videos. They're less distracted. Some of this question in some sense comes down to a common sense and a visceral common sense determination right.
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Obviously if you're not getting consent from people there's a privacy issue.
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But from a medical malpractice perspective I don't know that it's necessarily per se malpractice simply to have cameras or be filming videos that are taken in an operating room.
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Was that wrong. Should I not have done that. On some level you're all it's always going to affect you you're always going to have to be kind of performing a little bit we see this with lawyers all the time when there's cameras in the courtroom the lawyers performance changes
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and the camera and not just the jury or the judge anymore. But on some level it's just a visceral question of is this doctor who's doing this and we're seeing her video.
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Is she going to be too distracted to be able to safely perform these procedures. And I think people who watch that video and watch her tick tock videos might have that concern and say yeah she is way too interactive and way too into her video to be paying full attention to the surgery she's performing.
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She did it wrong but let's take a look at it from the other side. She did have an opportunity to do it right. She could have had the correct authorizations she could have had the correct people filming it if she had done it in a professional way and had rather than try to be cheap about it or cut corners.
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She could have done it in a right way that I don't think the state board if she hadn't committed malpractice it would have been able to shut her down. So she had the opportunity to do it right. She just did it wrong.
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Well let me ask you a question about doing it right. You had mentioned earlier how nice it might be as a plaintiff's lawyer to have that. I'd like to consider for a moment instead of punishing Dr. Roxy for the way that she filmed these videos.
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What if we just filmed all surgeries? I mean wouldn't that be great for plaintiff's lawyers? How many times are we trying to make a case and we look at the operative report and the operative report reads like they did the surgery okay.
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And so we talk to an expert and the expert says you know as I read this I can't tell they did anything wrong. Now maybe they did this or maybe they did this but I can't prove that. I don't know. Boy it would be nice to have those surgeries on video wouldn't it?
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They ask why doctors have such bad handwriting. It's because they have to do operative reports and they don't want anybody else to read them but themselves.
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You know you could argue whether it's intentional or whether it's a beneficial survival trait that propagates through over the generations right. Like Darwinian selection among the doctors here the ones with clear handwriting get thrown out first.
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You can kind of film this like a documentary but she's clearly doing this from a marketing perspective right. Like she's filming these TikTok videos not just to inform but to build her brand and get more patients.
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And we're in a weird marketing world in the world of social media. I don't want to be entirely unself aware in this regard as we're engaging in the activity of recording this podcast of criticizing someone else trying to use social media as a professional to market.
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But I mean I think it's as simple as you can be a doctor, you can do TikTok, you cannot be a TikToker.
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TikToker. Oh I like that. That's a good one. A TikToker. We should patent that and we can make a dime off of it. We should.
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He's been waiting all podcasts to say that.
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That is correct. I've got it written real big here.
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Okay the other question I want to ask is kind of a bit of an aside but we've been talking about use of social media and I do want to ask a tangentially related question here to you Sean which is as someone who is a party to a lawsuit how should I be interacting with social media.
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Let me tell you something. If you are a party to a lawsuit or think you're going to be a party to a lawsuit you had better take a real close look at your social media because it is going to be examined.
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And you think you take it down and that it's gone away. Well that's not the case. The subpoenas etc. and so forth have the ability to pierce all of that and your social media could come back to haunt you.
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You better know that your social media is being watched the minute you think you may have a lawsuit.
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But the fact of the matter is your social media can haunt you the minute you think you have a lawsuit.
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You better be very careful of what you put up because if you post pictures if you healthy it's going to come out and if you are healthy then you have to ask yourself whether you really should be deserving a lawsuit.
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But people try to manifest this ability that they are healthier than what they are. Everybody on social media wants to look as though they're fine and healthy and happy and they're competing with everybody else that's fine healthy and happy.
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And as you portray that and even though you're still in a lot of pain you're going to be in trouble because they're going to say here Joe X Jane Doe.
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They're they're partying and like rock stars and they're healthy and we shouldn't be giving them money. And in the meantime that was just a post of one second but that's what happens. It will haunt you.
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And that's right Sean. I mean look how do most people who who aren't involved in kind of personal injury cases and aren't involved in lawsuits how do they use social media.
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I barely do. So if I'm speaking out of turn here I trust someone more knowledgeable and I will correct me. But my sense is most people what they're trying to do is put forward the best moments of their best days to make their life look as great and happy and successful and interesting as possible.
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There is a minority of users of social media who are kind of in it for sympathy and can't wait to post about everything that's happening wrong with them in their lives and that's a different issue.
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Every single day of my life has been worse than the day before it. So that means that every single day that you see me that's on the worst day of my life.
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But I think most social media users what they're doing is trying to frame the best shot that catches them in the best light that makes their life look the best it can.
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And look that's normal and there's a lot of studies about the psychological harm that consuming social media does to people because they see everyone else's best days and moments all the time and it makes them unhappy with their own lives.
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But when you're in a personal injury case if you've got two years of social media posts that are making your life look the best it can possibly look.
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It's really easy for a defendant in a case to come forward and just show those two years of social media posts or pick the best third of those and say, does this person really look like they're suffering that badly?
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And you've made your own bed there right? You've put out there the same narrative of the defense ones to tell about your life and put it out there and just handed it to you.
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I can guarantee you if you have social media and you are a plaintiff to an action your entire social media history is going to be reviewed.
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It's going to be dissected and if it can possibly be used against you it's going to be used against you. End of story.
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And some practical advice I think to people who are in this situation.
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One, if you're not set to private set it to private don't make it easier for the defense to look at what you're posting on social media.
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They'll still be able to get it eventually. Setting it to private doesn't make these things cease to exist or make it so the defense can't find them.
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But it at least means their lawyers can't just search you on Facebook and print the whole narrative themselves.
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And they should also be aware of this. The use of private investigators is incredible in today's world.
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They love nothing more than to videotape you walking from the car to the grocery store and try to get a shot of you without the limb or without the cane, without the pain.
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So be aware of that. It's not just social media. There's private investigators out there.
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And once they become aware of a possible big potential action you're going to be followed.
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Relax man. I'm a brother shamist. Brother shamist? Like an Irish monk?
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If a private investigator follows you eventually we're able to figure out that they sent an investigator and see the video and see what they wrote down.
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But the private investigator doesn't film the times in the day or the parts of the time they're following you where you look hurt.
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They only film the best two minutes that they find where they followed you for three days.
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And here's the biggest thing when you talk to a client.
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Everybody thinks, oh my life is not worthy of being pursued by a private investigator or nobody's going to see me that high up on the radar.
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Likewise, they think the same thing with their social media that they don't rise that much on the radar.
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But if you're a plaintiff to an action in today's world, you can be assured you're going to be your social media is going to be dissected A without a doubt.
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And there is a very large degree. There's a very high degree of probability that the private investigator is going to be tailing you at some point for different periods of your life.
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Trying to find, like you said, Bill, photographs, video of you not adhering to what would be some symptom of your lawsuit.
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We had a client who suffered an injury to her leg.
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And among the claims for damages here is, you know, because of the injury to my leg, I had to stop wearing high heels.
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And that was a true statement.
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Like, it's not like literally she could not put one on her foot anymore.
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And so what happens? They had a private investigator follow them to a funeral home.
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And when she went to the funeral, she tried to put on high heels and she went in high heels and she walked in in high heels.
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So she had to take them off at some point and switch shoes.
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But guess what? We got back pictures of her walking in high heels in a formal dress, going into a funeral home.
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Now, it seems to me you're going to have to be accountable for the fact that your private investigator tailed someone to a funeral home.
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But they're not, right?
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People are people and jurors are so willing to believe that plaintiffs and personal injury actions are making it up or seeking a payday that all you have to do is give them a little snippet of information to believe that the plaintiff is faking it or exaggerating it.
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And that's all it takes.
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And they're paying their entire verdict on that fact.
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Hey, I saw that video.
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You said you can't wear high heels anymore.
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And I saw you in high heels.
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I mean, it really hurts you.
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And, well, you know, you have to live your life to some extent.
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You need to be aware that there are people going to be following you and you need to not, you know, you need to not take it personally when it happens and you need to not, you know, go do things that are completely ridiculous.
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But I mean, what are we going to tell our client? Don't go to the funeral home because there's a chance that someone might try to film you.
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You don't know what day they're coming.
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Right.
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So, you know, I don't know how actionable it is to tell someone, hey, just hunker down and stop living your life because someone could be filming you at any time.
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But that kind of gets back to the social media questions where here you're doing that yourself.
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You're like your own PI private investigating yourself and then posting it online for everyone to see.
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Well, most people who are injured have to attempt to go on with their lives as best they can.
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They can't just all of a sudden drop off the planet.
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And social media is part of that.
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Right. Well, social media is part of that.
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But so is living your life.
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And people, even though they're in pain, can still be doing certain things to try to get through because they have no choice.
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What are their options?
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I mean, if you've got the grocery shopping to do, they can be in pain while they're doing it.
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But there doesn't mean that they're still not injured.
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Life goes on.
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We just have to recognize that they're in pain.
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And it takes years to get a case from when it begins to when it concludes more often than not.
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Like, this is not a fast process.
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We're not going to tell our clients you need to hunker down at home and not go anywhere and not do anything from from now until three years from now, just in case, you know, a private eye takes a picture of you and it's unflattering and unhelpful.
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Your case, that is not a reasonable way to live your life.
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You can't impose that level of harm on yourself.
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Right. But as good attorneys, when we do get that position where our client was being followed by a private investigator, you know, we do have the opportunity to get a hold of all of the film.
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And say, OK, well, you know, you tried to present it to this.
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But also, where is the rest of the film that shows our client in the other positions?
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And they they only try to take the film at certain times when they can.
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So they limit that.
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But we do have the ability to get all of the film.
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And that can be very changing in some instances.
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I've had that happen.
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Yeah, we get to depose the private investigator.
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And if if what we get from the P.I. is, you know, 15 minutes of footage and 25 photographs, but they followed you for, you know, exactly 70 hours over the course of a week.
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Yeah. Now, all of a sudden, when you paint that whole picture, it doesn't look so bad.
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That's exactly what you get. You get 10 minutes of film and they had 60 hours of following them.
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And you go, OK, wait a minute. I got a real problem with this.
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You've got 10 minutes of film in 60 hours. I mean, that's a real problem that's got to be overcome in a court of law.
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And that's what we do.
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One of the claims that they're making that the Ohio Board of Medicine is making or talking about in some of this treatment is they've got situations where patients have signed waivers, right?
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Saying, yes, you can video me. But those patients are reporting, hey, I felt pressured.
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Right. This wasn't really fully freely given consent because I felt pressured.
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Now, in every single medical malpractice case, the doctors can't wait to wave around that informed consent form that they get the patient to sign.
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If patients can't if patients are under pressure to sign the video release, isn't every single patient under pressure to sign that informed consent document, whether they understand it or agree to it or not?
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Again, you know, I haven't witnessed the the the authorization to waive the privacy aspect, the whole thing.
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I don't think it's valid without consideration. I mean, how can she just get that for free?
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That's that is different than ascribing to a medical procedure.
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This is a contract where you are saying I'm allowing you to be filming and I am waiving a right.
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OK, what's what do we know about a contract case?
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You have to have an offering consideration in this situation. What is the consideration that the patient received by waiving their rights of privacy?
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Yeah, that's a fair question, right? I mean, do they do they do they cut them a small break?
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I've seen that in. Places where you authorized the and it's been with the plastic surgery group, right?
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You authorize them, they can use photographs of you and of your before and after as part of their marketing.
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And usually you get a small discount on the procedure or something as the consideration that comes back.
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But I fall back on the whole thing is Dr. Roxy could have done it right.
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She was in a facility that was not licensed to perform these surgeries.
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She had spotty checks on her authorizations.
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She was committing malpractice on video and she'd been warned and had, you know,
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had not tried to work with the mental community in trying to get through these warnings and they terminated her.
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But I do want to mention the one thing about that. It's not a final suspension.
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I mean, even though they say it's a final suspension, all of these state boards are appealable.
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So she is if she were in Pennsylvania, for example, eventually this would end up or could end up.
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You could appeal any state board licensing ruling and eventually this the Commonwealth Court will be the final arbiter, not the licensing board.
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Right. I don't I don't know the details of the Ohio process, but there is assuredly something right when you're when your professional licensing board suspends you.
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You can go to court to have them review that decision.
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I think because she was suspended for life and that was a very, very punitive aspect on behalf of the board.
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But I think she's already announced that she is appealing that to an administrative board in which they have in Ohio.
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Now you have to. It's your professional livelihood. Right.
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Well, what other option do you have? Yeah.
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I think that'll do it for today's episode of I Strenuously Object.
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Thank you so much, Sean, for for stepping in here and for co-hosting with me and for for taking the wheel as much as you did.
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I enjoyed it. It was fun. And what to do it again, Mike. If you have me over for coffee, let's do it.
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Will do. All right. And you audience. Thank you for joining us.
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If you like the show or really, even if you don't, please subscribe, rate and review us.
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Well, maybe don't review us if you don't like us.
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But do tell your friends or your enemies to check us out.
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If you have questions for our mailing it in segment or any other feedback for the podcast, you can email us and should email us at I object at PGH firm.
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We are on Instagram. That is at I Strenuously Object Podcast.
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And of course, for more information on medical practice or other areas in which we practice, if you've been injured in any kind of potentially civilly liable way, visit Flaherty Fardo's website at PGH firm dot com.
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And until next time, some parting advice.
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I was on TV. Did you see me?